China, Law and the Foreigner: Mutual

Engagements on a Global Stage

Larry Catá Backer ( 白 轲 ) W. Richard and Mary Eshelman Faculty Scholar Professor of Law and International Affairs; Pennsylvania State University

Prepared for the Conference: “Foreigners and Modern Chinese Law”, Tsinghua University School of Law, Beijing, China, July 9-10, 2016;

Organized by Profgessors Xu Zhangrun and Chen Xinyu

Introduction• Modern template was well set by

the end of the Qing Dynasty• Edward Capen, “The Western

Influence in China,” The Journal of Race and Development 3(4): 412-437 (1913) (merged into Foreign Affairs in 1922)• 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.

Ceiling Louvre Paris

The Forms of Engagement• Note the framework within

which this discussion is structured• West active; China passive• West projects outward; China

receives inward• West teaches; China learns• West can modulate its behaviors

and approaches; China’s are set and predictable

Olga Sacharoff, Els Casats de nou 1929 Catalan Museum Barcelona

The Form of Engagement in History• Long periods of opening up (Tang Dynasty)

and closing borders (Ming and Early Qing).• Early Republic: mimicry as modernization

• Six Codes of the Guomindang • Modeled on European Codes• Foreign trained Chinese drafting• Western legal scholars advising

• PRC—periods of opening up and closing off (foreign trained Chinese and foreign advisors)• 1949-1957: Soviet Union and the Communist

international• 1957-1965: Purging Soviet Union,

indigenization and rectification• 1965-1978: Great Proletarian Cultural

Revolution• Post 1970s: West, social legality and socialist

modernization

Juan Corea de Vivar La Nativité Louvre 1535

Thesis and Object of Discussion• The engagement of the foreigner in

modern Chinese law mimics that of Pre-Revolutionary Periods.• Suggest the archetypes of that

engagement.• Suggest the lessons that can be drawn

as China itself becomes the foreigner in its “go out” engagements with other peoples.• Internal lessons: Can the pattern evolve

under the CCP Basic line of socialist modernization—emancipation of the mind and truth from facts approach of the modern period?

• External lessons: Can China avoid the replication of this form of engagement as it becomes the foreigner in other lands?

David II Terniers Flemish Misericordia Louvre 1600

Archetypes in Forms of Engagement• The Missionary• The Expert• The Sycophant• The Colonizer• The Expatriate • The Entrepreneur• The Organization

Yan Liben, Lady Liu and Liu Cong Admonishing in Chains Chain China Ming Dynasty Smithsonian Washington DC

The Response• Invited influence• Managing interventions

• Useful Strangers

• Factional instrumentalism • Connecting indigenous and global

• Resistance• Expulsion• Control• Restriction

Reservoir Istanbul 4th century A.D.

The Missionary• The modern expression of the traditional

approach• Grounded on superiority• Object is change

• Fundamentals and normative order• Assumption of the inferiority of the local• Multi-dimensional

• Religious• Political• Technical• societal

• They know what is best

Altar Catalunya 8th Century, Barcelona

The Expert• Types• Lawyer• Judge• Academic

• Focus• Technician

• Everyday law and legal institutions• System Builder

• Constitutional and political order

The Sychophant• At first blush the inverse of the

Missionary• But they tend to serve as a brake

on development• Tend to be an instrument—

either of the host or home state• Especially important when

dealing with experts who may have agendas tied to serve a master.

Bartolomé Bermejo, Retable of Christ and the Ressurection Barcelona 1475

The Colonizer• The state is subsumed within a broader

order• Made possible by current historical phase

of globalization• China is treated like other states; but all

states are treated as stakeholders in superior system

• Global civil society and international organizations tend to lead

• Substantial stake in the expression of national law for compatibility to global norms—porosity, open borders, transparency, etc.

The Expatriate• An essential link between China and the object

of study• 2 types

• People of Chinese extraction now citizens in the West

• Chinese sent abroad to study

• Element of trust, and a filter• Detaches the task of modernization from its

sources• But is it necessary to monitor the Expatriate for

tendencies to absorb all too well the underlying cultures she was sent to study;• Which community does the expatriate or the

foreign trained individual serve?

• The search for checks• CCP membership• monitoring

The Entrepreneur

• Selling of intellectual goods—a merchant of knowledge and know how• China is an opportunity useful for

external market advantage in academia and elsewhere• Not interested in theory only

advantage—stakeholder mentality• But an important actor as the

consumer of legal product• Repercussions in the global sphere

where conflict.Marinus van Reymerswaele, The Tax Collectors, 1535 Louvre

The Company Man• The foreigner acts to further the interests

and normative values of an organization other than the state• Enterprises• Financial and other markets• Civil Society

• These exercise expertise and fall into categories of missionary, expert or sycophant • the values are not that of the individual

representative but of the organization• Difficulty for China is distinguishing between

states and non state actors where the effects of both can be similar

The Response• Traditional

• Invited Influence• Useful Strangers (factional instrumentalism)• Resistance (Boxer Rebellion; Great Proletarian

Cultural Revolution)

• Contemporary• Fear, control and necessity;

• the pull of traditional forms of resistence• Socialist Modernization and the construction of the

Socialist Legal System• Initial phase: borrowing and experimentation in

controlled zones• Indigenization through foreign trained nationals• Construction of an autonomous system more

profoundly connected to the normative political basis of the state

• The political work of the CCP

Bartolomé Bermejo Resurrection from a Diptych Barcelona 1475

Lessons—Looking Inward• An animal with 4 back legs cannot move

forward• Foreigner as essential element in legal reform

• Issue of compatibility with global consensus approaches

• Issue of intelligibility• Issue of compatibility with internal normative

order• Cautions

• Focus on influence but not copying• Focus on capacity building• Avoid passivity in the receipt of knowledge• Sound ideological analysis• Avoid rigidity and bureaucratism

•Break the traditional patters of response and opening up. • The importance of a legitimate normative foundation

•Implementation

• When it comes to emancipating our minds, using our heads, seeking truth from facts and uniting as one in looking to the future, the primary task is to emancipate our minds. Only then can we, guided as we should be by Marxism-Leninism and Mao Zedong Thought, find correct solutions to the emerging as well as inherited problems, fruitfully reform those aspects of the relations of production and of the superstructure that do not correspond with the rapid development of our productive forces, and chart the specific course and formulate the specific policies, methods and measures needed to achieve the four modernizations under our actual conditions.• Deng Xiaoping,

Emancipate the Mind, Seek Truth From Facts and Unite As One in Looking to the Future (Dec. 13, 1978).

Going Forward• From the problem of the state to the problem of

the global;• the issue of the foreigner and Chinese law has been

superseded by the issue of the global within Chinese law and the Chinese law in the global

• Transnational global communities• Rise of transnational law and normative systems• The problem of the multinational enterprise as a

law maker• The importance of the international order• These transformations have changed the nature

of the foreign and the domestic, of the state, and of the terrain within which China must confront its own law making within a globalized meta-legal order

• The temptation to resort of past practices is unlikely to serve objectives or adhere to CCP Basic Line

Lessons—Looking Outward• China as “the foreigner” in its new

relationships• Go out policy• State owned enterprises• Engagement with international

organizations• Future of opening up policy in the

wake of globalization• The use of law to those ends• The Archetypes impede Chinese policy

and leadership globallyAfrican traditional figures, Barcelona 2014

Conclusion• The relationship of China to the foreigner has

been complicated since the end of the Qing.• It is hard to avoid the 1913 approach of Edward

Capen with which we began to understand the relationship of foreigner to China; but that is the trap for China in its engagement with law in the global sphere. One should ask:• What Chinese influence has accomplished• What Chinese influence should not destroy• Where a state can learn from China• How China can be most helpful

•These are the questions that Chinese actors must ask as they deepen Chinese footprints in Africa, Latin America and Asia.•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. Japanese Kamakura period; Louvre

Thank You

• My work may be accessed at Backer in Law