Esas ambigüedades, redundancias y deficiencias recuerdan las que el doctor Franz Kuhn atribuye a cierta enciclopedia china que se titula Emporio celestial de conocimientos benévolos. En sus remotas páginas está escrito que los animales se dividen en: a. pertenecientes al Emperador; b. embalsamados; c. amaestrados; d. lechones; e.sirenas; f. fabulosos; g. perros sueltos; h. incluidos en esta clasificación; i. que se agitan como locos; j. innumerables; k. dibujados con un pincel finísimo de pelo de camello; l. etcétera; m. que acaban de romper el jarrón; n. que de lejos parecen moscas.
[These ambiguities, redundancies and deficiencies remind us of those which doctor Franz Kuhn attributes to a certain Chinese encyclopedia entitled The Celestial Emporium of Benevolent Knowledge. In its remote pages it is written that the animals are divided into: a. belonging to the Em peror; b. embalmed; c. trained; d. pigs; e. sirens; f. fabulous; g. stray dogs; h. included in this classification, i. trembling like crazy; j. innumerable; k. drawn with a very fine camelhair; brush, l. et ceter; m. just broke the vase; n. from a distance look like flies.* * *
La imposibilidad de penetrar el esquema divino del universo no puede, sin embargo, disuadirnos de planear esquemas humanos, aunque nos conste que éstos son provisorios. [The impossibility of penetrating the divine scheme of the universe cannot stop us from planning human schemes, even though we are concious that they are provisional.] * * *
(Jorge Luis Birges, "El idioma analítico de John Wilkins", La Nación, Argentina, 8 February 1942, and republished in Otras inquisiciones; Jorge Luis Borges (1999), "John Wilkins' Analytical Language", in Weinberger, Eliot (ed.), Selected nonfictions, Eliot Weinberger, transl., Penguin Books, p. 231 translations by Ruth L. C. Simms in Other Inquisitions 1937-1952 (University of Texas Press, 1984); by Levine and Weinberger in Jorge Luis Borges: Selected Non-Fictions (Penguin, 2000)The folks over at the European Chinese Law Research Hub (with thanks to Marianne von Blomberg, Editor ECLR Hub, Research Associate, Chair for Chinese Legal Culture, University of Cologne) have posted a marvelous new essay authored by Mark Jia (Associate Professor of Law at the Georgetown University Law Center and a Faculty Scholar with its Center for Asian Law) on High Theory in Chinese Law. The final form of the essay is to be published in the Texas Law Review.
The essay focuses on an issue of concern to those in the business of classification--more more specifically around the question: "how should we characterize China’s legal system?" (High Theory in Chinese Law). hat, in turn, suggested a concern that many also share around characterizations of a thing that also serve to classify it within broader rationalizing structures of reality. Indeed, the proliferation of systems of classification are as varied as the epistemologies of the ideologies in whose service they are elaborated. I was reminded of what Jung once wrote as he approached the way collectives perceive order as an expression of the way in which they order reality around them. Jung distinguished between the causality principle that drives Western approaches contrasted against what Jung saw as the emphasis on the chance aspects of events (synchronicity). In the former chance is postulated out of analysis; in the latter chance occupies a central place--not just any sort of chance but a chance universe which was intricately ordered around trajectories of events (Carl G. Jung, Foreword to Richard Wilhelm-Baynes translation of the I Ching (or "Book of Changes" (Princeton University Press,1968)). Foucault drew on Borges, quoted above, to make similar point when considering the epistemological premises of an imperial Chinese effort to order the universe
"In the wonderment of this taxonomy, the thing we apprehend in one great leap, the thing that, by means of this fable, is demonstrated as the exotic charm of another system of thought, is the limitation of our own, the stark impossibility of thinking that."(Michel Foucault, The order of Things: An Archeology of the Human Sciences (NY Vintage Books, 1994 (originally Les mots et les choses (1970), p. xv)Jung's object was the I Ching; Foucault was to remind us of the endogenous character (at least within a collective bent on ordering the reality around it, and thus ordered to manage it) of epistemology; but law will do as well.
Jia notes that scholars have recently advanced a number of new theories contributing to the understanding of Chinese Law. These theories, though, avoid metrics useful to adjudicate between them by those of us inclined to judge "which theory of Chinese law is best." Jia advances "one possible answer to this question." There is another purpose to the exercise: to advance "why two recent prevailing approaches to high theorizing about Chinese
law are structurally predisposed to certain kinds of theoretical costs
and benefits."
But the West will have its science, and it is to the social scientific method that one must rely in both harvesting data (what constitutes the raw material for theory) and its analytics. Jia notes, quite reasonably, that one enters into the world of the subjective in this endeavor ("there is no objectively correct theoretical approach to the study of Chinese law" (Jia)); however there is, as semiotics like to remind us, collective meaning making which, when held strongly enough by enough people, might provide a sort of social scientific sense of certainty for as long as these things last ("it is fair to say that the dominant paradigm in recent years has been loosely social scientific"). These paradigms generate the "theories are a collection of assumptions, definitions, and concepts that we use to order complex social phenomena" (Jia) which can be used "to generate testable propositions that can then be used to refute old theories or refine new ones" (Jia). It may be as plausible, of course, to suggest that all of this testing can even more usefully reveal the power of the "assumptions, definitions, and concepts" and perhaps the way they make certain modes of analysis and conclusion both inevitable and self-reinforcing. Consensus, however, lends its authority to legitimacy: "This is by no means the only way to theorize about Chinese law, but because most recent works have generally followed this approach, it helps to be explicit about what good social science theories entail." (Jia). None of this is criticism--indeed the essay itself is quite fascinating. It does suggest perhaps, that the democratic impulse that drives social science, including jurisprudence, may be situated within broader currents. For that, again perhaps, Jung, Foucault, and Borges, may provide a useful re-orienting perspective.
Applying the social scientific lens, Jia elegantly distills the writings into two general categories of theorizing. "The first category I term a kind of “monism” because these theories all share an affinity for employing a single construct to characterize China’s legal system. . . The second category of theories, in contrast, is best described as a kind of “pluralism” because these theories do not see a legal system that can be reduced to a single coherent principle; instead, they employ multiple constructs—often competing—to better capture Chinese law’s social complexity. " (Jia). Each of these approaches, even in their internal variation, "are structurally advantaged and disadvantaged in predictable ways." (Jia). Indeed, the comparative discussion of monist and pluralist theories is quite important; the assumptions, definitions, and concepts driving the choice among these theoretical clusters even more so. And it object:
I do not come out in favor of one approach over the other. But I do hope a more explicit discussion of theoretical virtues and tradeoffs can improve the theoretical rigor of current debates, clarify points in which scholars may be arguing past one another, and help us better appreciate what we are predisposed to see, and to miss, at various stages of conceptual design. (Jia).
This brings one back to Jung, Foucault, and Borges. In a quite elegant way, Jia illuminates "what we are predisposed to see, and to miss." What one is predisposed to see, of course, is one's own image and it is that mirroring that provides substance to approaches at analysis and judgment. It is possible to entertain the idea that theorizing along these lines is far more useful in understanding the system from out of which the analysis emerges than in understanding the object of analysis. That applies both to Chinese and foreign analysis but in quite different ways. In a mimetic way, what one may be predisposed to miss is what is absent from what one sees in oneself as a starting point of "seeing" and "understanding" a legal other. And that touches on the conceit of the exogenous character of law--of law detached from politics or ideology even as it may give expression to either or both. Law is at once both the object (expression) that springs from the head of its maker fully formed--our hagia sofia) and that exists apart from its maker in the sense that it must represent those notions and forces which itself precedes its maker and limits its maker's power--our logos (eg discussion in the full essay pp 7-12). That brings one back to Jung and the difference between causality based social scientific epistemes and those Jung would have called synchronicity:
This assumption involves a certain curious principle that I have termed synchronicity,2 a concept that formulates a point of view diametrically opposed to that of causality. Since the latter is a merely statistical truth and not absolute, it is a sort of working hypothesis of how events evolve one out of another, whereas synchronicity takes the coincidence of events in space and time as meaning something more than mere chance, namely, a peculiar interdependence of objective events among themselves as well as with the subjective (psychic) states of the observer or observers. (Carl Jung, Foreword, supra, pp. 5-6; citing 2 Cf. "Synchronicity: An Acausal Connecting Principle," The Structure and Dynamics of the Psyche (Coll. Works of C. G. Jung, vol. 8).
pix credit here
High theory, then may be located elsewhere than IN law, but in ways that the discussion of pluralism in Jia's essay may miss. These appear to work very hard to avoid the reality of a Leninist system in order to fit law within the parameters of social science consensus emerging elsewhere. Or perhaps one might consider that epistemic law is not self referencing in the sense that it draws on itself as object and norm in a kind of closed dialectic irritated from time to time by the polity when it acts appropriately. Or perhaps the epistemic dialectic does not emerge in and through a "polity", but rather that the polity organized within and as the Communist Party, produces its own epistemic structure with respect to which "law" is a second order expression by reference to and in the shadow of that primary structure of law/norms. High theory may, in this sense, account for law but not reside in it. The theorization of law resides elsewhere than in its object.
But that takes the discussion out of the consensus within which the essay engages in its most power analytics. In this sense, then, the power of Jia's analytics is in that consensus and of it. And perhaps that theory of the theory of consensus is a powerful insight as useful in liberal democratoc as it is in Marxist-Leninist orientations. Nonetheless, one might also talk about the epsitemes which are constructed "out of law" as those terms may be understood by the authoritative community of meaning makers in the current stage of the historical development of meaning. That, in turn, requires the avoidance of the causality at the heart of "high theory" and an embrace of synchronicity in jurisprudence--the way one approaches the I Ching from a Jungian perspective (interdependence held together by the subjective states within which it acquires meaning). One can, in this way, better appreciate, the great value of the essay in helping those inclined to think more deeply about its subject. This fascinates, at least for its semiotics (Jan Broekman & Frank Fleerackers, Legal Signs Fascinates: Kevelson's Research on Semiotics (Springer 2018). In this case it fascinates in the way that it seeks to encase an unending dynamic that avoids fixity, ironically enough, with the fixity of a theoretical framework that would freeze the character of its structures. The contradiction tends to be overcome by politics, but this is an age that both fears politics and elevates it to the status of a monarch in a constitutional monarchy: remote and symbolic--the ultimate unchanging sign encasing a dynamic signification.
One gets a better sense of the actors and actions within the critically important spaces that matter of consensus and within which dominant paradigms are created in the social sciences; in the spaces accorded to Leninist systems, those spaces are occupied not by scientists but by high level Communist Party cadres and the consensus may be better grounded in the language, sensibilities and assumptions of governance than of law (something that Jia notes in the full essay, n. 21, and p. 13 in discussion from an outlier perspective). The Celestial Emporium of Benevolent Knowledge reminds one that what appears high theory within a way of perceiving knowledge may itself be one of several objects in the grander Emporium of epistemic ordering.
I am cross posting the essay below. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: if you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg.
High Theory in Chinese Law
A new paper by Mark Jia
The most contested question in the study of Chinese law is also its most enduring one: how should we characterize China’s legal system? In recent years, scholars have advanced a number of new theories that have contributed to our understanding of Chinese law. Few of these papers, however, make explicit the metrics that ought to be used to adjudicate between competing theories of Chinese law. Before we can decide which theory of Chinese law is best, it may help to reflect on what makes a theory of Chinese law good. This essay advances one possible answer to this question, and in so doing, it explains why two recent prevailing approaches to high theorizing about Chinese law are structurally predisposed to certain kinds of theoretical costs and benefits.
While there is no objectively correct theoretical approach to the study of Chinese law, it is fair to say that the dominant paradigm in recent years has been loosely social scientific. At bottom, this means that theories are a collection of assumptions, definitions, and concepts that we use to order complex social phenomena. A primary goal for social science theory is to generate testable propositions that can then be used to refute old theories or refine new ones. This is by no means the only way to theorize about Chinese law, but because most recent works have generally followed this approach, it helps to be explicit about what good social science theories entail. On this question, there is considerable consensus: a good theory is accurate, parsimonious, testable, coherent, precise, generalizable, and generative. There is further consensus on the relationship between these various theoretical virtues. Highly parsimonious theories, for example, tend to be more easily testable, more coherent, and more generative.
From here, it helps to observe two general categories of recent theorizing about Chinese law. The first category I term a kind of “monism” because these theories all share an affinity for employing a single construct to characterize China’s legal system. For example, Donald Clarke’s theory that China’s ostensibly “legal” system is best conceptualized under an “order maintenance” paradigm is monist because it employs order as a unitary analytic construct. So too with respect to the pure “legality” framework advanced by Taisu Zhang and Tom Ginsburg in noting recent judicial and constitutional trends since 2014. The second category of theories, in contrast, is best described as a kind of “pluralism” because these theories do not see a legal system that can be reduced to a single coherent principle; instead, they employ multiple constructs—often competing—to better capture Chinese law’s social complexity. The most well-known of these theories is legal dualism, inspired by Ernst Fraenkel’s book on Nazi Germany, that see China’s legal system as consisting of a rule-bound normative state and a discretionary prerogative state.
A largely unnoticed feature of recent theoretical debates is that monist and pluralist theories are structurally advantaged and disadvantaged in predictable ways. In the essay, I review a number of recent theoretical contributions in the light of basic insights from social science theorizing to make these analytic costs and benefits more explicit. Monist theories, I argue, tend to be more parsimonious, and therefore more coherent, falsifiable, and more provocative than other theories, and thus more generative overall. Monist theories also have a strong heuristic and prismatic usefulness, which facilitates efficient communication and creative re-interpretation of known data. But due to their inherent economy, monist theories about legal systems are often more limited in their explanatory breadth and depth; as a class, they cannot account for as much of what is studied as pluralistic theories; nor can they provide as detailed a portrait of causes, mechanisms, and patterns as theories that employ multiple parameters. Indeed, there is a sense in which monism’s disadvantages have become only starker in recent years, as China’s legal system has grown significantly more complex.
The contributions in this essay are ultimately quite modest. I do not come out in favor of one approach over the other. But I do hope a more explicit discussion of theoretical virtues and tradeoffs can improve the theoretical rigor of current debates, clarify points in which scholars may be arguing past one another, and help us better appreciate what we are predisposed to see, and to miss, at various stages of conceptual design.
The paper “High Theory in Chinese Law” is forthcoming in the Texas Law Review, Journal Vol. 103, 2024 (free draft available at SSRN).
Mark Jia is Associate Professor of Law at the Georgetown University Law Center and a Faculty Scholar with its Center for Asian Law. He specializes in comparative and transnational law, with a focus on China and the United States. His scholarship has been or will be published in the University of Chicago Law Review, the New York University Law Review, the University of Pennsylvania Law Review, and the Texas Law Review. He was previously a law clerk on the U.S. Supreme Court.
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