Wednesday, June 11, 2008

Chinese Law in Confucian and Other Cultural Contexts

Over the past few days, I have been attending a conference in Ithaca on "Law in Context" that occurred as part of an ongoing collaboration between scholars at the Peking and Cornell University Schools of Law. Many of the representatives of the Peking faculty were on the younger side and appeared both to be introducing new emphases into legal scholarship in China and to be reflecting on the potential perils of the rapid changes that are now occurring not only in China generally but in its legal system in particular. Indeed, one of the trenchant pieces of traditional wisdom that was mentioned early in the conference appeared to carry its implications over through the duration: "More haste might result in less speed."

Along these lines, Ling Bin's paper on "Legal Professionalization in the Context of Legal Popularization" juxtaposed the vantage points of ancient legal reformer Lord Shangyang and the character of Qiuju from the fabulous film starring Gong Li and explained how the turn towards an increasingly systematized version of the rule of law might detrimentally affect some of the earlier sense of each individual being able to access law on her own. The presentation concluded with an animated discussion about this issue among several of the Chinese scholars, some of whom were more enthusiastic about the turn towards professionalization than others. 

Another excellent presentation revealed the ways in which technical legal principles may not entirely dictate the outcome of various cases, even those decided by the Supreme People's Court. According to Lou Jianbo, although there are a number of restrictions on entering into contracts for land--including limitations on foreign ownership as well as on city dwellers purchasing farms,--the Supreme People's Court has on a variety of recent occasions either circumvented these limitations and upheld agreements or crafted remedies that allow even a party prohibited from entering into the contract to obtain some value from it. Eduardo Penalver, commenting on the paper, suggested that the Supreme People's Court might be implementing something like Guido Calabresi's recommendations for how courts should treat statutes that have outlived their utility. Lou Jianbo thought this was a plausible explanation, especially because the agencies that had promulgated some of the restrictions often revised or removed them after the court's decision. At the same time, however, these practices of the Supreme People's Court also seem to bear some resemblance to the tradition of equitable decision-making. When, in particular, an agency has indicated that a stringent rule remains in force, and the court crafts remedies designed not to deprive parties of all value they might have obtained from a contract disregarding this rule, this activity is reminiscent of seventeenth-century English practices in Chancery. Like the Chancellor engaging in equitable decision-making, the Supreme People's Court appears to be providing some relief from the formalities of ordinary law. 

These and other papers--including one on "Corrective Justice in the Confucian Legal Tradition: A Nonexistent Concept"--seemed to indicate that it would be inadvisable to allow the haste to professionalize to leave behind less easily codified or formalized kinds of knowledge or practices that might provide valuable substrates for Chinese law. 

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