Tom Ginsburg and Mike Dowdle have invited me to respond to Mike’s critique last September in this space of a comment of mine, and I both thank them for the opportunity and apologize for taking so long. In a previous life I was probably a contractor.
Mike confessed himself depressed by a reported statement of mine that the constitution was “the least important document in the Chinese legal system.” While I don’t think I’ve made that statement in print or ever really fleshed it out, I freely admit to saying things like it on many occasions. But I’m not sure what has driven Mike to reach for the Prozac. He reads my statement pretty much as I meant it, and even agrees with it.
Mike understands me to mean that “insofar as China’s positive legal corpus is concerned, the constitution is much less likely to be formally cited than are (other) positive legal instruments.” Actually, I’m not really worried about whether the constitution gets cited or not, and my statement is not court-centric; what I’m talking about is whether the constitution is a meaningful source of rules that are supposed to be followed in the same general way that we understand, say, National People’s Congress legislation to be a source of such rules. But in any case, Mike says that he agrees with his reading of me.
So what is the problem? It seems that Mike does not like the way my statement implicitly defines “legal system.” As he says, “the idea of a ‘legal system’ can encompass far more than its juridically-authoritative texts[.]” Certainly it can. But must it always? If we can define “legal system” broadly for some purposes, can we never define it narrowly for others? Was my purpose in my statement less legitimate than Mike’s in his? To take an American example, the Declaration of Independence and the Federalist Papers can be said in some sense to be part of the American legal system and to have constitutional importance, but it does not follow that it no legitimate purpose is ever served, or knowledge gained, by distinguishing them from the document called the United States constitution.
Mike is too sophisticated, I am sure, to imagine that words can have only a single meaning that must apply at all times and in all contexts. And even if he did believe that, he is too modest, I am also sure, to imagine that he alone has a grasp of that single correct definition. The best test of a definition is whether it is useful. Does it, for example, allow us to say anything that is not obviously or tautologically true? I believe the limited notion of “legal system” contained in my statement does so. For it is possible to imagine constitutions in a legal system so defined that are not the least important document, and therefore, my claim about China’s constitution is meaningful and tells us something that is not obviously true and that indeed might be false (although Mike does not assert this). It is therefore, I think, a statement worth making, and I am at a bit of a loss as to how to understand the practical implications of Mike’s critique. He seems to agree that my statement is accurate, as far as it goes, but fears it will be misunderstood. Does that mean I and others simply shouldn’t make it? Does he mean that the assertion, while true, is so minor that its prejudicial effect (to use the language of evidence law) outweighs its probative value? If my observation is both accurate and worth making, how am I supposed to make it?
I should add that Mike misreads me in saying that my statement is about “deficiencies”; it is his view, not mine, that the failure of the rules of the document labeled “Xianfa” to be followed is ipso facto a deficiency. I think he attributes this view to me because we probably have a real disagreement on a very fundamental point, which is whether China is quite different from the US or pretty much the same. It would be silly to maintain that everything about China is absolutely unique and sui generis, and I don’t maintain it. At the same time, however, it would be an astonishing coincidence if a country with China’s history were to end up with a legal and political system that had a lot in common with that of the US—or to use Mike’s words, that its “constitutional experience” would be “of a kind shared by American constitutional understandings.” To say that different societies are different is sometimes tarred as an ethnocentric exoticizing of the Other; but it seems to me that saying they are the same commits the same sin: imagining that everyone is just like Us under the skin, and that cultural differences amount to little more than different ways of circular dancing and the wearing of funny hats. We ought to be methodologically open to the possibility that things in some places really are different.
Finally, in case there is any doubt on the matter, I reject the idea that cultures (political, legal, or otherwise) are unchanging and eternal—in fact, I don’t even find the term very helpful in most contexts—and thus I certainly do not want to be read as Mike fears I will be read: that China can never have constitutionalism as he understands it. Nor does it mean that any of the phenomena he discusses aren’t worth looking at; of course they are. But neither of these conclusions follows from my statement. If some people find them there, there will be plenty of time for Mike to get depressed then.