Puzzling Observations in Chinese Law: When is a Riddle Just a Mistake?

Abstract

Understanding the Chinese legal system is not simple because it is (probably) very different from a Western one. The understanding of the Chinese legal system that results from any study will depend crucially on the selection of a paradigm with which to define what counts as an observation and against which to measure and assess the observations, either descriptively or normatively. This is not to say that the selection of a paradigm will make the difference between understanding and not understanding. It will, however, make a difference between understanding in one way and understanding in another way. Whether one of those ways is better than another depends on how still more methodological issues are settled: the purpose that is to be served by the understanding that is sought, and whether that purpose is itself a valuable one.

This paper explores the ways in which the Chinese legal system can be understood through the use, conscious or not, of different models, and in particular the phenomenon of what appear to be mistakes and aberrations in the system when we apply those models. I offer a particular way of modeling the Chinese legal system, and show how this way of modeling produces observations that can be explained only as errors or aberrations. I will then show how other ways of modeling would explain these observations as normal and expected phenomena. Finally, I will discuss the challenge these multiple ways of modeling pose to the analyst. A model that explains an observation as normal is not necessarily superior to a model that can only explain it as an error or an aberration: mistakes and aberrations do happen. Yet surely it is also intellectually satisfying to have a model of a set of phenomena that provides a plausible account of almost all of them.

Keywords: China, Chinese law, People's Republic of China, methodology, law, constitution

JEL Classification: K1, K40