China and EU

Reform and Governance

Jing Men, Annika Linck

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781134991921
• Edition: 1
• Topic: Social Sciences
• Subtopic: Ethnic Studies
• Index: Social Sciences

Reform and governance are of vital interest to both the People's Republic of China and the European Union (EU). China is facing demographic and environmental challenges and has been experiencing a rapid economic transition. The social tensions arising from these challenges call for a governance system that will allow the Chinese leadership to alleviate social tensions without putting at risk their leadership. A society which is becoming more diverse and facing problems of a global scale that also cause turmoil at the grass roots may be difficult to govern top-down. Notwithstanding the Communist Party of China's (CPC) grip on Chinese society, there may be ways to integrate public opinion and civil society organisations in governmental decision-making through reforms that do not challenge the current leadership.

The EU, on the other hand, faces the same global challenges with a very different and complex governance system. EU foreign and security policy, thus including EU policy towards China, are governed by the EU's foreign policy principles, which contain, among others, the promotion of democracy, the rule of law and the universality and indivisibility of human rights and fundamental freedoms. How successful can the EU be in advancing these principles when engaging with China, while respecting the Chinese political system? How can the EU and China find common grounds in their governance systems so as to enhance their strategic partnership in order to tackle global issues that need a coordinated approach?

Part I
Governance and reform in China

1 ‘Soft legal transplants’

EU–China relations at a glance

Matthieu Burnay

Introduction

Despite its long-standing legal tradition deeply nourished by the heritages of Confucianism and Legalism, China had to wait until the end of the nineteenth century to start developing a comprehensive and full-fledged legal system in the Western sense. It were indeed China’s first encounters with international law during the ‘Century of Humiliations’ that drove China into a reform process that was initiated at the end of the Qing Dynasty and was then pursued during the era of the Republic. After an abrupt interruption during the three decades of Maoism, the reform of the Chinese legal system took another fresh start with the launch of the ‘opening-up’ policy in 1979. Drawing inspiration from various external and domestic sources, the reform of China’s legal system has been at the heart of the changes in China’s governance system in the last four decades. Additionally, the rule of law has progressively emerged as a central concept in the construction of China’s governance identity. The rule of law served accordingly as the main theme of the Fourth Plenum of the 18th Party Congress in 2014.

The purpose of this chapter is to look into the importance of ‘soft legal transplants’ in the construction of the Chinese legal system. In addition to the direct influence of international law upon China’s legal system, China has indeed been keen to incorporate concepts/rules/good practices from foreign legal systems into its own legal system. This chapter argues that European continental legal systems and European law have acted as some of the main sources of inspiration in that process. One can think of numerous examples including the 2008 Anti-Monopoly Law (AML) that will be studied in details in this chapter. At a time where the European Union (EU) is looking for new ways to further engage with China in line with the 2016 China Strategy, this chapter argues that the convergence between European legal systems and the Chinese legal system opens new avenues for cooperation and dialogue between the EU and China.

This chapter will be divided into four main parts. In a first part, this chapter will explain the importance of ‘legal transplants’ in a context where the globalised legal landscape is characterised by a growing interdependence between a plurality of actors, legal instruments, and values. In a second part, this chapter will analyse the impact of imperialism on the development of the Chinese legal system at the end of the Qing Dynasty. It will be argued that China’s successive defeats and forced ratification of international treaties drove China into a legal reform process deeply informed by the successful experiences of foreign legal systems. In a third part, this chapter will highlight the importance and own limitations of legal reforms and the rule of law in the construction of the post-‘opening up’ Chinese legal system. In a fourth part, the 2008 Chinese AML will be used as a case study to demonstrate both the importance of soft legal transplants as well as their own limitations given the nature of China’s economic, political, and social systems. This chapter will then conclude by highlighting the actual prospects and potential difficulties the EU and China are likely to encounter in the context of their new-born bilateral Dialogue on Legal Affairs.

Soft legal transplants and the migration of legal concepts in a globalised legal landscape

In an increasingly globalised legal environment, the development of national legal systems cannot be considered as an isolated dynamic. The legal field is indeed not immune to the process of globalisation which implies an enhanced interdependence and connectedness between legal systems and regulatory practices. In that context, the global legal landscape increasingly becomes the product of numerous interactions between a plurality of actors, legal instruments, and legal values.

First, the development of national legal systems is influenced by the legislative and normative initiatives of a multiplicity of actors that Snidal and Abbott are keen to call the ‘governance triangle’ (2009). This triangle includes state actors, business actors, and civil society actors. All these actors are, to various extents, and depending on the national context, involved in the law/norms making process. In that ‘struggle for law’, ‘ “global players” are quite clearly in demand of norms and that norms are indeed produced in the course of interactions’ (Fridman 2014: p. 8).

Second, the global legal landscape is influenced by a multiplicity of legal instruments (see Goodwin 2012: pp. 270–272). In addition to national and sub-national law, relevant legal instruments include international law, supranational law, and the more contested private standards. International law can be simply defined as the law that applies to the relations between states with sovereign equality being at the heart of the international law system as clearly emphasised by article 2 of the UN Charter (1945). Supranational law refers to the law that stands above the state. The relationship with national law is here one of superiority. One can think of European law as the ideal typical case of supranational law. According to P. Jessup, transnational law can be defined as ‘all law which regulates actions or events that transcend national frontiers’ (1956: p. 2). Transnational law crosses the state, is not especially managed by the state, and recognises the special role of non-state actors. The Lex Sportiva – the law of sports – is one of the many examples of transnational law. It indeed transcends the state and is made of all the legal systems of international sports federations (see: Latty 2007). Finally, private standards refer to norms adopted by the private sector, which serve as influential national or transnational regulatory instruments (Marx, Maertens, Swinnen & Wouters 2012). Private standards contribute therefore to the broader dynamic of normative diversification in which law does not appear as the sole legitimate regulatory source (Hachez 2014: p. 318).

Third, the global legal landscape is made of a plurality of values. In fact, concepts such as rule of law, human rights, and democracy still remain very much ‘contested across both time and geography’ (Chesterman 2008: p. 340). While some will describe these values, these ideals as universal, others will argue that they are culturally or geographically situated. These diverging views are related to the long-standing tensions between universalism and relativism in the definition of common principles and values at the international level. This plurality also implicates major diverging views on sovereignty and non-intervention. While some international actors are keen to support the development of the responsibility to protect (R2P) as defined at the occasion of the 2005 UN World Summit (UNGA 2005: para. 118), others use every occasion to push for a departure from a ‘values-based diplomacy’ that would justify interventions in the affairs of third-states and de facto sovereignty breaches.

This plurality of actors, instruments, and values interact with each other on the basis of a plurality of relationships schemes that vary both in terms of their structure and process. In this respect, Francis Snyder argues that

[I]in terms of structural relationships, sites may be autonomous and even independent, part of the same or different regimes, part of a single system of multi-level governance, or otherwise interconnected. In terms of process, they may be distinct and discrete, competing, overlapping, or feed into each other.

(1999: p. 343)

Within that context of global legal pluralism, the development of national legal systems can hardly be seen as an isolated process. National legal systems are indeed deeply influenced by the growing interdependence between the plurality of actors, instruments, and values. In this line, interactions with other legal systems conduct national legal systems to oscillate between a greater convergence or divergence among each other (Snyder 1999: p. 343).

In that process, ‘legal transplant’ emerges as a key concept to understand the interactions between legal systems. The concept of ‘legal transplant’ was introduced by Alan Watson in his seminal book ‘Legal Transplants: An Approach to Comparative Law’ (1993). The study of ‘legal transplants’ has since then progressively become a central aspect of comparative law research. According to Michele Graziadei, a ‘legal transplant’ refers to ‘the gradual diffusion of the law or the continuous nature of the process that sometimes leads to legal change through the appropriation of foreign ideas’ (2006: p. 443). This chapter aims to concentrate especially on so-called soft legal transplants. Soft legal transplants serve as one specific mode of interactions and contribute extensively to the greater convergence between legal systems. Soft legal transplants refer to the dynamic process in which foreign legal concepts, norms, and principles migrate into a legal system as the result of a voluntary commitment obtained through formal or informal good practices learning or sharing. These external concepts, norms, and principles are therefore not imposed from the outside but rather adopted by the recipient legal system because they have the potentiality to make the legal system more comprehensive and competitive. To go back to the typology of structures and processes used above, it is important to mention that soft legal transplants can take place in the context of different structural relationships among autonomous, independent, or interconnected legal systems. In addition, soft legal transplants are also part of formal or informal processes that can be competing, overlapping, or even feeding into each other. The specificity of soft legal transplants relates therefore to the fact that they are adopted on a voluntary basis by the side of the recipient.

The ‘century of humiliations’: an electroshock and a driver in the modernisation of China’s legal system

The development of the Chinese legal system was almost continuous over the entire Chinese imperial history going through the rises and falls of the successive dynasties. In that process, China developed a sophisticated system of legal codes and institutions. In contrast with Max Weber who opposed the rationality of Western European legal systems to the ‘substantively irrational’ Chinese legal tradition (Marsh 2000: p. 281), this chapter recognises the existence and rationality of the traditional Chinese legal system. Imperial Chinese law was much more than ‘a mere model’ to follow but truly a ‘legal norm to apply’ (Bourgon 2007: pp. 242–243). It drew its specificities – its Chineseness – from the simultaneous influence of two different schools of thoughts, namely Confucianism and Legalism (see: Chang 2010). In that context, Chinese law served primarily as an instrument in the hand of the ruler to control its people rather than as a tool for the population to control politics. Subjective rights were not recognised and the emphasis was put on punishments and penal laws. In this line, the Qing Code referred to civil cases as ‘minor matters’ that should be tackled outside of the realm of the legal system (Marsh 2000: p. 286). Very interestingly, it appears that it is China’s first encounters with European countries in the nineteenth century which put an end to the autonomous development of the traditional legal system and initiated a major legal reform process aimed to secure the survival of the Qing Dynasty.

The completely unexpected defeat against the British Empire during the First Opium War (1840–1842) opened a process that drove China into a large-scale reform at the end of the Qing Dynasty. The defeat in the First Opium War marks, in fact, the beginning of the so-called Century of Humiliations during which China suffered from successive defeats in the Arrow War (1958), Sino-French War (1884–1885), and the Sino-Japanese War (1894–1895). It is in the aftermath of these defeats that China was first submitted to international law through the imposition of ‘Unequal Treaties’. The First Opium War was indeed followed by the forced ratification of the Nanjing Treaty,¹ and a succession of other international treaties. In addition, the inclusion of a Most Favoured Nation Clause (MFN) in the Nanjing Treaty enabled the British Empire to benefit from the advantages granted to the other Western powers (i.e. France and the United States).²

These defeats along with the ‘Unequal Treaties’ highlighted the deep weaknesses of the Qing Dynasty. These weaknesses enabled Western powers to deprive the Qing Empire of its full control over economic, social, and political affairs. They engendered a real ‘electroshock’ for the Qing Dynasty, which had to acknowledge that non-structural reforms were no longer sufficient to ensure the survival of the Empire. The Qing Dynasty was, in fact, in need of a throughout revision of its economic, social, and political structures, which were all very much ill-equipped to face the challenges inherent to modernity (Hua 2004: p. 5).

It is in this line that the Empress Dowager Cixi released an important Reform Edict in 1901:

We have now received Her Majesty’s decree to devote ourselves fully to China’s revitalization, to … blend together the best of what is Chinese and what is foreign…. To sum up, administrative methods and regulations must be revised, and abuses eradicated. If regeneration is truly desired, there must be quiet and reasoned deliberation…. Now things are at a crisis point where change must occur, to transform weakness into strength. Everything depends upon how the change is affected.

(Reform Edict 1901: pp. 285–287)

The so called New Reforms – also known as the late Qing Reforms – aimed to rationalise the administrative and political systems, reshape the economic structure, decentralise and modernise the army, as well as to reshape the education system. In a dynamic similar to the Meiji Reform of 1868, the Qing Empire understood at the time that all these reforms would not be a success without a deep and systemic reform of its legal system. It is with this objective in mind that a Commission of Legal Reforms was established by the Empress Dowager. The mandate of the commission – led by intellectuals such as Shen Jiaben and Wu Tingfang – was to modernise the legal system through the translation of foreign laws, the import of foreign legal concepts, and the drafting of new civil, commercial, and civil procedure codes. Reflections on the creation of a constitution and on the benefits of constitutionalism also emerged as a ‘powerful force driving the mobilization of social elites and reformers within the state apparatus’ (Xiao-Planes 2012: p. 257).

The Qing elite’s attitude towards legal reforms was guided by different considerations that included: an inclination to learn from the Japanese experience of constitutionalism; a reluctance to adopt the British model of constitutional monarchy and the French or American democracy; as well as a will to learn from the experiences of multiple legal systems (Hua 2013: p. 126). It is in this spirit that the Empress Dowager appointed five commissioners in 1905 to visit Japan, the United States, and a series of countries in Europe in order to learn from the political and legal systems of these states (see Sun 1952). It is finally the European continental Roman Law tradition that had the strongest influence on the legal reforms: ‘A new civil law tradition had been established, and the Chinese legal system was made a branch of the Roman law family’ (Wang 2006: p. 74). The revision of the legal system in the late Qing Dynasty, also known as Xin Zheng, ‘was a proclamation to end the native Chinese legal history; in the end, the Chinese legal system was given way to the western legal civilization’ (He 2014: p. IX). In this process, modernity was equated with the ‘West’, and there was no real attempt to reflect upon China’s own version of modernity (Huang 2007: p. 173).

The most important aspect of these reforms for the purpose of this chapter relates obviously to the interactions between the Qing Empire and the ‘West’ in the process of reforming the Chinese legal system. It is, in this respect, interesting to note the paradox inherent to the evolving impact of China’s external relations on the Qing legal landscape. At first, interactions with the West submitted China to rules, principles, and values that had no equivalent within China’s normative landscape. International law was here instrumentalised by Western powers with the purpose to submit the Qing Empire – and other non-Western states – in order to fulfil their needs and suit their interests (Chan 2014: p. 891). It is only progressively that the Qing Empire realised that a systemic reform of China’s legal system based on the successful experiences of other legal systems was necessary to ensure the survival of the dynasty and reinstall political and economic autonomy. This important evolution was surprisingly not imposed by colonial powers, but it was the fruit of an internal ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Notes on contributors
• Introduction: reform and governance in the EU and China
• Part I Governance and reform in China
• Part II The EU and China in global and regional governance
• Index