Prepared for the Conference: “Foreigners and Modern Chinese Law”, Tsinghua University School of Law, Beijing, China, July 9-10, 2016; Organized by Profgessors Xu Zhangrun and Chen Xinyu

1. China, Law and the Foreigner:
Mutual Engagements on a Global
Stage
Larry Catá Backer (白 轲)
W. Richard and Mary Eshelman Faculty Scholar Professor of Law and
International Affairs; Pennsylvania State University
Prepared for the Conference: “Foreigners and Modern Chinese Law”,
Tsinghua University School of Law, Beijing, China, July 9-10, 2016;
Organized by Profgessors Xu Zhangrun and Chen Xinyu

2. Introduction
• Modern template was well set by
the end of the Qing Dynasty
• Edward Capen, “The Western
Influence in China,” The Journal of
Race and Development 3(4): 412-
437 (1913) (merged into Foreign
Affairs in 1922)
• What Western influence has
accomplished
• What Western influence should not
destroy
• Where China can learn from the West
• How the West can be most helpful.
Ceiling Louvre Paris

3. The Forms of Engagement
• Note the framework within
which this discussion is
structured
• West active; China passive
• West projects outward; China
receives inward
• West teaches; China learns
• West can modulate its behaviors
and approaches; China’s are set
and predictable
Olga Sacharoff, Els Casats de nou 1929 Catalan
Museum Barcelona

4. The Form of Engagement in History
• Long periods of opening up (Tang
Dynasty) and closing borders (Ming
and Early Qing).
• Early Republic: mimicry as
modernization
• Six Codes of the Guomindang
• Modeled on European Codes
• Foreign trained Chinese drafting
• Western legal scholars advising
• PRC—periods of opening up and closing off
(foreign trained Chinese and foreign advisors)
• 1949-1957: Soviet Union and the
Communist international
• 1957-1965: Purging Soviet Union,
indigenization and rectification
• 1965-1978: Great Proletarian Cultural
Revolution
• Post 1970s: West, social legality and
socialist modernization
Juan Corea de Vivar La Nativité Louvre 1535

5. Thesis and Object of Discussion
• The engagement of the foreigner in
modern Chinese law mimics that of
Pre-Revolutionary Periods.
• Suggest the archetypes of that
engagement.
• Suggest the lessons that can be
drawn as China itself becomes the
foreigner in its “go out”
engagements with other peoples.
• Internal lessons: Can the pattern
evolve under the CCP Basic line of
socialist modernization—
emancipation of the mind and truth
from facts approach of the modern
period?
• External lessons: Can China avoid the
replication of this form of
engagement as it becomes the
foreigner in other lands?
David II Terniers Flemish Misericordia Louvre 1600

6. Archetypes in Forms of Engagement
• The Missionary
• The Expert
• The Sycophant
• The Colonizer
• The Expatriate
• The Entrepreneur
• The Organization
Yan Liben, Lady Liu and Liu Cong Admonishing in Chains Chain
China Ming Dynasty Smithsonian Washington DC

7. The Response
• Invited influence
• Managing interventions
• Useful Strangers
• Factional instrumentalism
• Connecting indigenous and global
• Resistance
• Expulsion
• Control
• Restriction
Reservoir Istanbul 4th century A.D.

8. The Missionary
• The modern expression of the
traditional approach
• Grounded on superiority
• Object is change
• Fundamentals and normative order
• Assumption of the inferiority of the
local
• Multi-dimensional
• Religious
• Political
• Technical
• societal
• They know what is best
Altar Catalunya 8th Century, Barcelona

9. The Expert
• Types
• Lawyer
• Judge
• Academic
• Focus
• Technician
• Everyday law and legal institutions
• System Builder
• Constitutional and political order

10. The Sychophant
• At first blush the inverse of the
Missionary
• But they tend to serve as a brake
on development
• Tend to be an instrument—
either of the host or home state
• Especially important when
dealing with experts who may
have agendas tied to serve a
master.
Bartolomé Bermejo, Retable of Christ and the Ressurection
Barcelona 1475

11. The Colonizer
• The state is subsumed within a
broader order
• Made possible by current historical
phase of globalization
• China is treated like other states; but
all states are treated as stakeholders
in superior system
• Global civil society and international
organizations tend to lead
• Substantial stake in the expression of
national law for compatibility to global
norms—porosity, open borders,
transparency, etc.

12. The Expatriate
• An essential link between China and the
object of study
• 2 types
• People of Chinese extraction now citizens in
the West
• Chinese sent abroad to study
• Element of trust, and a filter
• Detaches the task of modernization from
its sources
• But is it necessary to monitor the
Expatriate for tendencies to absorb all too
well the underlying cultures she was sent
to study;
• Which community does the expatriate or
the foreign trained individual serve?
• The search for checks
• CCP membership
• monitoring

13. The Entrepreneur
• Selling of intellectual goods—a
merchant of knowledge and know
how
• China is an opportunity useful for
external market advantage in
academia and elsewhere
• Not interested in theory only
advantage—stakeholder mentality
• But an important actor as the
consumer of legal product
• Repercussions in the global sphere
where conflict. Marinus van Reymerswaele, The Tax
Collectors, 1535 Louvre

14. The Company Man
• The foreigner acts to further the
interests and normative values of an
organization other than the state
• Enterprises
• Financial and other markets
• Civil Society
• These exercise expertise and fall into
categories of missionary, expert or
sycophant
• the values are not that of the individual
representative but of the organization
• Difficulty for China is distinguishing
between states and non state actors
where the effects of both can be similar

15. The Response
• Traditional
• Invited Influence
• Useful Strangers (factional instrumentalism)
• Resistance (Boxer Rebellion; Great Proletarian
Cultural Revolution)
• Contemporary
• Fear, control and necessity;
• the pull of traditional forms of resistence
• Socialist Modernization and the construction of
the Socialist Legal System
• Initial phase: borrowing and experimentation in
controlled zones
• Indigenization through foreign trained nationals
• Construction of an autonomous system more
profoundly connected to the normative political
basis of the state
• The political work of the CCP
Bartolomé Bermejo Resurrection from a Diptych
Barcelona 1475

16. Lessons—Looking Inward
• An animal with 4 back legs cannot move
forward
• Foreigner as essential element in legal
reform
• Issue of compatibility with global consensus
approaches
• Issue of intelligibility
• Issue of compatibility with internal
normative order
• Cautions
• Focus on influence but not copying
• Focus on capacity building
• Avoid passivity in the receipt of knowledge
• Sound ideological analysis
• Avoid rigidity and bureaucratism
• Break the traditional patters of response and
opening up.
• The importance of a legitimate normative foundation
• Implementation
• When it comes to emancipating our
minds, using our heads, seeking truth
from facts and uniting as one in looking
to the future, the primary task is to
emancipate our minds. Only then can
we, guided as we should be by Marxism-
Leninism and Mao Zedong Thought, find
correct solutions to the emerging as well
as inherited problems, fruitfully reform
those aspects of the relations of
production and of the superstructure
that do not correspond with the rapid
development of our productive forces,
and chart the specific course and
formulate the specific policies, methods
and measures needed to achieve the
four modernizations under our actual
conditions.
• Deng Xiaoping, Emancipate the Mind, Seek
Truth From Facts and Unite As One in
Looking to the Future (Dec. 13, 1978).

17. Going Forward
• From the problem of the state to the problem
of the global;
• the issue of the foreigner and Chinese law has
been superseded by the issue of the global
within Chinese law and the Chinese law in the
global
• Transnational global communities
• Rise of transnational law and normative
systems
• The problem of the multinational enterprise
as a law maker
• The importance of the international order
• These transformations have changed the
nature of the foreign and the domestic, of the
state, and of the terrain within which China
must confront its own law making within a
globalized meta-legal order
• The temptation to resort of past practices is
unlikely to serve objectives or adhere to CCP
Basic Line

18. Lessons—Looking Outward
• China as “the foreigner” in its new
relationships
• Go out policy
• State owned enterprises
• Engagement with international
organizations
• Future of opening up policy in the
wake of globalization
• The use of law to those ends
• The Archetypes impede Chinese
policy and leadership globally
African traditional figures, Barcelona 2014

19. Conclusion
• The relationship of China to the foreigner has
been complicated since the end of the Qing.
• It is hard to avoid the 1913 approach of
Edward Capen with which we began to
understand the relationship of foreigner to
China; but that is the trap for China in its
engagement with law in the global sphere.
One should ask:
• What Chinese influence has accomplished
• What Chinese influence should not destroy
• Where a state can learn from China
• How China can be most helpful
• These are the questions that Chinese actors
must ask as they deepen Chinese footprints in
Africa, Latin America and Asia.
• Can China avoid the traps and tropes of
Western engagement with China from the last
century?
• Can China avoid the traditional pattern of
instrumentalism and suppression?
• How to avoid these traps will be the greatest
Challenge for China as it pursues its go out
policies and engages in national and
international forums.
Japanese Kamakura period; Louvre

20. Thank You
• My work may be accessed at
Backer in Law