On Monday, November 7, eleven accomplished scholars of Chinese law met for the 17th annual dialogue in memory of Timothy Gelatt, former NYU law professor and avid Asian law scholar. "China's Quest for Justice: Law and Legal Institutions Since the Empire's Collapse" examined law and justice in the century since the fall of the Qing Dynasty in 1911 and was moderated by Professor Jerome Cohen, co-director of the U.S.-Asia Law Institute at NYU.
With 10 minutes allotted to each speaker–a minute a decade–shifts in perspective and focus came quickly but one theme emerged: the centrality of law to the most pressing issues for China. As Daniel Ping Yu, consultant to NYU Law’s U.S.-Asia Law Institute, and James Feinerman, professor of Asian legal studies at Georgetown Law Center, pointed out, the overwhelming political reality for 19th and early 20th Century Chinese leaders was the brutal fact that China did not have the legal right, much less the practical power, to control its borders or its population. Subsequently, as Andrew Nathan, professor of political science at Columbia University, noted, each successor regime to the Qing, including most emphatically the People’s Republic of China, has started with a constitution and legal rights, albeit ones “limited by law,” an important limitation but one that still brings us back to “law.” Clear deficiencies in the current Chinese legal system notwithstanding, therefore, law has been a core institution in China, from the meticulously documented practices of the Qing magistrates as described by North Carolina State University history professor Jonathan Ocko to the contemporary efforts to implement freedom of information legislation as noted by Jamie Horsley, lecturer in law at Yale Law School and deputy director of the China Law Center.
What complicates this picture, however, is an equally consistent aversion to allowing law to operate as the rules of the game, at least when the game is state governance. On this issue there are several examples: Ocko’s noting that Qing magistrates, while issuing “bright line” decisions, proceeded to replace them with “fuzzy law” in the implementation; the characterization by Donald Clarke, law professor at George Washington University Law School, of the sequence of Chinese company laws as constant re-invention of the rules for doing business without ever affecting the actual doing of business; or the argument by Columbia Law School professor Benjamin Liebman that the Chinese state is caught between the desire to use law to control society and its deep distrust of both law and lawyers. The message seems to be that the contemporary Chinese regime is searching for a legal system that can contribute to economic growth and social stability without any political messiness, which, as David Law, professor of law and political science at Washington University in Saint Louis, pointed out, is the dream of many authoritarian regimes. Whether China can succeed over the long term where most such regimes fail – whether in other words it can approach justice without the rule of law – was too big a question for even this group. That said, however, one area to watch may be labor, now one of the most contentious policy areas and one where the Chinese government is assiduously trying to avoid delegating actual power to the courts. But as Cynthia Estlund, Catherine A. Rein Professor of Law at NYU Law, pointed out, advances for labor come only from “threatening the regime,” so watching the evolution of labor conflict may be one way to evaluate the second century of post-imperial China’s quest for justice.
Watch the full video of the event (3 h 47 min):
Posted November 23, 2011