Legal Systems Inside Out: American Legal Exceptionalism and China's Dream of Legal Cosmopolitanism

Spring 2023

Matthew S. Erie, University of Pennsylvania Journal of International Law, 44(3) 2023 731

Paper available here. 

Abstract

What is the relationship between a legal systems’ foreign-facing elements and its domestic ones? Contrary to “dualistic” theories (“dualism,” “legal dualism,” the “dual state,” etc.) which suggest that a single legal system may encompass qualitatively different regimes regarding foreign and domestic legal questions, this Article takes the view that gaps between the foreign-facing and domestic aspects of a legal system may threaten that system’s legitimacy and, in turn, its sustainability. Compatibility between the foreign/external and domestic/internal aspects of a legal system could be measured across a range of categories including provision of justice, fairness, and efficiency. This Article focuses on the recognition of difference. As used in this Article, difference means both the nature and source of law (e.g., foreign law, non-state law, religious law, customary law, etc.) and of legal authorities (i.e., in terms of race, ethnicity, gender, and nationality). In essence, the question posed is whether a legal system can regard difference disparately between its foreign-facing and domestic aspects. This Article addresses this question through a comparison between the People’s Republic of China (PRC) and the United States, the two most powerful economies in the world and which are locked in a trade-cum-tech war.

The question of the recognition of difference has practical importance. How we characterize and analyze the PRC legal system is particularly important from the vantage of the United States as how the PRC domestic legal system may shape its relationship to the global economy and trade partners in the Global South, in particular, is both generally poorly understood and may affect U.S. economic and foreign policy. Misunderstanding results in a number of negative outcomes across a range of important issues, including suboptimal competition with China on developmental assistance to low-income and middle-income states as well as difficulties in U.S.-China coordination on global problems (e.g., poverty, climate change, and health), with competition and coordination not being mutually exclusive. To address this gap, this Article is one of the first to analyze China’s “foreign-related ‘rule of law’” (shewai fazhi) reforms at the intersection of private international law and foreign relations law which purport to shape the future of the relationship between China’s domestic legal system and non-domestic law, exposing China to greater degrees of difference.

The Article is comprised of two sets of comparisons: one is within and the other is between legal systems—those of the U.S. and China. It finds that in the U.S. case, there is, broadly, convergence between the legal system’s privileging of U.S. law extraterritorially and the status of foreign law domestically. However, the Chinese case is marked by growing divergence between its internal and external-facing approaches to foreign law. Whereas the U.S. has historically embraced versions of legal exceptionalism (both externally and internally), China has introduced reforms which orient it toward a relationship with external law and legal authorities that I call legal cosmopolitanism, the selective integration of foreign laws and their authorities into Chinese law and, conversely, the worlding of Chinese law. Legal cosmopolitanism is predicated on China’s centrality in international trade and investment, and promoted by the Chinese Communist Party (CCP) and Chinese academics who seek to position the PRC as a leader of developing countries, as a corrective to U.S. racial capitalism. However, China faces a number of obstacles in building legal cosmopolitanism, among those, its domestic law approaches toward difference may be trending in the opposite direction, widening the gap between the foreign-facing and internal aspects of the legal system. As a result, legal cosmopolitanism remains aspirational.

Inspired by legal realism, decolonization theory, and Critical Race Theory, and informed by a comparative outlook, the broad claim of this Article is that the trajectory of externally-facing legal reform encounters difficulty escaping the corresponding features of domestic law. As a general observation, due to both domestic pressures and embeddedness in the international system, legal systems develop towards normative compatibility between that system’s internal and external-facing rules and authorities. Whereas the PRC is purporting to build a “foreign-related ‘rule of law’” that is ecumenical, pluri-legal, and hyper-diverse, for the most part, its domestic law remains strikingly unitary, homogenous, and “state-led.” Furthermore, recent strains of nationalism, protectionism, and even xenophobia throughout the world but especially in China, have further closed off the economy and society. This paradoxical state of affairs of simultaneous opening and closure has real-world implications for China’s goal of becoming a leader of the developing world, which entails building global law. From the U.S. perspective, policy-makers need to grasp this picture for not only improving its relationship with China but also with the Global South.