Law will be crucial to China’s development.
The Bulletin asks Professor William P. Alford ’77 about the development of the legal system amidst the historic changes taking place in China.
Why should Chinese law matter to U.S. lawyers and law students?
China is engaged in the most extraordinary effort at legal development in world history—raising fundamental questions not only about a singular rising power that is home to roughly 23 percent of the human race, but also about the very nature of law itself.
To understand this, one needs to step back and appreciate the magnitude of change under way there. Transformations—including massive industrialization, urbanization and engagement in the world economy—that took place over more than a century in Britain and a half century in the U.S. have occurred in China within a far shorter span. It’s essentially the lifetime of our students, as I like to tell them. And unlike the English or American cases, this change in China started from a baseline of a planned economy and is occurring against the backdrop of global institutions like the World Trade Organization.
The scope of such change is hard for us to fathom. In a single generation, some 150 to 200 million people—more than the population of Japan—have moved from the countryside to cities, making this history’s largest internal migration. Individuals are increasingly able to make key life decisions about employment, education, housing and even marriage, that a generation ago were largely out of their hands. In 1980, China was a highly egalitarian, if very poor, society, but today it has some of the world’s greatest disparities economically, juxtaposing an upper stratum that is wealthy even by First World standards with a bottom stratum that remains impoverished even by Third World standards. And throughout, the Communist Party has been trying to retain its hold on political power, in the process exerting influence over the institutions of civil society—such as the media, the academy, religious institutions and civic associations—that might ease such major transformations.
Law has had an increasingly important part to play in all this. The leadership has come to see law as crucial to facilitating China’s development and engagement in the international economy. As the economy and society have become vastly more complex, with more and more strangers dealing with one another, there is a growing need for rules. Some also look to law as a surrogate for freer political and civic institutions—that is, they hope to be able to express through law interests that are still difficult to advance directly via politics.
Lurking behind all this is the question of whether the government will cede sufficient independence to legal and political institutions so that they can provide outlets through which the inevitable discontent that comes from such rapid transformation can meaningfully and constructively be channeled.
All this raises fascinating questions about the nature of the rule of law, the extent to which it can thrive in different political and social circumstances, and law’s capacity to lead political change.
How should we understand the changes under way in China’s legal development?
A quarter century ago, China had some 3,000 lawyers—the majority of whom had a Soviet-style education and hadn’t been allowed to practice during the decade of the Cultural Revolution, when many were consigned to manual labor. The government decided at that time that it wanted to grow the legal profession 50-fold in a single generation! And so it did—today China has a bar of some 150,000, very few of whom are employed by the state. There is similar growth under way in the court system, the legislative process, legal education and many other aspects of the legal system.
On the one hand, these are developments without precedent in world history, and we would do well to credit China with what it has accomplished. On the other, they have engendered the kinds of problems one might envision such sudden, large-scale, top-down change might bring. For instance, there is a dearth of wise gray heads to mentor the thousands of new lawyers—there are scarcely any lawyers over the age of 50—and serious questions remain about the bar’s independence from the state, to mention some of the most critical challenges.
What role has HLS played in this?
Harvard has played an extraordinary role in Chinese legal development for more than a century.
Professor Warren Seavey was in China advising the authorities even before the last dynasty fell in 1911. Former Dean Roscoe Pound served from 1946 through 1949 as a principal legal adviser to the Nationalists, the Kuomintang government under Chiang Kai-shek, even though he was in his late 70s, conducting investigations of courts and prisons and writing with enormous insight about the challenges of legal development. [See Gallery.] I’ve been working on an extensive study of Pound in China together with one of our Chinese S.J.D. graduates, Professor Yu Xingzhung [LL.M. ’91 S.J.D. ’95] of the Chinese University of Hong Kong.
At present, Harvard has the broadest and most interesting range of involvement with Chinese legal development of any American school. Hal Scott and his Program on International Financial Systems have created a very impressive set of interactions with important actors, public and private, Chinese and foreign, concerning issues of finance and economic development in China. The Berkman Center has been the leader worldwide in documenting Internet censorship in China, changing the terms of debate through its rigorous empirical work on the subject. [See Digital pathways to Asia.] And, to give just two more of many possible examples, Professor Terry Fisher [’82] has launched Creative Commons in China, getting a very positive response, and Charles Ogletree [’78] did a series of fascinating programs training Chinese lawyers to deal with issues of domestic violence.
And what about your own role?
I’ve been involved for decades. Almost 25 years ago, with Professor Randle Edwards [’64], then of Columbia, I founded the first academic program in the PRC on American law and the first national exchange program to bring Chinese students to the U.S. for legal education—including many who are in the forefront of legal change in China today. In the years since, I have been called on by both our government and China’s—as well as multilateral organizations, foundations, civic groups and NGOs, law firms and businesses—to offer advice on a range of issues from trade to human rights to intellectual property to the legal profession and legal education and beyond. Through this work, I’ve met with Presidents Hu and and Jiang of the PRC. And in recent years, I’ve been thrilled, through my pro bono work with the Special Olympics and in collaboration with Visiting Professor Michael Stein [’88], to have been involved in issues of disability in China. I’m happy to have played a small part in efforts to revise China’s national disability law and in nurturing the study of disability law there.
But perhaps the most important role that any of us at Harvard has played has been an educational one, through our research and our students. On the research side, for instance, last year we convened the first conference held anywhere in the world on how the professions and ideas of professionalism are forming in China. Drawing on experts from eight different schools at Harvard and from leading universities elsewhere in the U.S. and China, we looked at law, medicine, the clergy, journalism and a number of other fields. We plan to publish a book from the conference and have been urged by our Chinese participants in particular to hold a sequel in the PRC.
What roles have our students played?
Ever since our first student from China, Chang Fu-yun [LL.B. ’17], came from Tsinghua University almost 100 years ago, the law school has been educating future leaders of China. Chang Fu-yun is a good example. After returning to China, he was a bridge between China and the larger world, first playing a central role in returning the customs service from foreign to Chinese control and then representing China during the negotiations leading to the founding of the U.N. It was a real treat for me to meet him decades ago in the course of my research. His daughter, Julia Chang Bloch, who was the first Chinese-American to hold ambassadorial rank, and her husband, Stuart Marshall Bloch [’67], endowed a fellowship program in his honor that has helped dozens of PRC nationals to study at our law school.
Before students from the PRC could come here, we educated many students from the Republic of China—and still do—who have had prominent roles in legal development, including Vice President Annette Hsiu-lien Lu [LL.M. ’78] Taipei Mayor and Kuomintang Party Chairman Ma Ying-jeou [S.J.D. ’81], Grand Justice Lai In-jaw [S.J.D. ’81], and the civic leader Eric Tung-sheng Wu [LL.M. ’77 S.J.D. ’90]. [See story on Lu and Ma.]
Our graduates from the PRC are younger but also very impressive. They’ve done all sorts of wonderful things since returning—in government, academe and law practice. One amazing person who has already made an impact is Li Bo [’99], who is not only a magna cum laude J.D. graduate but also holds a Ph.D. in economics from Stanford. Bo is now the principal legal adviser to the head of the Chinese central bank and has been intimately involved in the most complex issues the bank has confronted vis-à-vis foreign participation in the Chinese economy and Sino-American relations.
Another is Wang Chenguang [LL.M. ’86], the innovative dean of Tsinghua Law School, who was Dean Kagan’s classmate at HLS. Another is Lan Lan [’94], who represents major American companies in China.
Many of our non-Chinese alumni are at the forefront of every aspect of our relations with China. [See sidebar.] You’ll find them at the highest levels of our government, foreign governments, multilateral organizations, foundations, business and investment banking, think tanks and NGOs, and, of course, the leading international law firms that have built practices concerning China. And the vast majority of American scholars involved in Chinese legal studies are graduates of HLS, including those teaching at Columbia, Cornell, George Washington, Georgetown, NYU, Penn, Washington, Wisconsin and Yale, among other schools.
And how about today’s students?
Our current students are, if anything, even more extraordinary—the Americans have had chances to live in China that the earlier generation didn’t have, and our Chinese students have had even more exposure to the larger world than their predecessors.
The students are so engaging, and the range of backgrounds and numbers of students and visiting scholars in Chinese law are large enough to form a serious, vibrant and intellectually diverse community. Two years ago, when I was teaching one of the first constitutional law cases from the PRC, we had a lively debate about its significance in which PRC students offered views ranging from it being equivalent to Marbury v. Madison to it being a sham, with everything in between! When one of the U.S. students asked if the case suggested there was hope for constitutional development in China, I asked him to reflect on what he had just witnessed—a range of stunningly smart law students displaying a commitment to pluralism and the value of vigorous, open debate.
The East Asian Legal Studies program, I should also say, is a singular resource in American legal academe—in that it does not divide by nation but for some four decades has been bringing together faculty, students and visiting scholars with different interests pertinent to the region so that they can challenge and learn from one another.
How has your training as a legal historian shaped your understanding of contemporary Chinese law?
In the “Analects,” Confucius tells us, “wen gu er zhi xin”—look to the old, to understand the new. Those certainly seem to me wise words regarding China, one of the world’s oldest civilizations, if not more generally. I see China—including the extraordinary changes in my lifetime—in historical terms. Indeed, I think it helps us to understand and situate the magnitude of recent change.
China has a long, rich and much-underappreciated legal history. When I first started researching that history—thanks to a grant I received when I was a student at HLS that made it possible for me to spend a summer in Taiwan—the conventional wisdom was that all Chinese law prior to the 20th century was penal and was harshly applied with little attention to procedural justice. My own research indicated that this was simply wrong—that China had a sophisticated legal tradition that encompassed business, administrative, family and other concerns, not just penal matters, that there was an acute concern with justice, and that ordinary citizens did avail themselves of legal remedies.
This dispels suggestions that there is an antipathy in Chinese civilization toward law. And it’s useful to keep in mind when delving into specific questions. For instance, Chinese attitudes toward intellectual property—the protection of which is a major source of tension in the PRC’s relationship with the U.S.—bear the imprint of historic approaches, as I wrote a few years ago in my book on the subject.
What lessons have you drawn from studying interaction between the U.S. and China regarding law?
We in the U.S. have much to offer China but only if we offer it with an appropriate air of humility. At times, our lack of a broader comparative framework leads us to present the Chinese with only the American alternative to what they now do. Our advice would be much-enriched if it set forth a variety of alternatives, underscoring both core principles that are widely shared by democratic, law-abiding states and the range of different institutional forms through which such principles might be promoted. This would be far more empowering—it would suggest that the Chinese might design institutions suitable to their own circumstances to embody these core principles rather than endeavor to emulate institutions that may, in some respects, be peculiar to our own circumstances.
Looking at China ought to give us a chance to reflect on our own legal system and its underlying assumptions. It provides us with an opportunity to think about the historical contingency of our experience and the ways in which our legal institutions are linked to other dimensions of our political, social and economic life.
The Chinese are learning not only the “official” lessons we think we are imparting but other messages that we may not even realize we are sending. So, for instance, China’s accession to the World Trade Organization was generally seen here as representing its embrace of a rule-oriented international order. But in addition to absorbing those rules, the PRC also clearly has taken to heart the ways in which the U.S.—not to mention the Europeans, the Japanese and other powerful actors—stretches those rules to serve its ends.
Looking ahead, it will be interesting to see the ways in which, even as China engages further with international norms, it begins to exert its influence in shaping those norms. For, if anyone thinks that China will be content simply to follow in our wake, they have a big surprise in store.
Not every Harvard-trained expert on Chinese law is a Chinese national.
William P. Alford ’77 is Henry L. Stimson Professor of Law, vice dean for the Graduate Program and International Legal Studies, and director of East Asian Legal Studies at Harvard Law School. He is the author of “To Steal a Book is an Elegant Offense: Intellectual Property Law in Chinese Civilization” (Stanford University Press, 1995), editor of “Raising the Bar: The Emerging Legal Profession in East Asia” (Harvard, EALS, 2006), and author of numerous articles on Chinese law and legal history, among other subjects.
Professor Alford is an honorary professor of Renmin University, Zhejiang University and the National Institute of Administration in the People’s Republic of China, and an Honorary Fellow of the American Studies Institute of the Department of Law of the Chinese Academy of Social Sciences. He directed the China Center for American Law Study, the first academic program in U.S. law in the PRC, was a founder in 1982 of the U.S. Committee on Legal Education Exchange with China, is the recipient of a number of awards and fellowships for his work on China, and is on a host of advisory and editorial boards.
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