As Dr Matthieu Burnay convincingly emphasized at the last EUPLANT Roundtable in Brussels, Chinese and Europeans often talk about the same concepts, but mean a different content. I would like to add that not only the (concrete or abstract) concepts differ between the legal orders. Diversity can also be found on the meta-level, as the methods of applying those concepts to the law and of comparing them significantly vary between China and the EU (and its Member states). This blog post will show how both the concepts and the methods of inner-state and comparative law in China are shaped by Sino-Marxism and Xi Jinping Thought – and what consequences their emphasis on practice, actuality, and politics yield for EU-China Legal and Judicial Cooperation.
29 October 2019
As Dr Matthieu Burnay convincingly emphasized at the last EUPLANT Roundtable in Brussels, Chinese and Europeans often talk about the same concepts, but mean a different content. I would like to add that not only the (concrete or abstract) concepts differ between the legal orders. Diversity can also be found on the meta-level, as the methods of applying those concepts to the law and of comparing them significantly vary between China and the EU (and its Member states). This blog post will show how both the concepts and the methods of inner-state and comparative law in China are shaped by Sino-Marxism and Xi Jinping Thought [1.] – and what consequences their emphasis on practice [2.], actuality [3.], and politics [4.] yield for EU-China Legal and Judicial Cooperation [5.].
1. Sino-Marxism (中国(化)马克思主义) and Xi Jinping Thought (习近平思想)
Sino-Marxism, officially also called Marxism with Chinese characteristics (中国特色马克思主义), is conceptualized as the “sinicized and modernized” version of Marxism. It consists of several, very diverse elements like Marxism-Leninism (马克思列宁主义), Mao Zedong Thought (毛泽东思想), and Deng Xiaoping Theory (邓小平理论). Its latest element is Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era (习近平新时代中国特色社会主义思想), included in the Chinese Communist Party’s (“CCP”) Statute in 2017 and the Chinese Constitution in 2018. Elevated to the highest levels of official doctrine, it is disputed whether and to which extent it constitutes: a continuance of current ideology and praxis; a return to former, esp. Maoist principles; or rather a qualitatively “new era” (新时代) featuring a “new normality” (新常态), as stated in the official discourse.
In this modified form, Marxism still is authoritative for both CCP and Chinese state organs and eminently important for China’s population and academia. It thus yields far-reaching implications both for Chinese positive law and legal studies. The latter concerns scholarship in both inner-state jurisprudence and comparative law. Also, is not limited to those “schools” officially denominated as Marxist and with “Chinese characteristics”, i. e. (inner-state) Marxist jurisprudence (马克思主义法理学) and Marxist comparative law with Chinese characteristics (中国特色马克思主义比较法). In content and methods, Sino-Marxism claims to be far from “orthodox Marxist dogmatism”. Yet, least as far it is from radical-democratic readings of Karl Marx and Friedrich Engels, due to the following (potentially authoritarian) characteristics:
2. Law and Practice (实践)
First, Sino-Marxism conceptualizes law, and theory in general, as subordinated to practice (cf. Mao, transl. English). This is because making law, as any other activity of the state or the party, must “seek the truth in the facts” (实事求是) and “act according to practical necessities” (cit. Xi, Li Jianguo, Chen Duanhong, etc.). This has been justified by claims referring to base-superstructure-theory (基础和上层建筑理论), the core element of (historical) materialism ((历史)唯物主义). As part of the superstructure, positive law, is said to be erected on, conditioned upon (cit. Marx, transl. English), and having developed from (cit. Engels, transl. English) the practical base.
Methodically, legal studies, too, are dependent upon practice (as the base). This is because science and theory, too, form part of the superstructure (cf. Engels, transl. English). Such legal pragmatism (使用主义 or 务实主义) manifests itself, in inner-state jurisprudence, in analytical techniques like “theory testing according to practice”. In the realm of comparative law, it results in a focus on “transfer of foreign experiences”, generating concrete advice for legal reforms.
3. Law and Actuality (现实 or 实际)
Secondly, the practice that law must abide by is the “actual” one. Actuality has a factual and temporal dimension, designating the “reality” at a certain point in time. This means that base-superstructure materialism is complemented by dialectics, resulting in dialectical materialism (辩证唯物主义). This thinking in contradictions emphasizes the dynamic process between base and superstructure featuring a “rich set of dialectical causal possibilities”. The officially “sinicized” version of dialectical materialism, Mao’s theory of contradictions (矛盾理论) (transl. English), aims to identify the principal contradiction (社会主要矛盾) and non-principal contradictions in each society – and to solve them. As these contradictions and practical necessities constantly change, actuality gives rise to significant flexibility of the (only seemingly stiff) Chinese ideological straitjacket. However, this general clause is devoid of content – and exclusively defined by the (central level of the) CCP. Therefore, Chinese leaders could in 1978, with a wave of the hand, declare economic development being the highest goal in Chinese politics and law, and claim market economy being socialist (社会主义市场经济) and a product of Marxism.
Methodically, this results in inner-state legal analyses starting from the contradictions and actual “reality” in the Chinese society and explain Chinese law on their basis. Parallelly, in comparative law such analyses start from the contradictions and actuality in their respective societies and compare the law of various countries on their (thus both analytical and socio-economic) basis.
4. Law and Politics (政治)
Sino-Marxism advocates an integrated “politics and law” concept (政法), where politics is superior to law and to legal studies. That is, however, not mandatory in a Marxist argumentation, as both politics, law, and science all belong to the superstructure which does not necessarily feature an internal hierarchy. According to Sino-Marxism, these politics necessarily mean politics by the CCP. This has been justified by claims that there could only exist one ruling party (执政党), which furthermore had to exercise leadership over the state (党的领导), art. 1 para. 2 Chinese Constitution and art. 3 Chinese Legislation Law.
Methodically, this is supported by so-called political legal studies (政治法学) and politico-legal legal studies (政法法学), and, in public law, by political constitutionalism (政治宪法学) (developed by Chen and criticized by many). The latter classify only content set by the CCP as the substantial and real constitution of the PR China – be it the CPC statute, other party norms, or the above-mentioned principle of party leadership itself. Moreover, it emphasizes constitutional practice over constitutional legal norms.
5. Implications for EU-China Legal and Judicial Cooperation (EUPLANT) (中欧法律与司法合作)
What are thus the implications of Sino-Marxist, Xi Jinping Thought, and the jurisprudential study thereon on EUPLANT? Shall it be reconceptualized as “EUPLANT with Chinese Characteristics for a New Era” (新时代中国特色中欧法律与司法合作)?
Certainly, EUPLANT has to make aware, and be itself aware of, the very different ideological foundations of law in China and Europe. However, it should not essentialize and orientalize these differences as “Chinese characteristics” (中国特色). Because claiming China and its law as special would, at the same time, suggest Europe and its law as normal.
Moreover, as a specifically legal project, EUPLANT should place its emphasis on normativity (规范性). Normativity describes the specific existence of law as “ought”, analytically separated from “is” (cf. Kelsen, transl. English), as well as the “intrinsic value” and “immanent force” of the law. In contrast, Sino-Marxism conceives of normativity as “emanating from political realism”, “repelling abstract and void idealism”, and “being born out of political power”. This concept seems questionable not only in the EU-China context, but already from an inner-Marxist perspective, as it negates: the difference between base and superstructure; the distinctions inside superstructure, especially between the political and legal; and thus the (analytical) autonomy (自主性) of law and of legal studies (cf. Kelsen, transl. English).