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China ready to develop legal anthropology

Author  :  XIONG HAO     Source  :    Chinese Social Sciences Today     2021-06-10

In the 21st century, China has gradually established an academic skeleton and basic propositions for its field of legal anthropology, which has fueled China’s rule of law and the study of law. Legal anthropology is highly significant academically. To some extent, legal studies and anthropology both represent two kinds of confrontational yet complementary mental models, the tension between which unveils a buried treasure worthy of unearthing.

Differences

The word “law” also carries the meaning of rules, or patterns. Law involves abstract reasoning and logic, almost akin to the perspective of seeing the ground from above.

Based on Max Weber’s (1864–1920) propositions, a scientific and constant legal system should be seamless, so that its rules can be applied to all scenarios however society and people’s everyday lives change. Any human behavior should find a place in this precise and complex system, where actions can be tagged as “legal” or “illegal.” Legal norms are like a conceptual world high above us, offering a general guide for human society.

Unlike jurisprudence, anthropology represents personal experiences, relevant interests, presence, and authentic strength of life—in other words, down-to-earth honesty. In modern anthropological fieldwork, the stake of hovering above society and looking down at social phenomena has almost been abandoned. With a more humble attitude, anthropologists with their feet on the ground oppose the idea of “taking people as samples” as a starting point for modern social science research methods. They firmly stand in the corner of humanism, and try to hold on to meaning and observe worldly phenomena.

As Clifford Geertz put it, anthropology is also concerned with mountains, rivers, earth, and beloved human beings. However, anthropologists characteristically approach broad interpretations and abstract analyses by paying detailed attention to exceedingly extended acquaintances with extremely small matters. Anthropologists’ care for the minutiae of life, consideration of daily routines, curiosity about exotic scenery, and respect for situational knowledge have tempered the complexity of their views on people and life. Through this approach, they have reached the varied levels, veins, and textures of the real world, thus providing us with carriers for meaning, clarified materials, reflective conditions, and even critical analysis to understand many other abstract concepts, such as legitimacy, modernity, integration, conflict, charisma, and structure. Anthropology has lit the sky of theory by constantly offering alternative imagined possibilities.

Legal Anthropology

Understanding the differences in value orientation between anthropology and law enables us to understand the significance of legal anthropology in China. Since the dawn of the new century, China’s jurisprudence has begun to systematically reconsider its previous overly urban-centric and normative assumptions, which may have overlooked real social needs beyond first-tier cities, and had relatively blind value orientations to the complex processes of legal operation. The institutional structures and knowledge systems of modern jurisprudence in China are largely imported from the West. As a transplantable arrangement of order, jurisdiction cannot be realized only by grafting text norms into China’s legislative process. Law is not just a matter of norms; in fact it is not even a matter of norms, but rather an order of life. Western experiences neglect Chinese cultural dimensions, contextual meanings and local knowledge of rules, and operate under the assumption that it is not necessary to construct and nurture the social roots of the modern legal system’s deep engagement with reality in China. This is a significant problem in China’s legal “dogmatism.”

Fortunately, as China’s cultural consciousness becomes clearer and interdisciplinary research in jurisprudence expands, China builds its rule of law by absorbing the strengths of the world’s best institutional civilization while valuing the Chinese experience. Legal scholars who have emerged from the perspective of overseeing society are standing on the real earth again. In their research methodologies, they increasingly emphasize the value of presence, the perspective of insiders, and a gentle concern for communities and distant areas. This “down-to-earth” research approach and value proposition, with the power of legal anthropology, has accumulated local wisdom and experiences for understanding China’s complexity.

If we extend our vision to a global scale, Chinese anthropologists have always dreamed of international fieldwork. According to Gao Bingzhong, a professor from the Institute of Sociology and Anthropology at Peking University, China’s anthropological predecessors certainly knew that the field covered the whole world, rather than merely their own country, but anthropology’s introverted perspective and activity space has been a longstanding disadvantage in the Chinese anthropological community. Multiple historical conditions constrain their choices.

First, China’s national strength, which includes the capacity to fund projects, and national conditions have sometimes prevented the government and non-governmental organizations from investing resources in costly anthropology projects that do not immediately address pressing domestic issues, such as material production related to food and clothing.

Second, social pressure and China’s collective consciousness at its stage of modern development does not support scholars who seek to conduct research in foreign societies. China’s modernization began with, and has long been accompanied by, loss of life and the “national humiliation” due to foreign invasions, and the nation’s psychological relationship with the Western-dominated outside world is relatively sensitive. When international research does not take place effectively, one of the real consequences is, for example, a shallow understanding of the countries along the route of the Belt and Road Initiative.

“Many of the recent legal works in this area are cranked out hastily, providing only superficial introductions to the relevant national legal systems, while ignoring the historical background, cultural implications, and social context of these legal rules and institutions. These works are academically worthless and practically misleading,” said Gao Hongjun, a professor from the School of Law at Tsinghua University.

Advancement

While the situation today has not changed completely, promising advancements are taking place. In theoretical constructs, transplanting institutional norms from the West is no longer the only discourse. With new paradigms that reflect upon the domination of Western discourse, the ontological dimension of China’s experience has gradually revealed its independent significance—the acceptance of Western norms by a large and long-established Eastern country is no longer inherently justified. China’s subjective position is becoming increasingly prominent in this era, which inevitably shapes China’s self-expectations and theoretical directions in the new landscape. This instructs us not to rush into replication, but to understand foreign rule of law in a more patient, relaxed, and specific manner. This makes it increasingly possible for legal anthropology to embrace international fieldwork.

In reality, contemporary China’s historical mission is to further explore and understand the world. It has become a new theoretical need to dialectically assess and analyze international legal experience, and obtain an embedded understanding of them. Therefore, if we pay attention to the reality of national development, whether as a major flag bearer of today’s international trade liberalization, or as a supporter of the dual-circulation strategy globally, the theory and awareness of legal anthropology and the relatively mature field process approach we have developed can provide a more complete academic background for constructing a solid international field, a concrete understanding of foreign laws, and deep knowledge of the real and detailed legal processes at work in other jurisdictions.

In this sense, the field of international law (empowered by legal anthropology) can help us overcome the extreme thinking of worship or contempt and truly gain insight into foreign laws as existential structures, an order of life, and a system of meaning in terms of “Law in Action.” This will enable Chinese jurisprudence to provide a more solid global genealogy and country-specific reference for national rule of law, and may also provide more concrete and genuine intellectual support for the global layout of national development in the contemporary era.

 

Xiong Hao is from the Law School at Fudan University.

 

 

 

Editor: Yu Hui

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