This post is part of a symposium on China and the Political Economy of the International Legal Order.
Over the past two years or so, the so-called “foreign-related rule of law” (涉外法治), a term articulated by Xi Jinping, has gained enormous influence in Chinese official and academic discourse. While its precise definition remains obscure, the basic idea involves using legal means, including the extraterritorial application of Chinese laws, to defend China’s sovereignty and national interests and to advance global governance. There is no doubt that its emergence is motivated, in part, by the China-U.S. rivalry, as evidenced by the adoption of the Anti-Foreign Sanctions Law in 2021, which allows China to take countermeasures against sanctions that target Chinese citizens or organizations and against foreign interferences with China’s internal affairs. However, to understand the importance of this development, we must begin with a more basic question: why does a geopolitical power need law in the first place?
In the Chinese context, the value of the “rule of law” is not taken as a given. Rather, generations of post-Maoist legal academics have been at pains to assert its value, both as a counterweight to the enduring mantra that “there is no separation between politics and law,” and as a way of navigating the political environment. Without going into too much detail about the post-1978 history of Chinese law schools, the fact that the development of legal education in China has closely followed the needs of economic reform is suggestive of the political contingency of the discipline’s existence. Chinese jurists are, for instance, mocked as “writing poems at the request of the Emperor.” Because of such contingency, there is always a certain existential anxiety about the discipline in the Chinese legal academia, especially in times of major social, political, and economic changes (think of, for example, the rather meagre and hugely tempered critical response from the legal academia to the legality of China’s anti-Covid measures).
The intrinsic value of international law is even less obvious in the Chinese context. Given its history, China is acutely aware of the hypocrisy of powerful countries speaking of international law and has taken, by default, a realist view of international law. The first-generation of Chinese international law scholars and lawyers, such as Wang Tieya and Zhou Gengsheng, all clearly understood that international law is a part of international relations and were well-versed in diplomatic history. Even as the two domains are formally separated in China’s higher education, the dominant view remains that analysis or suggestions by international law scholars could not be taken seriously if devoid of an understanding of power politics. In more recent years, interdisciplinary dialogues between international law and international relations have been welcomed by legal scholars, with a cautionary note that international law risks being swallowed by international relations. In practice, international law scholars remain at the periphery in China’s (foreign) policymaking, even as the need for such expertise is sorely demonstrated by the South China Sea Arbitration. Such marginalization of international law may change with the recent governmental plan to upgrade the status of international law in China’s higher education, but this move rather reinforces the discipline’s dependency on the government’s political and diplomatic agendas.
The political contingency of Chinese legal academia and international law in particular means that it is simply not self-evident that China would turn to international law in a hostile international environment. If law is ultimately just another instrument of politics, law has no intrinsic value, and such rhetoric as “foreign-related rule of law” can be simply dismissed. But this does not seem to be the case. So how exactly can law help China navigate the current geopolitical conditions?
Developing a Marxist LPE Approach
Before attempting to offer a preliminary answer to this question, allow me to briefly explain what kind of LPE-inspired approach is needed to address this question. This approach cannot simply apply or import LPE, a movement developed in the American legal academia, to both China and the international legal order. As Ntina Tzouvala points out, for international law, a political economic critique has to be methodologically distinct from the LPE movement in the U.S. because the target of the latter, i.e., the “21st-century-synthesis,” does not exist for international law. Justifications for domination in international law take many forms, sometimes in rather contradictory or unintended ways, but law and economics is certainly not a notable foe here. Not dissimilarly, there is nothing close to a law and economics hegemony in Chinese law schools (nor in the Chinese IL research), given the enduring belief about the intrinsic connection between law and politics.
This means that an LPE approach for China and China’s engagement with international law needs to find targets other than law and economics, while remaining firmly committed to a broader socioeconomic democratization agenda. It would need to go beyond the familiar critique that law serves the rulers’ interests, a point mainstreamed to the extent of being reductionist and dogmatized in Chinese Marxist legal studies of the Maoist era. This approach would need to demonstrate in the Chinese context why and how the preservation of domination needs law—unpacking, for example, how mainstream formalism and anti-formalism (related to the idea of developing China’s indigenous legal theory or method), while often opposing each other, can both be employed to legitimate socioeconomic domination. An LPE approach would further need to address how domestic domination in China (based on class, gender, or race) is brought about or legitimated by China’s integration into the global order and its engagement with international law by way of either rejecting international law, notably in the human rights field, or accepting it and therefore finding alibis, such as in the economic field. Such ambivalence in China vis-à-vis international law is used by many Chinese and non-Chinese international law scholars to demonstrate China’s exceptionality in the international legal order, and in doing so, reinforce the division between the human rights and economic fields. An LPE approach, questioning this division and China’s ambivalence, would then connect domestic domination and exploitation in China to those operating globally and draw a broader picture of the distributional effect of China’s so-called “rise,” which is itself effected by international law.
I concur with Tzouvala that the most comprehensive and powerful political economic critique of international law comes from Marxism. I intuit, furthermore, that Marxism also offers the most plausible version of LPE for approaching China. While I cannot, in this short piece, develop a full thesis about how a Marxist LPE sees China and its role in the world order, I will briefly sketch what a Marxist approach could offer.
First, methodological nationalism remains pervasive in understanding and critiquing the international legal order. For instance, the China-U.S. rivalry is also entirely treated from a state-centric perspective. Such a perspective feeds into nationalist and populist sentiments while overlooking highly complex relations between various social and economic strata across the Pacific Ocean and beyond. Class, especially its transnational form, is what a Marxist approach to international law brings to the fore. The so-called transnational capitalist class (TCC) is still in formation and contains tensions both between the elites of the North and between the elites of the North and their emerging counterparts of the South. A class perspective on the China-U.S. rivalry allows appreciating such conflict as one of an internally contentious TCC—whose economic competition tends to involve regulatory and political conflicts and even inter-imperialist rivalries—and therefore endemic to the current international legal order. More importantly, it shifts the analytical gaze to domestic class struggles and reveals how such geopolitical competition within the TCC is produced by and results in the exploitation and dispossession of other classes by the national segments of TCC who are domestically dominant.
Second, for the perennial question of how special China is (and its twin, how special the U.S. is), Marxist perspectives allow one to rethink some distinctions commonly drawn between the two countries, such as neoliberal capitalism v. state capitalism, or liberal democracy v. autocracy. These distinctions can be sometimes quite real, but to essentialize the rivalry as about any one of these dimensions (or even some combination thereof) is bound to fail, not least because one can always find counterexamples where such distinctions do not give rise to geopolitical tensions and are even tolerated by the hegemon. Think of the first three decades of China’s economic reform. Despite various frictions, the U.S. government largely adhered to the containment approach. Or think of historical inter-imperialist rivalries such as those leading to the World War I. To reduce each conflict to being solely about, say, liberalism v. Prussian militarism or Tsarism is obviously problematic.
Yet we may use these distinctions to a certain extent to develop detailed, granular analysis of how relations of power and exploitation are formed and contested in each instance, while not losing sight that such distinct relations are different facets of the same world order where the TCC is dominant. For example, one cannot fully appreciate the racial violence against Uyghurs without considering the way Xinjiang has been forcibly transformed to integrate into the world economy (see Vincent Wong’s work and contribution to this symposium), just as the legacy of the war on terror would be incomplete if we do not consider the liberalisation policies imposed on Iraq.
Third, Marxism allows one to approach law precisely not merely as another instrument of power but also something much more complex. Especially enlightening in Marxist scholarship of law is the discussion about the homology between the legal form and the commodity form and how law, precisely due to its “relative autonomy,” is a precondition for the reproduction of capitalist relations of power. Moving to the international arena, Marxist scholarship shows how rules about international legal subjectivity, especially the formal criteria of statehood, are inextricably tied to the global expansion of capitalism and the continued construction of racial hierarchy in this process. The violence produced by the “substitution” of heterogeneous communities with formally equal, abstract, and empty legal subjectivity is also captured by Marxist scholarship in advancing various ideological critique of, e.g., statehood, development, and democracy.
Formal Equality and Domination
These discussions about law’s relative autonomy and it’s productive and ideological functions are extremely important to help understand how China, in strategically using international law and building its domestic legal systems over the past four decades, has co-evolved with global capitalism. Here, I return to the question posed at beginning: why does China need law and particularly “foreign-related rule of law” as the geopolitical conditions get more complicated?
The official and scholarly discourse in China cites familiar factors, such as the deepened economic reform in China, the increasingly inseparable connection between domestic and foreign affairs due to globalization, the expansion of Chinese business abroad, and the increasingly hostile international environment. But the Chinese discourse also stresses law as the dominant form and language of global governance, seemingly acknowledging law’s distinct value. I posit here that China’s resort to law and the juridification of foreign-related affairs should be seen against the growing unease between the long-held commitment to sovereign equality and non-interference and the actual power asymmetry between China and states receiving Chinese investment. As foreign-related matters include both intergovernmental relations and interests and security of Chinese business abroad, developing “foreign-related rule of law” would at least have the effect of enabling and disciplining at the same time Chinese foreign investment and trade and containing disputes and conflicts arising from business to a specific “rule of law,” so that the formal equality between states and non-interference can be maintained in spite of the actual asymmetries of power and wealth. That is to say, the “foreign-related rule of law” is likely to be a device for reifying the public-private division to preserve states’ formal equality under international law (formal equality being precisely the legal prerequisite for the perpetuation of inequality and domination under global capitalism).
The resort to law is obviously not devoid of hypocrisy but would offer China a unique ideological apparatus, making China’s rise and strategic engagement with international law utterly nonexceptional, for the formal positivist language is the mainstream in international law. It may also suggest a growing reliance on law and its legitimating function to compensate for the credibility deficit of China’s more grandiose narrative about its engagement with the world order. Such resort to law is not specific to China, and countries big and small all invoke international law to advance their national interests. Yet, to find ways to reconcile formal sovereign equality and actual power asymmetry has unique importance for China whose identity is very much built on anti-colonialism. It is for this task that the foreign-related rule of law can be appreciated.