The relationship between China and the international economic legal order should be considered from all angles and perspectives. One perspective too often ignored is through legal culture. To the extent that elements of China’s legal culture is close to or similar to the legal cultures present in the international legal order then one would expect a more harmonious relationship. To the extent the elements of a China’s legal culture diverge from or are opposed to the dominant legal cultures within the international legal order one might then expect those differences to lead to difficulties. An understanding of China’s legal cultural relationship with the international economic legal order is thus critical.

Legal culture consists of those characteristics present in a legal system that reflects its history, traditions, outlooks and approaches. Those characteristics may be reflected in the actions or behaviours of the actors, institutions, and even of the substantive law of the system. Legal culture exists not because of regulation or editct, but as a result of the collective response and actions of those participants in the legal system. As a result, legal culture can vary dramatically from country to country, even when the countries share common legal traditions. Critically, legal culture is also to be found within international institutions and fields—for they too are legal systems. Identifying the different legal cultural characteristics of the relevant systems and then understanding the interactions between the different legal cultures helps us understand the nature of the relationships between those systems.

The value of this approach can easily be shown with respect to China, simply by focusing just on China’s legal cultural relationship with the WTO. It is possible to quickly identify a few legal cultural disconnects and commonalities that can immediately help us begin to understand the otherwise apparently complex trade relationships between China and the WTO and between China and other WTO member states. 

Chinese legal culture is, like so much about China, vast. It spans thousands of years of history and presently exists and is reflected in the minds and actions of over a billion people.  Adding to the complexity of this legal cultural analysis, is the fact that Chinese legal culture has both strong traditional and modern components.  Furthermore, many of its modern components remain in a state of flux as the system rapidly develops. Many of those modern legal cultural characteristics are also related to imports of foreign laws and approaches, though they are modified, in an ongoing process, when imported.  Furthermore, today’s Chinese legal culture is a mix of many different and often contradictory modern and ancient sources that exist side-by-side. Those sources include Confucianism, Legalism, Marxism, Soviet Socialism, Maoism, Rationalism, and significant legal cultural characteristics imported from the German and Japanese strands of the Civilian legal tradition, and most recently imports from the Anglo-American systems. Each of those component is alive and well in China, albeit existing to different degrees in different legal fields and institutions. But, each has a role to play in China’s interactions with external systems and institutions—such as the WTO. A few specific examples from these different sources of Chinese legal culture can show the insights that are possible when legal culture is taken into account.

The two main sources of traditional Chinese legal culture are Confucianism and Legalism. While many insights can be gleaned from consideration of these sources, here only one example from each is presented.  Confucianism, put simply, is legal “regulation” based on virtue, benevolence, social rightness and morality, with harmony as a central goal.  The question is then how this might or might not fit with the WTO. To the extent the WTO is viewed as a political or economic organization and not one with overriding moral and virtuous objectives, and to the extent economics and politics is often viewed as at best being normatively neutral, then there may be a fundamental, albeit subconscious, Chinese legal cultural unease with and about the WTO.  On the other side of traditional Chinese legal culture, however, were the Legalists who believed that humans were intrinsically “evil” and that law was necessary to control that evil.  The legalists were thus associated with strict application of rules with correspondingly severe punishment for infractions of those rules.  Legalism’s employment of strict and harsh punishment does not seem to find much congruence with the WTO, even when one takes into account the WTO’s much lauded dispute settlement system.  To the extent legalism exists within modern Chinese culture, one would find that the WTO with its weak prospective “punishment” system would stand in sharp contrast, perhaps engendering a cultural disconnect between Chinese legal culture and the WTO.

A significant, but quite different, component of the Chinese legal culture is the result of the early twentieth century importation from but one strand of Western law during the twentieth century. For the most part, that law was derived from the German branch of the continental system, directly and via importation from Japan. To the extent the WTO includes civilian characteristics, this may be an area where Chinese legal culture fits well with those parts of the WTO that remain civilian in character. But, the WTO also includes aspects that are common law in style and hence with which Chinese legal culture and the WTO may experience a cultural disconnect. 

In contrast, towards the end of the twentieth century, from Deng Xiaoping onwards, a strong pragmatic character to the law was introduced into the legal culture. The urgency of the need to enact laws to ensure quick economic development after the Mao period led to an ad hoc and pragmatic approach to law making. There was even an acceptance that the initial laws would be rough and an expectation that with experience they would be changed to make necessary improvements.  Adding to this shift to pragmatism was the reduction, if not elimination, of ideology as a basis for legal reform.  As Deng noted “it does not matter whether the cat is black or white, as long as it catches mice”  That pragmatism fits well with the WTO, an organization that easily may be described as pragmatic.  The WTO agreements were, after all, a result of complex negotiations, with give-and-take and compromise. Like the early Deng period, in these early years of the WTO, trial and error has also been one of the methods for WTO development.  True, there are fundamental principles and some code-like specifics within the WTO, but with so much left ambiguous and for future generations, one can easily see a style that may fit well with the pragmatism we may see within modern Chinese legal culture.

The last, but critical component of Chinese legal culture briefly discussed here is a more “popular” legal culture—not found in the formal law—the one practiced by the people and not the officials. That legal culture relies more heavily on relations, “guanxi”, in the operation and resolution of many matters that would otherwise have fallen into the more formal legal culture.  The idea of an informal system residing alongside the formal law may fit particularly well with the WTO, where the formal dispute settlement, the Secretariat and the multilateral negotiations exists alongside the traditional diplomatic and bilateral negotiations, the proliferating bilateral agreements, and the political mechanisms for resolving and developing legal issues. Indeed, in both cases, in China and in the WTO, that informal legal culture may constitute the larger and more dynamic of the two legal cultures in each system.

Just as the historical components of Chinese legal culture were relevant to understanding the relationship between China and the WTO, so too the modern components of Chinese legal culture are clearly relevant. Unfortunately, the vastness of the subject denies the brief consideration possible here beyond anything more than the role of showing the relevance of the greater idea—that a deep understanding of the interaction between China and the WTO can be significantly enhanced through considerations of legal culture.