Saturday, February 27, 2016

Flora Sapio, Jean Mittelstaedt, Shaoming Zhou, and Larry Catá Backer on Jerome A. Cohen, “A Looming Crisis for China’s Legal System: Talented Judges and Lawyers are Leaving the Profession, as Ideology Continues to Trump the Rule of Law”

(Pix © Larry Catá Backer 2016)

Issues of democratic legitimacy of the Chinese political, constitutional. legal and economic order are fairly common in the West. Indeed there are legislative institutions in the U.S. Congress whose sole business is the production of such critique (e.g., the U.S. Congressional-Executive commission on China).

But there are differences in the way one can go about making those critiques, each of which might produce substantially distinct insights. In the West, for example, it is common to apply what I call the outside-in approach. That starts from the set of premises extracted from global consensus or the reading of democratic traditions among influential states, and then projects those into China, comparing how the Chinese approach stacks up against these outside models. A less common approach, but one sometimes used by comparative scholars is what I call the inside-out approach. This starts by a rigorous examination of the system to be examined, both the theory and practice of governance, and then projects those out against a set of foreign markers. The outside-in approach tends to reveal more about the foreign system projected inward and the extent of global harmonization, along with the character of that harmonization. The inside-out tends to provide greater insight into the working of the system examined and the extent to which the gaps between theory and implementation reveal weakness, including coherence in form or function that might be advanced through a study of foreign systems.

Jerome Cohen, Professor of Law at New York University, one of the great scholars of China in the United States, has recently produced a marvelous essay that for me highlights what may be some effects that follow the choice of methodology (Jerome A. Cohen, “A Looming Crisis for China’s Legal System: Talented Judges and Lawyers are Leaving the Profession, as Ideology Continues to Trump the Rule of Law,Foreign Policy (February 22, 2016)). The essay provides a powerful consideration of the consequences of the current Chinese approach to legal reform and its suggestion of the underlying structural deficiencies of the current normative Chinese political order. These judgments are made against an application of the standards of universal legal values which China has endorsed. The essay suggests the value of an outside-in approach. But it also exposes the possibilities for a distinctive approach and another potentially rich vein of analysis using an inside-out approach.

It is in this light that Flora Sapio, Jean Mittelstaedt, Shaoming Zhou, Sun Yuhua, Jade White, and I thought it might be useful to consider Professor Cohen's excellent article. To that end each of us prepared a short engagement with distinct sets of insights developed by Professor Cohen (Introduction here).

The responses may be accessed here, along with a Chinese language summary of the comments:
Part I: Larry Catá Backer
Part II: Flora Sapio
Part III: Jean Mittelstaedt
Part IV: Shaoming Zhou
Part V: 中外学者中国法治改革的关注与讨论.
Part VI Sun Yuhua
Part VII White Jade; (English Version HERE)

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