Peerenboom – The X-Files: Past and Present Portrayals of China's
Alien 'Legal System'
In 1980s, China had only begun rebuilding legal institutions that had
withered and died during the Mao era.
1999, policy of “ruling the country in accordance with law, establishing a
socialist rule of law state” was incorporated into Constitution.
Currently, “law is increasingly penetrating different areas of society and
playing multiple roles in keeping with the increasing differentiation in
Reforms have also undermined traditional understandings of China's legal
Part One: placing Chinese legal system in comparative perspective.
Part Two: discuss overly-negative view of Chinese law in Western scholarship;
suggest positive trends
Part Three: observations about teaching and researching Chinese law
I. Of Orientalisms Old and New: The Myth that China's Legal
System Remains a Traditional Law System Incompatible with
Rule of Law
Attempts at classifying legal systems often begin with economically
advanced Western country as paradigm.
− autonomous legal professionals
− cases decided according to distinctive legal criteria and methods
− general legal principles applied to particular cases
Many have thought China's imperial legal system would hardly qualify.
Magistrates and literati decided legal outcomes based on judgement and
interpretation of customary norms.
Charge of Orientalism: “A particular kind of law is considered not only
necessary for economic development, but an indicator of cultural
achievement and civilization. Whereas the West has law, order, rule, reason,
rational bureaucracies, predictability, and certainty, others have violence,
chaos, arbitrary tradition, and coercive despotism.”
We view our legal tradition as 'culture-less,' and think other legal systems are less successful for having 'too much culture.' China, for example, has had
Confucianism and 'cultural traits' blamed for holding back 'modernity.'
“Law, as the institutionalized manifestation of a particular set of such cultural
and philosophical beliefs, then becomes both a justification for and
instrument of imperialism.”
A. Mattei's Tripartite Taxonomy
Three types of legal systems, based on whether the primary source of social
norms is law, politics, or philosophical and religious tradition.
Rule of law = law is main mechanism for settling disputes; secular
Rule of political law = weak separation between law and politics; state above
Traditional law = no separation between law and religion; reduced role of
lawyers, increased role of mediators; emphasis on harmony and social
Peerenboom criticizes this third category as being too broad. “It seems highly
unlikely that any single category will be able to capture all of the differences
in legal systems in Asia, much less be able to do so in any meaningful way.”
Also, Mattei attempts to prevent the marginalization of non-Western law in
previous classifications. Yet, Peerenboom points out that under Mattei's
scheme, all of these non-Western countries are lumped together anyways.
To deny that non-Western legal systems could develop rule of law systems
holds them as 'other' in the same fashion as previous Orientalist schemas.
Mattei's approach “emphasizes differences in culture, especially religious
beliefs and philosophical systems.... In the process, it reifies, esssentializes,
and nationalizes culture, denying or downplaying the obvious changes that
B. The Imperial System as Traditional Law: Fact or Fancy?
Scholars have questioned whether traditional law square with realities of
imperial Chinese law, as well as the view that decision-making was based on
moral principles. Furthermore, the influence of 'religious' norms was minimal.
Even Confucian influence was not overarching; rather, “the state appears to have incorporated moral norms that it found useful in maintaining order.”
However, even granting that imperial Chinese law had 'traditional' aspects,
one still must keep in mind that this view may miss the way law worked in
C. Mischaracterization of China's Contemporary Legal System as Traditional
Rapid rise in lawyers and litigation in China and steady decrease of
mediation show that C