Wednesday, September 28, 2016

On the Nature of the Foreigner and Chinese Law--Drawing a Distinction Between the National and the International in an Era of Globalization

I have been considering the issue of the foreign scholar in China--and especially in the context of the development of Chinese law and jurisprudence. That is understood, in the Chinese context as both a legal and a political engagement that has a long and turbulent history--on both sides. From the West one can discern a pattern of "types" of Western scholar engagements in China.: Missionary, Expert, Sycophant, Colonizer, Expatriot, Entrepreneur, and Company Official. On the Chinese side, the "useful stranger," the "invited influence," the "friend of China," and the "enemy of China" (HERE).

I presented a preliminary version of these ideas earlier this summer at Tsinghua University (see 中国,法律与外国人:国际舞台上的相互交往 (更新版本) Transcript of Remarks: "China, Law, and the Foreigner: Mutual Engagements on a Global Stage"). And I was delighted to have a chance to refine those ideas on September 27, 2016 at a Seminar on The Role of Foreign Scholars in the Study of Chinese Law, sponsored by the Confucius Institute, the Università degli Studi di Napoli L'Orientale and the Instituto Confucio Napoli.

This post considers an unexplored wrinkle in the development of the mapping of the terrain of engagement between China and Western scholars--and that is the quite distinct emerging interactions between Western engagements with China on its internal development, and Western engagement with China in the context of global norm making.

Through this unpacking of patterns of engagement, most usefully undertaken in the form of pattern-classifications of engagement archetypes on both sides, I have sought to understand the way this engagement works. I had explored what might be understood as a semiotic model in these engagement patterns already evident at the time of the end of the Imperial period. But the model is decidedly national in its context and orientation  In each and every instance, the issues touched on the construction and reconstruction of China as a national state.  It is true enough that, especially in the period before the new era of globalization post-1945 that one spoke to the need to "modernize" law to attain the first rank within the family of nations.   And it is also true enough that this rank provided substantial benefits both in international law and in the law of exploitation of lower ranked states,  and its peoples.  Yet the discussion always centered on national concerns and national conformity to a fairly broad variation in practice among those states (mostly European) of the first rank. And, indeed, even today, it is this essentially 19th century outlook that powers Chinese thinking and that frames Chinese perceptions of the world and the strategies for securing its place within that world. 

Indeed, much of the scholarly turn to China since the end of the Great Proletarian Cultural Revolution and the start of China's engagement with Socialist Modernization, has focused on national development. It is marked, for example, by China's "long road" to World Trade Organization membership and its strategic exploitation that membership provided (see, e.g., here). The internet (where it can) is full of scholarly conversations, and the debris of interactions and knowledge production (including those of this author) that continue to engage with Chinese national development.  The sense of some of these still has the very strong flavor of 19th century efforts to construct an deconstruct Chinese national legal, social, economic and political institutions--through law of course!  And this is not to suggest that the effort is rely one sided--the Chinese have been as eager to engage in this process of transformation as their Western partners.  Chinese scholars (and the officials who take an interest in these affairs for their own reasons)  have also sought--as they have since Ming Dynasty times--to cultivate a stable of Western scholars useful to them, to invite engagement, and to participate in the modernization process.  None of this is bad.  Quite the contrary, all of this points to the sort of engagement that Western scholars have taken in stride certainly since the 19th century and the opening of the intellectual borders within first comparative law and now everywhere in most fields.  Even the now famous classic resistance of the United States Supreme Court to consider foreign sources is itself strong evidence of its influence. 

It is in this national context that the patterns of engagement that have been classified into the Chinese and Western "types" described earlier are most useful. And it is in that context as well that their dangers, on both sides, is most clearly drawn. Not just that, though.  The archetypes also suggest a certain anachronism in the working styles of engagement on both sides that impede rather than advance mutual interaction--as scholars and as agents for the advancement of knowledge in all spheres.  The notion that Westerners might presume the role of providers and sources of knowledge projected into China, and that Chinese scholars work through strategies of receiving and using such knowledge belies the merging realities of both knowledge production and of the state of its production globally. The factories of knowledge production, and the techniques of its constitution, are no longer sourced only in Europe and North America. And there is no monopoly on legitimacy housed within the higher levels of the great universities of the West. One no longer necessarily always needs the imprimatur of certain "thought leaders" to produce and project ideas with both legitimacy and influence. These anachronisms warn against the easy error that the archetypes themselves suggest, errors that have already been touched on earlier.  On the side of the West they caution against the easy arrogance of a dominant position easily lost.  On the side of the Chinese they caution against either suppressing contact or, worse, replicating its forms as China itself becomes the "foreigner" in Africa, East Asia and Latin America. 

But it is those anachronisms, of the power-knowledge relations between the West and China--so comfortable because so well worn--that globalization tends to expose most clearly in another direction as well. The key here may well be the "colonizer" archetype.  Where discourse in the past had focused principally from or through the state, globalization has created a quite distinct level of discourse in law and politics (e.g., here).  Increasingly since the 1980s and now proceeding at an accelerated pace, globalization has changed the landscape within which law and politics are shaped and applied.  In a world in which the most important aggregated interactions tend to cross borders, it is the consensus about norms respecting those transactions that are now increasingly important (e.g. here).  They are important not just as a matter of international norm making--but also for their legal effects within and beyond states (e.g., here).  They suggest the legal rules that may be imposed even when the state itself is absent (e.g., here). But they also suggest significant areas of contestation about the meaning of legalization at the international level, its effects on states and the relations of states to law beyond its borders (see, e.g., here). International communities beyond the state now engage in the production of law beyond the imagining of the state bound scholars and state officials in the early 19th century when the current patterns of engagement arose (see, e.g., here).

China has sought to enter the debates about and help shape the course of these consensus norms at the international level.  Over the course of the last two Chinese Communist Party Congresses, its leaders have stressed the need for China to more vigorously engage in issues of global discourse in law and politics--and to produce the knowledge necessary to make China's voice more effective.  That, of course, is a decision that ought to be welcomed.  But at the same time, the need to resist the temptations of the old archetypes ought to be resisted in equal measure.  On the Western side the idea of deference to China in matters of respect for its positions and legal perspectives--out of a knowledge of past arrogance or easy illegitimacy--must be resisted.  Westerners ought to engage Chinese internal politics from a perspective of acceptance of the Chinese domestic context and avoid the framing of analysis on  a framework of regime change.  At the same time there is no such deference due within an international context where states meet to consider global consensus.  Within the international context, Chinese and Western ideas meet as equal, and both ought to be equally and vigorously met. 

The Chinese context requires respect but no deference as global norms are created and managed. At the same time, in matters of global engagement, China must resist the temptation to fall back into an easy nationalist transnationalism. That approach would treat global actors, both within and outside China, as suspect and potentially dangerous outsiders--to be managed or suppressed.  Yet at the same time China appears poised to project its own state power through civil society elements that are created by or operate to further government objectives (e.g., The Internationalization of Chinese NGOs). The time has long past when a state can effectively control global communities--especially global communities that are important legal, political, societal and economic actors. The issue for this century is how to square that non territorial power with the operation of territoriality based states (e.g., here).  That poses a significantly complex and distinct problem for Marxist Leninism.  But a return to a politics of outward nationalist expansion and inward closure to the outside world is unlikely to be helpful in the long run, especially to the project of socialist modernization. Nor is it likely to be effective in China's efforts to become more influential on the world stage.

There are areas in which these distinctions will prove decisive in the effectiveness of global discourse.  One is the area of human rights and economic activities.  The substantial differences in fundamental perspective between the West, and China (along with even greater differences among certain regions where theocracy may pull in an even more distinct direction) require a form of discussion toward harmonization that is quite different from that of the role of the Chinese or Western views within their own territories. The role and management of religion poses a similar problem.  But then so does the role and control of state owned enterprises, and the power of states to project their agendas through private or public entities operating abroad. These are the sorts of issues that, in the area of international norms, there is likely to be respectful disagreement, but also the need to move toward consensus.  The failure of that consensus in the face of severe enough contradiction, may well isolate the state to seeks to stand on its old nationalist line rather than expanding the mind and conforming to suit the historical context in which networked operation is necessary--even for the most powerful states. 

These are preliminary thoughts.  What is emerging more clearly in this century is that both the West and China cling tightly to old patterns of interactions--especially in the context of the engagement with scholarship. Those patterns might have served the purposes of the respective sides a century ago but they are increasingly anachronistic. It is time for Westerners to cease their arrogance in the matters of Chinese legitimacy and of their construction of their own legal, political, economic and societal systems.  This is not to suggest that criticism is not permitted--merely that it ought to be reframed to a criticism that seeks to engage that system on its own terms. But it is also time for China to reconsider the old patterns of fear, suppression, and managed and strategic absorption of ideas. The same principles that have propelled socialist modernization in the economic sphere might well produce similar result in others. Mutual advantage remains fair game.  

But more importantly, the nationalism of the old patterns are almost entirely incompatible with global interaction.  In a sphere in which everyone is a foreigner, the idea of the hierarchy of foreign ideas makes no sense. It has been difficult enough for the West to begin to understand the patterns of discourse, law and politics in a globalized field.  It may prove to be an unhappy--and certainly unproductive--experience for the Chinese to treat the international sphere as inter-nationalism with Chinese characteristics. For both, new ways of engagement are emerging.  Let us hope they prove useful.  For the moment, though, the habits of nationalism in the production of ideas, and their legitimacy, influence and effect, continue to cloud the forces of production of knowledge. Within this sphere neither Western nor Chinese ideas are worthy of any special deference.  And indeed, neither the views of states, nor enterprises, nor global civil society, ought to be especially privileged. To develop the habits of developing consensus within a context of mutual intellectual respect and the possibility of opening the mind to ideas that might be taboo in either the West or in China, that the path to future development might be better  built.

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