This post is part of a symposium on China and the Political Economy of the International Legal Order.
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In a world where differences between the United States and China are increasingly amplified and weaponized, how can legal scholars study China fairly, insightfully, and constructively? To explore this question, I contrast two approaches to studying Chinese law: what I call the “metaphysical approach” and the “postmetaphysical approach.” Although neither approach is wholly practiced or rejected by any real-world scholar, these ideal types help illustrate the different ways of seeing, knowing, and analyzing China.
Broadly speaking, the metaphysical approach holds that because reason is universal across history and culture, scholars can and should set aside their own value preferences and study other societies neutrally and objectively. The postmetaphysical approach, by contrast, presupposes that the world is marked by epistemic pluralism and it is impossible for scholars to study other societies free of their own value preferences. As such, comparative scholarship is inherently an exercise of discursive power, in which the scholar draws upon their own legal culture to construct truth about another culture.
After contrasting these two approaches, I will explain why I think scholars within the LPE movement should strive to be postmetaphysicians in principle and situational metaphysicians in tactics when studying China. We must bear in mind our own moral incompletion all the time and deploy metaphysical methods only when they are useful. If we are to develop a critical legal left internationalism, as Jedidiah Kroncke calls for in the introductory post to this symposium, the LPE movement must realize that we are all parochial actors constructing truth and justice about other societies, peoples, and governments.
The Metaphysical Approach
The metaphysical approach can be understood as possessing five characteristics. First, and perhaps most centrally, the metaphysical approach accepts that there is a single unified human faculty of reason. Through reason, any person can embark on an individual journey to find moral guidance, and the moral principle that each person obtains through reason is universal across history, societies, and individual subjects. This belief in a single universal reason gives rise to the second commitment: that it is possible to be, and one ought to aspire to be, a neutral researcher. Comparative scholars can meaningfully, if not completely set aside the socially acquired particulars of their own subjectivity, occupy neutral positions, and study other societies objectively and authoritatively.
Third, the metaphysical approach endorses the idea that there is an objective and unified system of knowledge. The existence of a single universal reason and the possibility of meaningful neutrality enable comparative researchers to produce sufficiently objective knowledge about other societies, and the knowledge produced by different researchers all fits under one unified system of knowledge. This does not mean that researchers never contradict themselves or each another, or that scholarly information is never contestable. Yet, on this approach, contradiction necessarily signals a mistake—that at least one side is wrong—and disagreement signals methodological deficiency, such as false or insufficient data, lax research standards, or logically flawed argument.
Fourth, this approach places an emphasis on expertise, professional training, and law’s regulatory power of allocating resources and prescribing behavior through rules, doctrines, and institutions. On a practical level, being a China legal scholar means being an expert on Chinese law, and the way to obtain expertise is through rigorous legal and comparative legal training. Such training includes the doctrinal methods, such as mastering laws and institutions; analytical and empirical methods, such as studying the texts, enforcement, and social consequences of Chinese laws; and certain cultural stances, such as cosmopolitanism, cultural sensitivity, and sympathy for the downtrodden.
Fifth and finally, for researchers who adopt this approach, the harshest criticism from the postmetaphysical approach is the charge of “value supremacy”—that they view their own society’s value system as superior or universal and study other societies by measuring the latter’s “deficiencies” in values and practices. In China Legal Studies specifically, it is the charge of “legal orientalism”—that they create essentialist and otherizing dichotomies between the West and China, such as Western lawfulness vs. Chinese lawlessness, Western democracy vs. Chinese despotism/dictatorship, Western law vs. Chinese morality, etc.
The Postmetaphysical Approach
The postmetaphysical approach can also be understood as having five characteristics, many of which stand as direct counterpoints to the views endorsed by the metaphysical approach. First, this approach presupposes that we live in a world marked by political and epistemic pluralism. There is no unified way of seeing, knowing, and reasoning; only socio-historically situated ways of seeing, knowing, and reasoning. One can attempt to seek moral guidance only by inserting oneself in a socio-historical discourse that also includes the voices of others. Moral reflection is not a monolog; it is an iterative and intersubjective dialog.
Second, given this picture of the world, this approach views researchers as discursively situated. Here I borrow from cultural theorist Stuart Hall’s insightful use of Michel Foucault’s discourse theory. Per Hall, discourses create specific types of subjects, modes of reasoning, and positions. All researchers are creatures of their own cultural discourse; their subjectivity is shaped by, and their research subject to, that discourse’s forms of knowledge and knowing. When the research concerns actors (China legal studies certainly does), an actor must occupy a position that is pre-created and pre-recognized by the researcher’s discourse in order to be seen by the researcher, and actors who occupy (or when they occupy) positions outside those predetermined by the researcher’s discourse will not be seen at all.
Third, because societies are marked by political and epistemic pluralism, truth and knowledge are socio-historically contingent interpretations and arguments. They are plural, criticizable, and at once contested and contesting for epistemic power. Because discourses are always situated in power relations, all productions of knowledge reflect and reproduce power relations and asymmetries. They are corrupted rather than innocent. Comparative legal scholarship as a field of knowledge production is inherently an exercise of using the discursive power of the researcher’s own legal culture to construct truth and justice about other peoples and governments.
That said, the postmetaphysical approach is not cynicism all the way down! Instead, there is an emphasis on persuasion, discursive integrity, and law’s discursive power. Here I borrow from Jürgen Habermas’s discourse ethics and Nancy Fraser’s equality-based critique of discourse ethics. A postmetaphysical approach views law not only as a regulatory power, but more importantly, as a discursive power that constructs a regime of truth and justice about facts, cause and effect, and what is right/wrong, good/bad. All legal cultures are regimes of truth and justice, and all sorts of actors (including legal scholars) use, and are bound by, law’s discursive power.
On a practical level, being a China legal scholar means being a student of Chinese law who seeks to construct the most persuasive interpretation of actors and affairs in China. The researcher must distinguish between moral norms, which are obligations one owes to fellow human beings to do what is right and are valid equally and universally to all individuals across time and space, and ethical values, which are goods and ways of life that are specific to a particular political community (what is good for us). Conflating ethical values with moral norms can degenerate a comparative study into “projecting our own perspective onto the place where another should be” and into stereotyping and othering. Lastly, every step along the way, the researcher must remaine aware that different actors in a discursive community (e.g., China, or a legal academia) possess different amounts of “means of interpretation and communication,” and hence not all have a voice and not all voices are equal in the discourse.
Fifth and finally, for researchers who adopt this approach, the harshest criticism from the metaphysical approach is the charge of “value promiscuity”—that by refusing to judge other societies from certain normative vantage points they effectively legitimize undesirable values and practices of other societies. In China Legal Studies specifically, it is the charge of “China apologia”—that they beautify the Chinese government’s bad actions, such as dictatorship, human rights violations, repression of protesters and dissidents, etc.
Which Way for LPE?
While the metaphysical approach may work well for researching issues within the same discursive community, I think the postmetaphysical approach that strategically adopts metaphysical methodologies is more appropriate for comparative China studies. Although the metaphysical approach recognizes cross-society pluralism, it overestimates the hermeneutic autonomy of the well-trained, conscientious researcher and their ability to dis-embed from their legal culture and see another culture with a fresh mind. The postmetaphysical approach is predicated on political and epistemic pluralism, the researcher’s discursive parochialism, and a skepticism toward grand narratives, all of which are befitting for a world of intensifying value clashes and U.S.-China othering. Once the aspiration for grand theory is jettisoned, methodologies of the metaphysical approach can become useful tools for examining concrete issues.
As a China legal scholar, I strive to be a postmetaphysician in principle and a situational metaphysician in tactics. For example, in my forthcoming Property and Prosperity: A Demythifying Story, I adopt doctrinal and sociolegal analysis to examine the interplay between the regulatory and discursive powers of formal property law in post-1980 China. In the 1980s, Chinese property law was both a discursive regime that emphasized equity, pragmatism, and socialism, and a regulatory regime that was more friendly to ordinary urban residents living in old housing and rural residents living on the outskirts of expanding cities than to industrialists and foreign investors.
Post-Tiananmen, the need to stem a conservative retrenchment and withdrawal of foreign investments prompted the Chinese state to change property law’s discursive and regulatory regimes and adopt aspects of the neoclassical (neoliberal) Washington Consensus. The new discursive regime emphasized GDP growth at the expense of equity, and the corresponding regulatory regime became friendly to industrialists and investors but hostile to ordinary people whose homes and livelihoods stood in the way of industrialization and urban expansion. These changes brought rapid but unequal growth, fraught with conflict and actual as well as symbolic violence. By the mid-2000s, the GDP-maximalist discursive and regulatory regimes were no longer legitimate or sustainable. To counter the crisis, the Chinese state began building a new discursive regime that emphasized harmonious development, rural revitalization, and equity; and, beginning in 2011, a new regulatory regime that gives ordinary people more development benefits and rural communities more power in conducting development themselves.
The lesson from this story is that in China, just like in a liberal electoral democracy, law’s regulatory and discursive powers depend on each other for support; a law whose regulation produces unjust results loses discursive power and a law that loses discursive power can no longer regulate. To understand what this reified concept of “China” does or will do, comparative legal scholars must understand the discursive side of the law and legal change in China for Chinese actors—central and local governments for sure, but also scholars, judges, bureaucrats, beneficiaries, victims, activists, and members of the public who together embody and shape the social life of law in China.
As mentioned at the outset, I think scholars within the LPE movement should strive to be postmetaphysicians in principle and situational metaphysicians in tactics when studying China. The LPE movement distinguishes itself from other movements by highlighting and investigating the mutual constitution of law, politics, and the economy within a historical community. This broad and holistic perspective may make it easier for China researchers to avoid some of the hermeneutic strictures of the dominant liberal discourse and see a diverse cast of actors using, reinterpreting, and changing a thick web of regulatory and discursive regimes and together unfolding the social life of law in China.
A critical legal left internationalism must begin with a recognition of our own moral incompletion and a genuine effort to see and hear the other. Only by doing so will we strive to produce more humble and rigorous research, critically reflect on the paradigms of our own legal culture, and make our epistemic fishbowl larger and more complex.
