Academic journal article International Journal of China Studies

The U.S. Impact on China's Legal System during the Reform Era

Academic journal article International Journal of China Studies

The U.S. Impact on China's Legal System during the Reform Era

Article excerpt

Abstract

An enormous amount of Chinese borrowing from the United States in legislation during the post-Mao era has been noted by mainland China scholars. Their studies indicate roughly about 60-70 per cent of China's transplantation of laws is related to the United States. In comparative terms, China has borrowed more from the United States than from any other countries in legislation in the last three decades. This situation contradicts the CCP communist ideology, the Chinese statist cultural tradition, and is a departure from previous Chinese law transplantation experiences in the last century. The Chinese fondness of the U.S. laws appears to be rooted in complex political, social, economic and global situation, not an enlightenment of the elites.

Keywords: Chinese constitutionalism, Chinese intellectuals, political reform, U.S. constitution, U.S. impact on China, political discourse, law transplantation

JEL Classification: K10, K30, K40, K49

(ProQuest: ... denotes non-US-ASCII text omitted.)

1. Introduction

An enormous amount of Chinese borrowing from the United States in legislation during the post-Mao era has been noted by scholars in mainland China. Studies conducted by scholars in mainland China indicate that about 60-70 per cent of China's transplantation of laws is related to the United States. In comparative terms, China has borrowed more from the United States than from any other countries in legislation in the last three decades, according to these studies.1

This has raised some serious questions in law transplantation from ideological, cultural and historical perspectives. Ideologically, China is supposed to be on the opposite end to the United States and closer to welfare states that are known for their social democratic practices such as France and the Scandinavian countries. China may have a better chance to borrow from these Western European countries that lean more towards equality than liberty. Culturally, between the two major legal systems, i.e., the European continental system and the Anglo-American system, China may have a better chance to borrow from the former which is more "statist" than the latter that is noted for its emphasis on individuals. After all, China has had a statist tradition dating back for more than two thousand years. Historically, China had not been noted for its borrowing from the United States in terms of law transplantation until recent decades. Instead, countries like Japan, Germany, and the former Soviet Union had had more impact on China in terms of law transplantation in the twentieth century before the post-Mao period. Why has China been so fond of the United States in law transplantation in the last three decades, as demonstrated in the studies of mainland Chinese scholars?

This article studies the U.S. impact on China's legal system during the reform era, with a focus on legislation, through the writings and studies of some mainland China's leading scholars. Qualitative and quantitative studies show that mainland Chinese scholars felt the strong impact of the United States on China's legal system during the time period. It looks like that China's massive borrowing from the United States in its legal system was a result of complex political, economic, historical, and global situations, not a sudden enlightenment by the elites.

Methodologically, this study is largely qualitative, although some data have been collected. It is almost impossible to measure exactly to what extent that China has borrowed laws from the United States, because many U.S. laws are similar to that of some other countries and some laws have multiple origins. Therefore, the data cited in this study are used suggestively.

In addition, this study used lots of studies from scholars in mainland China. The use of social science research results from mainland China scholars is new. In fact, scientific research by mainland Chinese scholars in general, until recently, was not taken seriously in the West. …

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