An Alternative View of the Rule of Law Panacea in China

Abstract:     
Discussion of guanxi in the West is dominated by claims that is it a crass and often corrupt exchange of favors. However such translations, defining guanxi as “other” will not facilitate useful cultural understanding. First guanxi is not merely a word but a signal for an entire system. Guanxi constitutes an individual’s “local moral world.” As well, it enables guanxiwang, a multilayer network of networks. In short, it signifies a whole cultural phenomenon that only operates because everyone within the system shares the same or similar world view: Of the primacy of social order, of the interdependence of everyone within the society, of the benefit of having a system that way, and of the relatively inferiority of all other forms of ordering (including reason and law). However, such nuances are lost in legal translation, frustrating those who would seek to implement Western-style rule of law in China.

Rule of law reform is intimately tied to the politics of “globalization.” As the United States becomes more interdependent with China, it becomes more vulnerable to its politics - that is to the shared norms that constitute the Chinese state in the first place. Globalization, once entirely tied to the spread of capitalist economies, transformed in the Internet Age. The hope of this recent transformation is tied to the potential prosperity offered by shared resources, knowledge and interdependencies. The anxiety arises from the corresponding vulnerability this brings to others’ political behavior. No longer do economic interests control the exchange of information and goods between cultures. The Internet has enabled a communication free-for-all, which means both positive exchange, enabling transmission of cultural masterworks and the emergence of micro economies, but also means free exchange of contraband such as child pornography, malware, criminal idea, and surveillance. As the United States becomes more interdependent with China, it becomes more vulnerable to its politics, that is to the shared norms that constitute the Chinese state in the first place.

Politics in this sense is worldview. At the moment globalization anxiety surrounds the question of whose worldview will survive. The rule of law effort is unquestionably an attempt to ensure that the Western worldview will prevail. The barriers to instituting Western-style rule of law in China are inherently connected to opposing Western and Chinese views of the individual, society and law. Rule of law is essentially a Western concept, intimately tied to the Western capitalist worldview. Guanxi is likewise a product of Chinese worldview. Given the resilience of the Chinese culture and its 5000 year history, it is much more likely that Chinese ways will prevail unless Western reformers dramatically adjust. Instead of insisting on the defeat of guanxi and institution of Western rule of law, advocates may be able to best share its benefits across cultures by first being more receptive to the cultural realities on the ground in China.

Keywords: China, guanxi, rule of law, justice, independent judiciary, Jerome A. Cohen, Vermont Law School

JEL Classification: A13, P31

working papers series