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ADVERSARIAL LEGALISM AS CHINA'S PRIMARY EXTERNAL MODEL OF LEGALITY: WHAT DOES IT MEAN FOR CHINA'S FUTURE?

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Abstract

With the rapid industrialization and globalization of the People's Republic of China (the "PRC" or "China") now taking place, Chinese law and society are changing quickly. Today we witness much dialogue, both within China and in the rest of the world, about China's looking to other countries for answers to the problems it faces. Chinese leaders look to industrialized countries with longstanding legal institutions, many in the West, for legal models in reforming or modernizing their own judicial system. Part of looking to the West seems to be a consequent shift toward adversarial legalism. Young, bright Chinese lawyers who are the future reformers of the Chinese system currently flock to western countries, especially to the United States, to study the adversarial legalism that is so central to western systems and to bring back their best points to China. 2 To date, many of the laws of the United States have evidently been accepted in China as the best example to follow. 3 The significance of China's looking to adversarial legalism as its primary external model of legality is that a legal system developed in one context would be imposed on a different society, potentially with harmful results. On one hand, Chinese philosophies of law have deep roots going back thousands of years, including various schools of thought, some of which have parallels with Western legal philosophies. On the other hand, today's China is a very young and new country whose political developments have varied enormously from Western industrialized nations and whose legal and political workings are based on fundamentally different principles regarding the role of law in society. Even if done slowly over time, the implications of more adversarial legal practice in China could mean a great deal of confusion and, in fundamental respects, inappropriate dispute systems design: cutting back on mediation that is traditionally prevalent in China; insufficient protections of judicial review; a lack of individual rights to balance out collective interests, and others. As for the international significance of Western-style legal reforms, looking to adversarial legalism has implications for how China is viewed by the rest of the world: in the World Trade Organization and in the United Nations as well as by the United States, by multi-national corporations and by other influential actors on the world stage. Perhaps most importantly, however, China's looking to western societies such as the 1 J.D. 2005, Harvard Law School. The author thanks Prof. William Alford for guidance with background readings and George N. Tompkins Jr., Ryuji Mukae, Rebecca Culley and Timothy Webster for comments on earlier drafts. 2 Of course, various other factors also influence the choice of Chinese students to attend American law schools, including a desire to work in parts of the world other than China.

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One way in which this has been manifested is in regard to transparency. See Cao Jianming, WTO and the Rule of Law in China, 16 TEMP. INT'L & COMP
One way in which this has been manifested is in regard to transparency. See Cao Jianming, WTO and the Rule of Law in China, 16 TEMP. INT'L & COMP. L.J. 379, 387-8 (2002).
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