Legal News

China Law: Change Is The Only Constant

International lawyers in China

Interesting article in the most recent Harvard Law Bulletin, entitled, Why China? [link no longer exists.  Article is an interview with Harvard Law Professor William Alford on the development of China’s legal system.  Professor Alford knows whereof he speaks.

Professor Alford talks about how “China is engaged in the most extraordinary effort at legal development in world history — raising fundamental questions not only about a singular rising power that is home to roughly 23 percent of the human race, but also about the very nature of law itself:”

To understand this, one needs to step back and appreciate the magnitude of change under way there. Transformations — including massive industrialization, urbanization and engagement in the world economy — that took place over more than a century in Britain and a half century in the U.S. have occurred in China within a far shorter span. It’s essentially the lifetime of our students, as I like to tell them. And unlike the English or American cases, this change in China started from a baseline of a planned economy and is occurring against the backdrop of global institutions like the World Trade Organization.

The scope of such change is hard for us to fathom. In a single generation, some 150 to 200 million people — more than the population of Japan — have moved from the countryside to cities, making this history’s largest internal migration. Individuals are increasingly able to make key life decisions about employment, education, housing and even marriage, that a generation ago were largely out of their hands. In 1980, China was a highly egalitarian, if very poor, society, but today it has some of the world’s greatest disparities economically, juxtaposing an upper stratum that is wealthy even by First World standards with a bottom stratum that remains impoverished even by Third World standards. And throughout, the Communist Party has been trying to retain its hold on political power, in the process exerting influence over the institutions of civil society — such as the media, the academy, religious institutions and civic associations — that might ease such major transformations.

Alford then talks about how law has become “crucial to facilitating China’s development and engagement in the international economy:”

As the economy and society have become vastly more complex, with more and more strangers dealing with one another, there is a growing need for rules. Some also look to law as a surrogate for freer political and civic institutions — that is, they hope to be able to express through law interests that are still difficult to advance directly via politics.

Lurking behind all this is the question of whether the government will cede sufficient independence to legal and political institutions so that they can provide outlets through which the inevitable discontent that comes from such rapid transformation can meaningfully and constructively be channeled.

The nature of Chinese lawyers has also undergone major changes.  Less than 25 years ago, China had 3,000 lawyers, most of whom “had a Soviet-style education and had not been allowed to practice during the decade of the Cultural Revolution.”   Today, China has around 150,000 lawyers.  “There is similar growth under way in the court system, the legislative process, legal education and many other aspects of the legal system.”

Alford praises the changes but notes they have not come without problems:

On the one hand, these are developments without precedent in world history, and we would do well to credit China with what it has accomplished. On the other, they have engendered the kinds of problems one might envision such sudden, large-scale, top-down change might bring. For instance, there is a dearth of wise gray heads to mentor the thousands of new lawyers — there are scarcely any lawyers over the age of 50 — and serious questions remain about the bar’s independence from the state, to mention some of the most critical challenges.

Professor Alford is of the view that Chinese legal history is important to understanding its present and that history is widely misunderstood.  He sees China as having “a long, rich and under-appreciated legal history:”

China had a sophisticated legal tradition that encompassed business, administrative, family and other concerns, not just penal matters, that there was an acute concern with justice, and that ordinary citizens did avail themselves of legal remedies.

This dispels suggestions that there is an antipathy in Chinese civilization toward law. And it’s useful to keep in mind when delving into specific questions. For instance, Chinese attitudes toward intellectual property — the protection of which is a major source of tension in the PRC’s relationship with the U.S. — bear the imprint of historic approaches, as I wrote a few years ago in my book on the subject.

Professor Alford believes the U.S. has much to offer China in helping it develop its legal systems, but he wisely counsels that any such assistance come “with an appropriate air of humility.” The U.S. must avoid presenting U.S. law as China’s only option:

Our lack of a broader comparative framework leads us to present the Chinese with only the American alternative to what they now do. Our advice would be much-enriched if it set forth a variety of alternatives, underscoring both core principles that are widely shared by democratic, law-abiding states and the range of different institutional forms through which such principles might be promoted. This would be far more empowering — it would suggest that the Chinese might design institutions suitable to their own circumstances to embody these core principles rather than endeavor to emulate institutions that may, in some respects, be peculiar to our own circumstances.

Good advise for we international lawyers who deal with China and with China lawyers every day.

Professor Alford is right to highlight the massive changes in China’s legal system in the last 25 years. Without exception, every lawyer with whom we work in China is under 45 years old and China’s laws are so new that even its judges complain to us about the lack of any real precedent. The massive changes China’s legal system is undergoing make this an exciting time, yet also call for patience.

8 responses to “China Law: Change Is The Only Constant”

  1. Since most US politicians have a legal background, lawyers have disproportionate influence within the US political system, according to the views of many Chinese I have talked to.
    The benefit of developing its own corpus of law relatively late is that Chinese are able to compare the legal systems of modern societies, and choose the elements which best fit China’s unique situation. They are now comparing European Union, Japanese and UK law, as well as American law, in order to form their modern legal system.
    One common misconception Americans have is that Chinese have never had a respect for IP protection. This lack of respect for IP law really only came with the establishment of the PRC, and was pushed further during the Cultural Revolution, a period which the Chinese government officially claims was a disaster.
    In fact, IP laws were enforced by Chinese imperial courts in the Qing Dynasty (1644-1911) in major domestic business disputes.

  2. China is an ancient country with brilliantly history. The Chinese used to be decent, courteous and respectable. They valued nothing more than courage, credibility, loyalty, morality and integrity to their superiors, families and friends. China had played a crucial and vital role in archaic Asia and exerted enormous impact on its neighbors in terms of culture, institutions, languages, philosophies, laws, etiquettes, etc.
    The situations nowadays in China, however, have changed dramatically and negatively. Nobody cares any more about the virtues which have been passed down from their ancestors. Everybody just concerns their own interests, indifferent to others. They are goal obsessed, money oriented. They place such a high attention on the economics that the ethical level has unprecedentedly deteriorated to worst status. Lies, betrayal, piracy, counterfeit, fraudulence has become ubiquitous.
    I hope some lawyers and politicians with conscience would come to Chinese government’s rescue to help them not only enhance and complete the legal systems but also reconstruct the social morality and ethical behaviors.

  3. Paul —
    Thanks for checking in. I read somewhere that well over half of China’s leading political figures have engineering degrees. As much as I like and respect U.S. laws, I would never advocate any country take them on lock, stock and barrel. You are right that China is pulling its laws from many places and I think they are doing an excellent job at it. China’s laws are some of the best and most modern in the world. Now, they just need to start working on enforcement.

  4. Johnny —
    Thanks for checking in. China is obviously going through tremendous changes right now and tremendous change has a tendency to unmoor people from their history, their culture and their ethics. A good legal system can slowly help in terms of ethics, but it can only do so much.

  5. But I just can’t understand why the Japanese,onced influenced greatly by China and underwent drastic changes since 19th centry,could develop and enhance those virtues in full blooms to the fullest extent and pass them down from generations to generations until to nowadays?

  6. Johnny —
    Thanks for checking back in. You raise a good point. My thoughts on this are two-fold. First, China’s historical ethics have not been completely abandoned. Second, change in Japan has been more gradual.

  7. I think that China’s development just came too fast and too soon hence the negative feedbacks about it. If you look at history though, China has always been the on leading towards civilization. I guess a gradual yet steady growth would be the best for China’s economy.

  8. Elaine —
    Thanks for checking in. I do not think China can afford gradual and steady growth. I think it needs to boom and boom fast so as to keep giving jobs to its peasants and to prevent massive dissatisfaction.

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