Saturday, February 27, 2016

Flora Sapio 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)
This post includes Flora Sapio's response.

A reply to Jerome A. Cohen
Flora Sapio

It is always difficult to add something new to any essay written by Jerome Cohen. I still have a vivid memory of the day when – as a student in Italy – I accidentally found The Criminal Process in the People's Republic of China, 1949–63: An Introduction in the academic library where I used to work. Many years later, I would be invited to visit New York University School of Law, where I spent four fantastic and extremely enlightening weeks giving talks, and doing research side by side with the greatest names in the field of China Law Studies.

Five years after my visit to New York University School of Law, things have changed, and we have entered a different stage of legal reform. Until 1978, a time when legal legal reform was proceeding at a much slower pace than today, the effects of change could be felt mostly within China's borders only. Today, China has become a global player, one which soon will play an even more significant role in shaping global norms. This fact alone justifies the close attention foreigners are paying to each one of the events that are taking place in different areas of China's legal system as I write. We live in a highly interdependent world, and the dynamics active in China's financial system, property market, and in each one of the other areas of the law, will no doubt set in motion similar processes elsewhere. A butterfly flapping its wings in Beijing can cause a hurricane in the European Union, America, Australia, or anywhere else in the world. This is neither rhetoric not metaphor, but one of the most important scientific truths discovered by American Mathematician Edward Lorenz.

The field of China Law Studies has always been highly pluralistic, and interdisciplinary. An easy categorization would be one that divided the field between the “Optimists”, and “Pessimists”, classifying the style, topic, and personal preferences of each scholar under neatly drawn categories. Beyond such an easy (and perhaps artificial) categorization, and all the differences in methodology, nationality, topic of research that exist, a minimum common denominator can be found.

Jerry Cohen's article refers to this minimum common denominator in an indirect way, and I am taking upon myself the task of explaining what this minimum common denominator is, and why it is useful. Jerry Cohen's reference are indirect because knowledge about this minimum common denominator is shared by all those who work in the field of China Law Studies. Therefore, the minimum common denominator does not need to be mentioned in an explicit way – it is an integral part of our worldview. It is something all of us know in a very good way.

To oversimplify a very large and complex body of theory (and perhaps even popularize it, since I am writing for a broad audience), the beliefs we all share are that:
(1) Law is an engine of development, broadly understood.

(2) The 'vanguard' of legal development – where my use of this term refers to someone who opens up a new road, and has got no other political connotation – is given by all those who practice law, in different ways.

Law and Development theory has been criticized on many different grounds. Some critics, particularly the most virulent ones, have displayed a greater talent in working on the pars destruens, than on the pars construens of their critique. If we are to make sense of the world around us, if we are to understand what direction legal reform is taking in China, we need a framework of reference. Despite its flaws, the framework provided by Law and Development theory is the one most widely shared and adopted.

This does not mean that the framework is perfect. As Karl Popper and Thomas Kuhn taught us, science – a broad designation which includes not only the hard sciences, but the social sciences as well – is made by testing and revising theories. Sometimes, these theories may work flawlessly, and yield accurate predictions. But, other times they may yield predictions that differ from reality.

We are at a crucial stage in legal reform, and Law and Development theory postulated that China would embark upon a trajectory of change different from the path legal development has taken in the real world. This fact alone could raise many difficult questions. As this is a response to Jerry Cohen's opinion piece and Larry Backer's comments, this is perhaps not the best site where an answer to these questions may be attempted.

I will conclude this comment by saying that using theory to predict which path to development a legal system will walk is always very, very difficult. This difficulty does not stem from Law and Development Theory itself. It does not stem from any flaws of this theory. A theory that has survived for more or less forty years of continuous tests and criticism is, as facts prove, a theory which is useful and good. Neither does this problem stems from us – all those who out of intellectual curiosity chose to study how law is in China – or from any limitations in our field.

The difficulty of predicting what will happen in China's legal system ten years from now stems from a problem of an entirely different order. This problem was first raised by David Hume. Is is a problem to which the greatest minds of Western and Eastern philosophy have given only tentative solutions. This problem has a specific name. In Philosophy, it is known as the Problem of Induction. But that, perhaps, must remain the topic of a different discussion, one more suited to my teaching in Methodology.

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