This post kicks off a symposium on China and the Political Economy of the International Legal Order.
Interpretations of China suffuse nearly every global debate, a reflection of the country’s ever-growing geopolitical and economic significance. Yet for those seeking those to understand China from a critical left perspective, the often-contradictory nature of these interpretations expresses much of the bewildering nature of the current global moment. It is all too obvious how casting China as an existential threat to the U.S. has served to obstruct an examination of the panoply of failed assumptions about the relationship between democracy and markets that shaped the U.S.-led late 20th century global order—all while churning ugly racial antipathy against its own citizens. But many holding themselves out as critical leftists have, in turn, cast China as an almost savior-like social democratic counterweight to U.S. economic and military imperialism—even while no other regime has benefited more from the anti-democratic structure of global economic integration than the openly authoritarian Chinese Communist Party. Given the presence of so many troubling and suspect framings, there is an urgent need to develop a genuine critical left internationalism to help think through issues related to China.
To date, however, the LPE movement has yet to concretely engage the subject. This is predominately because any such engagement with China confronts two broad challenges. First, it requires bringing LPE concepts into more direct comparative conversation with debates regarding the diverse legal underpinnings of the global economic order. Second, it requires developing a critical legal left internationalism that embraces a non-U.S.-centric anti-imperialist position, moving beyond limited Cold War imaginaries. To address these challenges, we’ve convened a range of scholars currently thinking through how to relate the study of Chinese law to the questions that underlie and motivate the LPE movement.
To develop a cosmopolitan LPE, we should begin by acknowledging that some LPE framings have strong provincial origins. Most directly, many current LPE concerns are driven by historical particularities of the U.S. legal academy. For example, the common oppositional framing of LPE to “law and economics” rarely has traction abroad, as L&E is largely absent from most foreign legal academies. This is not to say that the regulatory ideas and frameworks associated with L&E in the U.S. are non-existent in other countries, but where present they operate through different pathways. The application of LPE critiques therefore requires careful dialogue and translation to build bridges beyond the U.S. legal academy.
There are nevertheless common and productive threads that can illuminate the essentially transnational legal aspects of modern capitalism. For instance, a key insight underlying LPE perspectives is skepticism over the public/private law divide, and the elision of democratic values from the legal organization of the U.S. economy. This willingness to excise democratic values from economic production is, however, also a defining feature of Chinese state capitalism in recent decades. Similarly, LPE scholars have targeted various aspects of corporate law for democratic critique, yet worries about corporate domination are hyper-charged globally. Modern corporations—much more than international institutions, government agencies, or civil society organizations—are the material conduits of globalization, and they are organizationally authoritarian institutions whose views of labor instantiate the antipathy for economic democracy which permeates the international legal order. In fact, the presumption that democratic values can (and should) be excluded from economic production is a defining shared logic that has facilitated the rapid integration of almost every national economy into the modern global economic order—inclusive of overtly politically authoritarian regimes.
It is thus incontestable that the U.S. LPE movement can gain insights from concurrent developments in Chinese political economy. One of the most damning traps of modern social science are models that posit China as an exception to be explained from the instinctive generalization of particular national experiences, such as that of the United States. Most directly, Chinese law does not exist in some culturally over-determined, ontologically distinct social universe from U.S. law, no matter how complex their differences may be in many instances.
However, the U.S.-China relationship presents specific challenges for LPE scholars seeking to be part of a critical left internationalism. It is difficult today to avoid the generational impact that Cold War frameworks have had on articulations of “anti-imperialism.” We must not merely avoid theorizing anti-imperialism from what Aziz Rana has called “the heart of empire,” but also escape the specific legacy of the Cold War’s framing of specific nation-states as vanguards of competing emancipatory ideologies. This is unavoidably true for those within U.S. law schools, whose very national setting inherently generates asymmetries with foreign interlocutors that gravitationally distort even well-intentioned attempts to understand foreign law, and Chinese law incisively so.
On one hand, we are witnessing the rapid disavowal of modernization theories, which linked economic liberalization to democratic development and which underpinned the teleological justifications for the spread of capitalism in illiberal contexts. Such a developmental path was powerfully projected onto China by the full panoply of mainstream political thought in the U.S. in the post-1978 era. On the other hand, many critical left perspectives continue to embrace an inverse distortion—that China somehow represents an oppositional position in the global order promoting social democratic values or a coherent set of national institutions embracing economic democracy.
However one normatively judges China’s rapid post-1978 rise in living standards, these improvements were achieved through means hardly antagonistic to the international capitalist order. The forms of development China has pursued internationally, aggressively couched as an alternative to U.S.-led efforts, are hardly revolutionary in economic, much less political, terms. While it is understandable that those marginalized within the U.S. would hope for some true external counterweight, it is nonetheless imperative to recognize that no nation-state today pursues a genuine commitment to promote social democracy outside its own borders—even those which some have looked to for aspirational alternatives, such as German co-determination.
Positing China as such an alternative then not only obscures our understanding Chinese political economy, but also fundamentally inhibits understanding the mutual embedding of the U.S. and China as powerful nodes in sustaining the current global economic order. Debates about “decoupling” beg questions about how such integration occurred—questions in which international law and international law firms remain central—if the two countries represent such ontologically different visions of economic life. More bluntly, both countries have played a central role in upholding the other’s own form of predatory capitalism at home and abroad.
This means that many things taken to be alternative perspectives, in fact, run in parallel. Take the hot-button issue of how to position Taiwan within an anti-imperial frame. Many rightly note that many holding themselves out as critical leftists repeatedly marginalize, if not outright ignore, Taiwanese perspectives while parroting CCP framings. At the same time, the “defense” of Taiwan has been used as means to justify the still ever-expanding U.S. military-industrial complex. Unfortunately, both of these things can be true at the same time—as the issue’s renewed impact on Guam makes evident. To assume that the only option is embracing either country’s democracy-disrupting “national security” discourses is a false choice when, at best, we are facing what some call “competing” or “multi-polar” imperialisms.
However, all of these challenges demonstrate the deconstructive and reconstructive promise of a cosmopolitan LPE movement. Even given the methodological work involved, LPE’s focus on the concrete legal choices that shape the economic grounds of democratic vitality strikes as much at the heart of an essentially anti-democratic international economic order as it does at particular local instantiations in the United States. Fertile analytical ground abounds in labor, corporate, property, environmental, and, essentially, every facet of modern regulation. In tandem, de-sacralizing the relationship of courts to democratic politics in the U.S. can only be enriched by engaging concurrent international debates—especially as Warren Court-era visions of American lawyers and lawyering dominate even progressive U.S. legal academic views of China and elsewhere in recent decades. Ultimately, there is great mutual consonance between LPE critiques of law and democratic vitality in the United States and international debates on global democratic development.
Taking concrete advantage of these possibilities is not an easy task. It increasingly falls on the shoulder of junior scholars who face not just the precarity induced by the near global assault on universities but also the increasingly sharp edges of the racialized nationalisms that the U.S.-China rivalry induces—potentially involving networks of friends, family, and colleagues. It can be an unpredictable line to walk even for established scholars, one that can risk accusations of being an apologist for either country’s many domestic and international harms.
As the content of the symposium demonstrates, this is an incredibly capacious subject. Vincent Wong interrogates the comparative life of “racial capitalism” for parallel analysis of U.S., Chinese, and Canadian LPE. Wanshu Cong explains how Chinese debates on “foreign related rule of law” implicate potential Marxist theoretical contributions. Eli Friedman maps out how suppression of labor has been central to Chinese economic growth as a mutualistic, not antagonistic, element of its relationship to parallels dynamics in modern U.S. development. Xiaoqian Hu argues for a vision of comparative US-China legal analysis that avoids stigmatization without being captured by disabling relativism. Andrea Wang outlines divergences in U.S. and Chinese courts’ treatment of the transnational litigation at the heart of economic global integration. And, finally, Alex Wang explores how empathy can break down the dehumanizing binaries structuring much US-China analysis. Hopefully, these contributions will spark further inquiry and collaboration for this core aspect of LPE’s international life.