Thursday, August 11, 2016

No. 161 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"

Tsinghua University Law School, its Research Center for Philosophy of Law and Politics, the Taing hua Modern Law Research Center, and the China Law Review jointly sponsored a Conference, "Foreigners and Modern Chinese Law." The conference was organized by Professor Xu Zhangrun and Professor Chen Xinyu, Tsinghua University School of Law. Conference Program HERE.

I delivered remarks--"China, Law, and the Foreigner: Mutual Engagements on a Global Stage."  The presentation focused on the development of template for interactions between foreigners and Chinese with respect to "modernization" by the end of the Qing. Those patterns can be understood as clustered around a series of archetypes of foreign engagement and a small set of Chinese responses oscillating between opening up and shutting off. These archetypes and responses reflected the varying states of asymmetries of knowledge disparities and perceptions of need. The presentation ended with lessons to be drawn from this pattern of engagement as China assumes the role of "foreigner" within many states.

The paper will be available in a future post.

English language PowerPoints of the presentation may be accessed HERE.

中国语文 版本 访问这里

hose remarks have been transcribed in English and Chinese and posted to the Weibo microblog site of Tsinghua's San Hui Fang Society (叁會學坊) as Post 161-1 and No. 161-2. Described HERE.

This post includes the English language and 中国语文 versions of the transcript, with thanks to 叁會學坊 for permission to post.

中国,法律与外国人:国际舞台上的相互交往 (更新版本)
China, Law and the Foreigner: Mutual Engagements on a Global Scale
Larry Catá Backer
Final Preparation GAO Shan 

I will talk about China law and the foreigner, and I will talk about mutual engagement. The mutual engagement not only on national scale, the 16th-19th century, but on a global scale, that means China going forward both in the context of engaging with foreigner but more importantly China becomes the foreigner on global scale. The template for the engagement between China and Foreigner was well set by the end of Qing dynasty. I work my comments around an essay that reveals this pattern, an essay authored by Edward Capen, an American protestant missionary, who in 1911 had produced a report for the American missionary movement in the US about missionary work in China. In 1913 he wrote an article that become very famous in a journal that later become the predecessor of Foreign Affairs, a very influential journal in the U.S. In that article, "The Western Influence in China, he talks about the framework of Western influence in China. The way he organized this, the question he asked 100 years later are still the template we use when we engage in this discussion. What I am going to do over the presentation is speak to this template and taking about ideas we have been talk about and showing how it actually fit in very precise patterns of relationships and what does it means going forward. Capen identified 4 key questions, which are both odd and of interest:

• What Western influence has accomplished

• What Western influence should not destroy

• Where China can learn from the West

• How the West can be most helpful?

今天我将谈论中国法律与外国人,以及中西交往。中西交往不仅仅是16-19世纪间国家之间的往来,更是一种国际层面上的互通,意味着中国主动走向世界,中国人成为他国眼中的外国人。中西交往的模式已经在晚清时期奠定。我从爱德华·卡彭 《西方影响在中国》这篇揭示该模式的文章切入。作为一名美国清教徒传教士,他于1911年撰写了一些列中国清教徒活动的报告,其中1913年他在《种族和发展学刊》,(于1922年并入美国外交事务杂志)发表了这篇著名的文章。在该文中,他提出了关于西方在华影响的理论框架。在这一理论下,他提出的四个发问在百年后的今天依然回响在相关的讨论之中。我今天的演讲将关注这种交往模式,并回到我们的讨论之中以展示这些思考是如何契合中外关系的各种形态,以及未来的启示。卡彭所指的四个独特问题是:

· 西方带来了哪些影响?

· 哪些领域应避免西方影响的破坏?

· 那些领域中国可向西方学习?

· 西方怎样为其提供有效帮助? 


If you look into the questions, they are extraordinary, from a perspective of national equal status. They reveal the way the relationship between the foreign and China was understood and structured. They know effectively, the relationship between China and its engagement with the foreigners is one that is effectively unequal in at least four respects. First, the West is active and China is passive; this is inherent in the question. Second, the West projects out and China receives. This is why I put this picture here of man and wife. You can image which one is China and which one is west in this picture. China is in the dress and very happy to receive from whatever from her husband. China is Yin, west is Yang. Third, China is student, west is teacher. Fourth, the west can modulate and is flexible and China is set and predictable. If you read this article by Capen, as you go through this, it has become very clear, what has west has accomplished, industry development, education, political system, everything from the post service to the steam train to the telegraph, all are products of the west and not indigenous, they are brought into China. The same for consumer market, western models of education. Most important of all western politics, adopting western models of as a prerequisite for admitting China into the family of nations and therefore for undoing the nature of the treaty.

站在主权国家相互平等的立场上,这些发问耐人深思。这些问题揭示了中西交往中的思维定势与模式。他们认为实际中的中西交往是不平等的。首先,中国是消极被动,西方是积极主动的。这一认识是隐含在四个发问之中。第二,西方输出,中国接受。这种关系就好似我在此引用的一副夫妻的画像。大家都能猜出谁是丈夫谁是妻子。中国好比一个妇人开心的接受她先生的指示。中国是阴,西方式阳。第三,中国是学生,西方是老师。第四,西方随身应变,中国老规矩一眼望穿。 如果你阅读卡彭的原文你会清晰地明白,西方在那个时代取得了诸多成就,工业发展,教育,政治系统,从邮政服务到火车到电报,所有的一切都是西方发明并引入到中国。同样,在消费者市场,采用西方教育模式。最为重要的是西方的政治,采用西方的模式成为中国被纳入国际大家庭,参与国际条约秩序的前提。


That is sort of template for the engagement. And they are still very current as we work through the framework of socialist modernization. The former engagement is predictable given this attitude from one side to the other. China we have two things go one almost go on the time from Han, but I started from Tang dynasty. Two essential period of time, long period of opening up and in Tang dynasty and long periods of closing of Ming dynasty and early Qing dynasty. The republic of China period, very peculiar and we have lots of discussion about this from the early republic period. But opening up in Republic period marked by imitation as the form of modernization. This imitation just translated and imposed Western notions, there was little effort to transpose these ideas in the Chinese context. So from early days China is faced with an important issue in receiving ideas and methods from outside, and that is the matter of context: If we translate French code into Chinese, does it make Chinese? Is it relevant; if anyone reads it or care? This pattern of either opening up (receiving foreign ideas and translating them) or of closing down (forbidding foreign ideas) carry forward into the modern period. Between 1949-1957, you have soviet influence substituting for that of the Great Powers before World War I, with purges of soviet influence and indigenization of ideas and learning between 1955-57. Then between 1965-1978 you have period of retraction and closing off. And then post 1970s China returns to reform and opening up, seeking knowledge and experiences from the west. This is the current template of socialist modernization grounded in a complex relationship with the west.



The thesis of my talk about the engagement of foreigners in China argues that the engagement of the foreigner in modern Chinese law and legal discourse mimics the patterns of engagement that were well established during the pre-revolutionary period from early Qing dynasty onwards. I want to suggest a set of archetypes of that engagement and then suggest some lessons for contemporary China. There is no point to historical investigation if it does not offer useful lessons to learn. The lessons are especially important to socialist modernization and as China itself has become foreign as its go out policy become more and more successful. So there will be internal lessons, can the pattern of engagement be overcome in the modern era and a new basis established, to avoid error as China moves forward the communist party basic line and the project of socialist modernization. There will be an external lesson, can China avoid becoming the foreigner in its outbound relations to the pattern it has been criticizing for a century and half.



The archetypes developed for this presentation is made up of The Missionary The Expert The Sycophant The Colonizer The Expatriate The Entrepreneur The company person The Organization.



Against these archetypes is the Chinese response, which I had mentioned earlier. These range from uncritical opening up to forced closure and suspicion of all foreign influence. This pattern of managing foreign interventions has modulated, but was relatively well established in the last century. Among the most important forms of response are patterns of invited influence, from the late Qing dynasty from now. This is foreign intervention by invitation and for limited purpose. Beyond these forms of managed intervention are a range of responses. These include adopting the ideal of the useful stranger. This is the foreigner who is meant to be useful to the state. But such useful foreigners can also be useful to factions seeking or protecting power. And thus there is a danger of turning foreign influence into political instruments. This instrumental use of foreigners for domestic politics arises especially in the early and late republic period. Useful stranger responses can also connect Chinese indigenous practice to globe practices and ideas. It provides a useful window on the world for China. Resistance takes several forms. These include expulsions of foreigners, control of incoming ideas and persons, restriction on information and practice, and a mandatory indigenization of foreign ideas. These can be used to block foreign influence or to transpose ideas on Chinese terms.



The missionary is the core template. It is a modern expression of traditional approach and it is grounded in the notion of superiority. What motivates the foreigner who sees herself as a missionary? First is the assumption that China is inefficient or undeveloped, and west or outside or foreigner has something that China lacks and that China cannot develop for herself. This is the understanding of the template of this archetype. Whether it is true or not is debated all the time. But the presumption is central to the missionary who believes that her way is superior and that the recipient must change by becoming just like the missionary. This is among the most interesting aspects about Capen, the idea of changing: it is about changing the society, its politics and economics. But the missionary preserves some things. Capen speaks about keeping small things such as Confucius family solidarity, scholarship and community strength, but all of them have to ripped apart and rework on western terms. This is missionary: it is the assumption of inferiority of indigenous and it is multidimensional traditionally as we have seen as missionary in 19th century with religious, the early republic period you have technicians comes in and societal and ultimately political as well, because the ground of all of these is to transform China into either a democratic monarchy European style or republic in some accepted form. They know what’s the best, they are still everywhere in academic, political circus. Today the missionary type is not limited to religious groups, but includes any person or group who seeks to convert China into embracing the culture, politics, economics, and the like that is brought to China by the missionary.



The next stereotype is the expert. She differs from the missionary in that the expert does not espouse a particular ideology, instead she advances a particular methodology. This is the archetype of the technocrat—of systems rather than of ideology. There is various type, for the law, the lawyers, judges and people like me, the academics. There are two focuses, the first is the technician, and the second is the system builder. The technician focuses on the details of the problem, building everyday law and legal institutions. They are the consultants for the corporations or labor codes, for example. The other is more sensitive because it brings technique and process to systems, including the political and administrative order. In that sense it also is a political project. The one for which expertise usually drawn is technician. Let’s bring in French code, let’s think about German procedure law and Japanese constitutionalism. What is more profound in 19th century and even today, although today these experts tend to work outside of China, is the system builder, those who would reorder China’s constitutional and political order for the obvious reasons. Here the technician and the missionary meet. The idea is that the current Chinese system is a transitional system, and that it must be changed to embrace some ideal from abroad. This argument has a long history. It was advanced in 1910, the 20s and again after 1949. The argument ensures the need for outside expertise because it presumes that indigenous Chinese institutions are fragile and illegitimate and that foreign ideas are essential to facilitate a necessary change.



My favorite is archetype is the Sycophant. These are the foreigners who will say whatever you what to hear. This is the inverse of the missionary archetype. , they tend to serve as a brake on development. The sycophant is a paid echo, and that is not very helpful. They also tend to be an instrument. They tended to promote your position in factional politics. The danger with sycophant is that you are never sure who he serves. One cannot trust the sycophant, but one can use her. Whether serve internal faction or a master abroad. One cannot trust the sycophant, but one can use her—still she can be more dangerous than the missionary or expert.



The next archetype is the colonizer. This is the modern form of the missionary. But this archetype does not serve another state or a religion; it tends to serve a broader global order within which the state is subsumed. For the colonizer China should be treated like other states—but all states should be understood as subordinate to a superior order. The colonizer is made possible by and is the representative of the ideological framework of the current phase of globalization. Over the course of 15 or 20 years, there has arisen a global community and global orders which exist beyond the state. Classical historical study usually treats the foreigner as a representative of some specific foreign state, as Americans, Chinese, or British persons, for example. That is no longer the case. Over the last 50 years the archetype of the colonizer has developed a loyalty to an ideology—ecological, sociological, religious, and the like, which owe no particular allegiance to any state. They exist on a different political level. Especially when you dealing with the case of civil society, and global groups, these groups tend to break down the barrier of the state and represent global interest. These are foreigner who represent global norms—and they are particularly important in emerging global consensus and global norms over labor rights, human rights, information accessibility and the like. They are individuals and groups that are foreign but not bound by any foreign state but foreign. Their agenda is similar ot the missionary in the sense that they view their own ideological framework as superior and one that must be embedded in all states. China is not singled out but it is not ignored. The colonizer seeks the same sorts of changes in the United States This is something very new. Most of states are still trying to understand the colonizer, but I assure you that global civil orders and regulatory community are now very real and influential and they do play the role of the foreigner to the same extent as individuals tied to the traditional ideologies of political states do in a century ago.



The Expatriate is an emerging archetype and one that is likely to become more important for China in the coming decades. They are individuals who have emigrated from China—temporarily or permanently—and how now serve to bring foreign ideas back onto China. They provide a more trusted and immediate essential link between China and foreign ideas. There are two types. First is the Chinese who have emigrated on a permanent basis and are citizens of western states. The second, which has exploded in number after the 1980s, are Chinese sent aboard to study and who return to hold key positions within government, Party and state. This is a critical archetype, it provides state with element of trust and it detach the element of modernization from it sources. And it detaches foreign knowledge from the interests of foreign states and their citizens. But it also raises new and complex questions. The Expatriate is an ambiguous foreigner. On the one hand she is not foreign at all, but a local person whio has observed the foreign first hand and then returned. But it is not clear whether such an encounter with the foreign has left the Expatriate changed. He has two parts. The Chinese part and foreigner part. The idea is that one cannot be trust. There is a problem is that once they go out, you never really quite sure about whether they are loyal. It gives anxiety and gives rise to the need for monitoring and checks.



The Entrepreneur archetype is a variant of the Expert. These are the modern consultant. They sell foreignness; they are merchants of knowledge and know-how. China is an external market for the sort of expertise that might be sold at home as well. Of course when China buys foreign ideas through employees, they have the same problem as other consumers of goods or services: the problem is choosing among products offered for the best product, the best deal and for continuing service when knowledge does not prove to be useful. This is a particular problem in China but other countries as well. They not interest in theory only in advantage their own agenda; they tend to play legal systems against each other, we need to be careful about that.



The company man, who does he serve? When Walmart and KFC coming in, they provide expertise, who do they service, do they serve Americans in home country or their own production or value chains (the multinational corporation itself) with millions of employees in different locations with their own regulatory agenda. This archetype is the enterprise variant of the colonizer. In this case, the foreigner may not serve the state, but instead serves the multinational enterprise, its culture interest and objectives. That is, here as in global civil society, we have non-state actors who themselves are regulatory foreigners, who also produce expertise into a state that used to be reserved to state. For example, Apple serves as the foreign state almost same extend as to the state itself.



What are the lessons? An animal with 4 back legs cannot move forward. Applying old responses to the projection of foreign knowledge will not produce benefit to China. Modern times may require rethink about the response to the foreign the way which it is received, analyzed, and observed or discarded. I take a very famous paragraph from a very famous speech of Deng Xiaoping as one of the most sophisticated approaches to the issue. This one delivered in December of 1978. My favorite line is the first line. individuals, state and Party must undertake a constant effort to emancipate the mind, open up for reform and avoid both left and right error as well as the error of rigidity and bureaucratism. Foreigners are essential element of legal reform. The problem not just in China. The west has a long history of a position of Inequality when look into each others legal political system and browning it, that is an essential element of intercourse. But we also need to pay attention to the compatibility, intelligibility and compatibility with the internal norms. That makes no sense to bring in a set of rules that grounded on a particular political ideology if the political ideology is complete incompatible with the home ideology, it has to be changed with some caution. Influence but not copying, focus on going internal capacity but rather on continuing relying on foreigner and avoidance of traditional passivity. And developing a much more sound ideological analysis, the lack of domestic ideological analysis of received foreign ideas, it has to be ideological analysis suited to Chinese conditions. This is why I brought the quote one has to Emancipate the mind avoid the danger of rigidity and bureaucratism.

我们从中西交流中能获取什么样的经验和教训呢?四条倒着腿的动物怎么能向前直走。沿袭旧的态度是无法从外国的知识中获取有益于中国的事物。新时代需要我们去重新去思考如何接受,分析,观察以及抛弃外国的事物。我在此引用邓小平在1978年12月的演讲《解放思想,实事求是,团结一致向前进》,他对这一问题的处理是如此非凡。我最喜欢的是第一段: “解放思想,开动脑筋,实事求是,团结一致向前看,首先是解放思想。”个人,党和国家应当不断地解放思想,改革开放并避免左倾或者右倾的错误,以及思想僵化和官僚主义。外国人是法律革新中的重要元素。中国所面临的问题并不独特。西方世界中同样存在许多发展不平衡,互相借鉴学习对方法律政治制度的情形。这种借鉴和学习是对外交往中重要的一环。我们需要注意外部经验与本国国情之间的兼容匹配与接受程度。将那些建立在特定政治意识形态之上的外国制度引进来,但是却与本国的政治意识形态不相匹配,这是没有道理的。我们需要小心的在引进过程中做出调整。本国接受外国的影响,而非简单抄袭,关注本国能力的建设而非持续的依赖外国人,以避免消极的接受外国事物。同时,本国需要发展一套明智的意识形态理论分析,适合中国的国情。这也是为何我在此引用邓小平解放思想避免官僚主义的僵化。


Going forward China faces additional external problems of dealing with the foreign. I already mentioned before. The foreign itself has changed. It is no longer state projecting foreign ideas, globalization has liberated both regulation and production of political ideas from the state and now vested in global civil society, and invest in global economic enterprise. And vested in public and private international organization. That is the world in which countries like China and United States now operate. That requires a different and more sophisticated view of the foreign and a different sense about what the foreign means (and how it may be useful) as knowledge both coming in and coming out. Transnational law and transnational norms are the systems that make up this is reality that you all know.



The leaders of the Chinese Communist Party have made clear especially since the 16th party congress that moving forward under the leadership of the Communist Party it is necessary for the country to project Chinese knowledge and interests into international discussion more vigorously. That is a work in progress. But the outward lesson for China is very clear. The old days are gone, it is not the time of the Ming or Qing dynasty. It is more like Tang dynasty time for China. China is now increasingly a foreigner in lands in which they can influence significantly. Its systems and ideologies are studied. China must develop its own ways of projecting its own value without making the same mistakes that china has criticized west for hundreds of years. That requires much more sophisticated understanding of the nature of that projection and much deeper study of China’s policy as it moves out into Africa and as it moves through its state owned enterprise into a transnational space and international organization developing international norms and rules. If China falls into the same traditional archetypes that we mentioned, they would end up like England and US with the same problem that west had in China. These are the problems and criticisms that China will have as well.



To summarize: The relationship of China to the foreigner has been complicated but stable since the Qing dynasty. Despite a century of time passing, it remains hard to avoid the pattern of thinking that was all well established in modern form by the 1930s. Those questions continue to define political social and expert relationships among and between China and the foreign. These are the questions china need to ask itself as it moves forward

what is foreign how should China interact with it

Can China avoid the traps and tropes of Western engagement with China from the last century?

Can China avoid the traditional pattern of instrumentalism and suppression?

How to avoid these traps will be the greatest Challenge for China as it pursues its go out policies and engages in national and international forums.


· 什么事外国,中国如何去与之交往?

· 中国可以避免西方在上个世纪中西交流中犯下的错误吗?

· 中国可以避免传统交流中工具注意以及居高临下镇压对方的情形吗?如何处理这些问题将是中国走向世界政策以及融入国际制度中的重要议题。 

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