Abstract
While the Society of Jesus, today, is actively reconsidering the aims and methods of missionary work, a number of contemporary professional associations and US government agencies are busily engaged in secular missionary enterprises that, in certain respects, follow the model of the seventeenth-century Jesuits. In this addendum, I discuss briefly, as one example of contemporary missionary work, efforts at exporting the rule of law to China. The aim is not to offer a general discussion of the rule-of-law concept, which has amassed a prodigious literature, or even a detailed review of rule-of-law export projects, which have proliferated since the early 1990s, but rather to highlight three striking similarities to the work of the Jesuits in China—and one crucial difference.
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Notes
William P. Alford, “Exporting ‘the Pursuit of Happiness,’” Harvard Law Review 113:7 (2000), p. 1678.
Tom Ginsburg, “In Defense of Imperialism? The Rule of Law and the State-Building Project,” Getting to the Rule of Law, ed. James E. Fleming (New York: New York University Press, 2011), p. 224. Ginsburg is somewhat skeptical of the missionary enterprise, not in itself but because success would require intrusions in the affairs of other countries that are politically unacceptable. He is also concerned that intervention often undermines indigenous social transformation. In a recent book of many on this subject, Dezalay and Garth focus on the role of lawyers as rule-of-law exporters, mediating between their home and host countries in a global market economy.
Yves Dezalay and Bryant G. Garth, eds., Lawyers and the Rule of Law in an Era of Globalization (New York: Routledge, 2011).
On the complications of the colonial legacy, see Rachel Kleinfeld and Kalypso Nicolaidis, “Can a Post-Colonial Power Export the Rule of Law? Elements of a General Framework,” Relocating the Rule of Law, ed. Gianluigi Palombella and Neil Walker (Oxford: Hart, 2009), pp. 139–169. In the US case, the Chinese actually prefer to work with nongovernmental entities because the government-to-government relationship is volatile and disruptive.
See Randall Peerenboom, China’s Long March toward Rule of Law (Cambridge, UK: Cambridge University Press, 2002), pp. 56–71.
Quoted by Bruce Ackerman, “The New Separation of Powers,” Harvard Law Review 113 (2000) pp. 633, 634. For critiques of rule-of-law orthodoxy, see especially Frank Upham, “Mythmaking in the Rule-of-Law Orthodoxy,”
and Stephen Golub, “A House without a Foundation,” both in Promoting the Rule of Law Abroad: In Search of Knowledge, ed. Thomas Carothers (Washington: Carnegie Endowment for International Peace, 2006).
These and other examples are mentioned by Frederick Schauer, “The Politics and Incentives of Legal Transplantation,” Governance in a Globalizing World, ed. Joseph S. Nye and John D. Donahue (Washington: Brookings, 2000), pp. 253–268.
These (and other) variations on minimalism reflect understandings of the generality of law. See Kenneth Winston, “Toward a Liberal Conception of Legislation,” in Liberal Democracy, ed. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1983), pp. 313–342. Although commonly overlooked, the minimalist conception of law is evident in the writings of the ancient Chinese legal theorist, Han Feizi. See Kenneth Winston, “The Internal Morality of Chinese Legalism,” Singapore Journal of Legal Studies (2005), pp. 313–347.
Dani Rodrik, One Economics, Many Recipes: Globalization, Institutions, and Economic Growth (Princeton, NJ: Princeton University Press, 2007), pp. 51–54, 189–190.
Joseph S. Nye, Jr., Presidential Leadership and the Creation of the American Era (Princeton, NJ: Princeton University Press, 2013), p. 150.
William P. Alford, “Of Lawyers Lost and Found: Searching for Legal Professionalism in the People’s Republic of China,” Raising the Bar: The Emerging Legal Profession in East Asia, ed. William P. Alford (Cambridge: East Asian Legal Studies, 2007), p. 306. On the difficulty Western observers have in identifying rule-of-law structures that fail to conform to their preconceived notions, see Alford’s illuminating discussion of a paradigmatic legal case in the late Qing dynasty, “Of Arsenic and Old Laws: Looking Anew At Criminal Justice in Late Imperial China,” 72 California Law Review (1984), pp. 1180–1256.
See Richard Flathman, “Liberalism and the Suspect Enterprise of Political Institutionalization: The Case of the Rule of Law,” The Rule of Law, ed. Ian Shapiro (New York: New York University Press, 1994), pp. 297–327.
Ian Brownlie, ed., Basic Documents in International Law, 6th edition (Oxford: Oxford University Press, 2009), pp. 244ff.
Thomas Jefferson, “To Messrs. Nehemiah Dodge and Others,” January 1, 1802, and to James Madison, October 28, 1975, in Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York: The Library of America, 1984), pp. 510 and 840–843.
Elizabeth J. Perry, “Chinese Conceptions of ‘Rights’: From Mencius to Mao—and Now,” APSA Perspectives on Politics 6:1 (2008), pp. 37–50.
For Chinese views on human rights, from the enlightenment period to the twenty-first century, see the essays and documents in The Chinese Human Rights Reader, ed. Stephen C. Angle and Marina Svensson (Armonk, NY: M. E. Sharpe, 2001).
In a letter shortly before his death, Ricci spoke about all the suffering he and his colleagues had endured in their mission to China, “being among millions of heathens, all of them our enemies; and all this for the love of God, and so that God may forgive us our sins and save us from hell.” Quoted by Michela Fontana, Matteo Ricci: A Jesuit in the Ming Court (Lanham, MD: Rowman & Littlefield, 2011), p. 275.
Mark J. Osiel, “Lawyers as Monopolists, Aristocrats, and Entrepreneurs,” Harvard Law Review 103:8 (1990), pp. 2009–2066.
Carol Rose, “The ‘New’ Law and Development Movement in the Post-Cold War Era: A Vietnam Case Study,” Law and Society Review 32:1 (1998), p. 112.
William P. Alford, “The More Law, the More …? Measuring Legal Reform in the People’s Republic of China,” How Far Across the River? Chinese Policy Reform at the Millennium, ed. Nicholas C. Hope, et al. (Stanford, CA: Stanford University, 2003), pp. 138–139.
William P. Alford, “‘Second Lawyers, First Principles’: Lawyers, Rice-Roots Legal Workers, and the Battle Over Legal Professionalism in China,” Prospects for the Professions in China, ed. William P. Alford, Kenneth Winston, and William C. Kirby (London: Routledge, 2011), pp. 48–77.
Xiaoqun Xu, “Human Rights and the Discourse on Universality: A Chinese Historical Perspective,” Negotiating Culture and Human Rights, ed. Lynda Bell et al. (New York: Columbia University, 2001), p. 235.
Stephen Holmes, “The Spider’s Web: How Government Lawbreakers Routinely Elude the Law,” When Governments Break the Law: The Rule of Law and the Prosecution of the Bush Administration, ed. Austin Sarat and Nasser Hussain (New York: New York University Press, 2010), pp. 121–152.
For an extended discussion of the law/politics distinction, see Kenneth Winston, “Constructing Law’s Mandate,” Recrafting the Rule of Law: The Limits of Legal Order, ed. David Dyzenhaus (Oxford: Hart Publishing, 1999), pp. 283–308.
Judith N. Shklar, “Political Theory and the Rule of Law,” Political Thought and Political Thinkers, ed. Stanley Hoffman (Chicago: University of Chicago Press, 1998), p. 21.
E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (London: Penguin Books, 1990 [1975], pp. 262–266.
I am indebted to Samuli Seppänen for conversations about these and other Chinese writers on the r u le of law. He analyzes their work i n his SJ D dissertation, “Useful Paradoxes: Ideological Conflicts in the Chinese Rule of Law Discourse” (Harvard Law School, 2012). For a more recent statement, see Seppänen, “Ideological Renewal and Nostalgia in China’s ‘Avant-Garde’ Legal Scholarship,” Washington University Global Studies Law Review 13:1 (2014), especially pp. 99–108. I follow his interpretations pretty closely but with more sympathy for the hybrid project. The work of these legal theorists is gradually making its way into English.
See, for example, Xia Yong, The Philosophy of Civil Rights in the Context of China (Leiden: Brill, 2011).
The concern to strengthen law by imbuing it with a Confucian sensibility in application has a very long history in China, going back at least to the Han dynasty as reflected in the legal judgments of Dong Zhongshu. See Norman P. Ho, “Confucian Jurisprudence in Practice: Pre-Tang Dynasty Panwen (Written Legal Judgments),” Pacific Rim Law & Policy Journal 22:1 (2013), pp. 48–110.
Alford, “Of Lawyers Lost,” p. 297. In chapter 4, I refer briefly to the United Nations’ failed effort to introduce constitutionalism and the rule of law into Cambodia in the early 1990s. David Chandler comments that UN personnel “knew nothing about Cambodia.” Chandler, A History of Cambodia, 4th edition (Boulder, CO: Westview Press, 2008), p. 287.
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© 2015 Kenneth Winston
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Winston, K. (2015). Exporting the Rule of Law to China. In: Ethics in Public Life. Asia Today. Palgrave Macmillan, New York. https://doi.org/10.1057/9781137492050_5
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