Law Without Law, or is 'Chinese Law' an Oxymoron?

Abstract

In this essay, which is part of a larger genealogy of legal Orientalism, I analyze the conceptual and historical relationship of China to the idea of 'rule of law,' and vice versa. I first consider why it is that China is generally viewed as lacking a tradition of rule of law. I then look at one historical example of Western efforts to transplant the rule of law in China, and the lessons it has for our understanding of law more generally.

I begin by examining the nature of the rule of law as a political ideal, and then turn to its implicit, less analyzed counterpoint, the 'rule of men.' Insofar as the definition of the rule of law is a negative one - the rule of law means precisely 'not the rule of men' - this dichotomous understanding threatens always to condemn 'Chinese law' to the status of an oxymoron, for historically Chinese legal institutions have been built on the ideological premise of rule of men (that is, men of either Confucian or socialist virtue).

As a case study of the construction of Chinese law as congenitally lawless, and of the concomitant Western mandate to export law to China, I examine Thomas Stephens's monograph 'Order and Discipline in China,' a study of the jurisprudence of the International Mixed Court in early twentieth-century Shanghai. In theory, this court was charged with applying Chinese law in the so-called International Settlement, a semi-colonial foreign enclave in Shanghai. Although originally a Chinese tribunal, after 1911 the Mixed Court was controlled by the foreign residents of the International Settlement. Contrasting what he calls the adjudicative and disciplinary models - essentially an instance of the rule-of-law/rule-of-men dichotomy - Stephens argues that the Mixed Court had no claim to legality by the standards of the Western adjudicative model. Ironically, given the foreign control of this court, the 'Chinese law' that Stephens condemns as lawless was in fact a Chinese law fabricated by foreigners. Using Stephens's analysis as an illustration, the essay concludes that the problem is not simply that 'Chinese law' is an oxymoron, but that the category of 'law' is itself a contradiction, an unstable mix of elements of adjudication and discipline, rule of law and rule of men. While we are capable of accommodating this Legal Realist insight at home while maintaining our commitment to law's rule, we are far more uncompromising in evaluating legal traditions elsewhere.

In the end, the rule-of-law/rule-of-men distinction is too moralistic and too black-and-white to be analytically useful. For the sake of a better comparative understanding of Chinese law, we ought to replace it with more modest and more definable concepts instead. Any observations and criticisms we have of another are best made in terms of the substantive content of specific laws and the institutional structures for their enactment and enforcement.

Keywords: Comparative law, Chinese law, jurisprudence, rule of law, rule of men, Shanghai, International Mixed Court, legal Orientalism