——Composed in celebration of Mr Jiang Ping's 90th birthday
Author Ji Weidong
Director of the China Institute for Socio-Legal Studies
Confucius said, "A great virtue must be accompanied by a long life", which can be applied to Mr Jiang Ping's 90th birthday celebration. I sincerely pray that Mr Jiang will always be in good health and live beyond 100 years old, and that he will witness the success of the rule of law in the world! In my 2003 article, "The Law Does Not Apply to Noblesse Oblige, and Only Then Does It Become a Public Instrument - Reflections on the Road to Constitutional Rule and Mr Jiang Ping's Character", I have highlighted his outstanding character of calling upon the world to be virtuous, especially his high moral character of bowing down only to the truth. Today, I would like to describe the side of him as a thinker who pursued studies to cultivate his moral character, and to provide some historical materials of his meeting friends with literature in Japan, which I have personally seen and heard.
Our face-to-face academic encounter began at the 31st Academic Conference of the Research Committee on Sociology of Law of the International Sociologic-al Association held at the University of Tokyo in 1995. Some people may wonder how Mr Jiang Ping, who is a great expert in civil and commercial law and Roman law, crossed over to the sociology of law all of a sudden. In fact, the reason is very simple. As we all know, the object of civil and commercial law in the field of civil society and the order of transactions, to the basic principle of autonomy. This kind of disciplinary attributes and sociology of law have a natural sense of affinity and blood relationship, and Mr Jiang Ping is particularly concerned about the interaction between law and society and the comparative analysis of the system, so it is not surprising that he pays close attention to and cooperates closely with the research of sociology of law, and the reason why the sociology of international law attaches great importance to him is even more self-evident.
I was still teaching at Kobe University in Japan at the time and was selected as a board member of the Research Committee on Sociology of Law of the International Sociologic-al Association (RCSL) in 1994, just in time to take part in the preparations for that Tokyo congress. I was involved in discussing and deciding on the selection of keynote speakers, featured speakers, and breakout presenters. The keynote speakers for the conference were selected based on the criteria of academic achievement, social influence, ability to express themselves in the international language, and state of health, and they were all world-renowned leaders in their fields. Mr Jiang Ping, who has long been engaged in the research and teaching of Roman law and Western civil and commercial law, coupled with his important position in legislation, has many academic friends and followers in Europe and the United States, and there was no doubt that he would be elected as one of the four keynote speakers of the plenary session. Nonetheless, I was heartened by the announcement of the voting results.
After the opening ceremony, Mr Jiang Ping delivered a brilliant speech entitled "State and Society - Legal Concepts and Changes in Today's China", in which he examined the process and mechanism of social power emancipation from state power in six aspects one by one, and emphasized the significance of defending the society and restoring the social orientation. As far as I know, this is the first time that Chinese scholars as keynote speakers are on the podium of the Academic Conference of the Research Committee on Sociology of Law of the International Sociologic-al Association, which naturally attracts attention from all sides. "Professor P. Selznick, the flag-bearer of the Berkeley School, and Professor L. M. Friedman, a representative scholar of comparative sociology of law, both spoke highly of the content and significance of Mr Jiang's speech.
By the way, thanks to the generous support of the Ford Foundation for international travel and accommodation expenses, an unprecedented line-up of twelve Chinese scholars, including Jin Yaoji, Zhang Wenxian, Liu Han, Liang Zhiping, He Weifang, Gao Hongjun, Xia Yong, Wang Chenguang, and Li dun, in addition to Mr Jiang Ping, attended the Tokyo conference, which was once told as a good story. In addition, thanks to the Tokyo conference, Professor Kahei Rokumoto, one of Japan's most renowned sociologists of law, came to Beijing in 2001 to interview Mr Jiang Ping and invited me to assist him. Two years later, Kobe University, where I worked, was awarded a large grant from the MEXT 21st Century Center of Excellence (COE), focusing on the dynamics of law in a market-oriented society, and I became the head of the basic research department.
On 6 December 2003, the COE project organized a large-scale, cross-sectoral international symposium at the Kobe International Hall, inviting as keynote speakers renowned scholars in the relevant fields, such as the legal economist Oliver Williamson, the legal anthropologist Anneliese Riles, etc., as well as the leading figures of the Japanese civil and commercial law community, such as Eiichi Hoshino, Yoshitaro Kitagawa, and so on. The guest of honour from China was Mr Jiang Ping, accompanied by his wife. His speech at the International Symposium was entitled "Economic Marketisation and Legal Globalization, Modernization and Localization". Against the background of China's recent accession to the WTO and the hot topic of global law in the academic world, Mr Jiang emphasized:
The basic national policy of opening up to the outside world was put forward at the beginning of China's reform, which was the beginning of China's gradual integration into the world economy until its formal accession to the WTO last year, when China's participation in the process of globalization of the world economy was significantly accelerated. In order to meet the needs of opening up to the outside world, China has acceded to many international conventions. China's accession to the WTO has not only raised the level of globalization of WTO rules, but also raised the level of globalization of China's foreign-related economic laws and even other domestic laws. In order to fulfil the commitments it made upon accession to the WTO, China has taken legislative action to amend many relevant laws, including those on foreign-invested enterprises and intellectual property rights. However, this is only one aspect of China's legal globalization, which does not stop at fulfilling its international treaty obligations. China has taken the initiative to draw on the contents of relevant international treaties when formulating civil and commercial laws. For example, in drafting its new Contract Law, China has fully borrowed and transplanted the relevant provisions of the Principles of International Commercial Contracts and the Convention on Contracts for the International Sale of Goods. In addition, although China is traditionally a civil law country, it does not exclude the common law system from its legislation on civil and commercial laws, most notably the introduction of the British and American trust system. The new contract law has also absorbed such elements of Anglo-American contract law as no-fault liability, anticipatorybreach, and the rule of reasonable foresight. In the process of drafting the civil code, scholars and legislators also started a heated and in-depth debate on how to draw on the common law in the civil code. The world trend of integrating common law and civil law has been fully reflected in China's civil and commercial legislation. Regardless of one's position on the globalization of law, one thing should be certain: Chinese legislation is unfolding under the broad perspective of globalization. And there is no sign or reason to suggest that this phenomenon will change substantially, whether in 2003 or in the longer term.
He went on to express the following insights:
Nowadays, some people in the legal profession have also proposed the localization of law, emphasizing the social soil of the law in their own countries. Some scholars from all over the world believe that the law itself cannot be transplanted, because the law of any country is rooted in its own soil. However, judging from the situation in our country over the years, I think the possibility of transplanting laws is far greater than its impossibility, at least in the context of market economy, at least in the civil and commercial law that I am engaged in. There is too much emphasis on indigeneity within this field, and I am not in favour of it. Because the market is a common soil, if today we are engaged in a planned economy, I can say that my soil is not the same as yours, you are engaged in a market economy, I am engaged in a planned economy, then how can your things be transplanted to my soil? Today, I am also engaged in market economy, you are also engaged in market economy, we have a common language, we have a common soil, so why can't we have common rules? In this sense, the transplantation of its laws should be feasible, and it can even be said to be inevitable. When we formulated the new contract law, we made reference to a number of internationally accepted rules. Some new systems that did not exist in the past have been established, and the impact has been positive. ...... Transplantation and localization are not contradictory. It does not have to be a local resource to be called localization, what is transplanted can also be localized, or must be localized in order to really take root and thrive. It is not difficult to transplant the legal system of trust, which is practiced in some civil law countries. Japan promulgated the trust law as early as the 1920s, but when the trust system based on the common law is transplanted to a country without a common law background and foundation, there is a process of localization of legislation. This is a very arduous process, which requires both an in-depth understanding of the legal system and a deep familiarity with the social and economic conditions of the transplanting and transplanted countries. The trust law enacted in China two years ago also faces this problem, which is a process of continuous improvement. Taking the limited partnership mentioned earlier as an example, it is one thing to transplant or not to transplant the limited partnership system, and it is another thing to improve the limited partnership system in the legislation. The former is the question of whether there is a need for transplantation; the latter is the question of how to localize the system after transplantation. After joining the WTO, we soon recognized the system of "judicial review", only to be "localized" by the judicial interpretation of the Supreme People's Court. Of course, transplantation is not the same as wholesale copying. The law is always for the social life of the service, and each country has its own national conditions, and therefore need to adapt to the national conditions of the legal system.
These eloquent remarks won a warm round of applause from the floor.
In addition to participating in the International Symposium, Mr. Jiang Ping gave a lecture on "Marketisation and Civil Code Codification in China" to students and faculty members of the Faculty of Law, Faculty of Economics, and Faculty of Business at the Rokkodai Campus of Kobe University on 8 December. Professor Negishi Akira, Chairman of the Board of Directors of the Japan Society of Economic Law and General Director of the COE Programme at Kobe University, presided over the lecture and delivered a speech. As Japan has begun preparations for a large-scale revision of its law of obligations, the direction of China's legislation has become one of the focuses of attention in the academic community, in addition to the civil law innovation in the Netherlands and the civil law harmonization movement in the European Union. During the discussion, many showed keen interest in the evolution of phenomena such as long-term contracts and relational contracts in the process of marketisation and their reflection in the codification of the civil code.
A year later, Mr. Yoshitaro Kitagawa, then deputy director of the Institute of Advanced Studies, launched a comparative law research project entitled “The Image of Civil Law in the 21st Century.” The focus of the project was to study the drafting of the Chinese Civil Code from a comparative law perspective. I was involved in the project’s establishment and organization as a member of the Institute’s planning committee.
The first symposium of the project, entitled “Chinese Civil Code Legislation: 21st Century Civil Law Models,” was held from August 26 to 28, 2005. Five of China’s most distinguished civil law experts were invited to attend (unfortunately, Professor Liang Huixing was unable to attend due to prior commitments, but she submitted a written paper). The Chinese experts were assigned as follows:
Mr. Jiang Ping: overall review
Professor Cui Jianyuan: property law and contract law
Professor Wang Liming: tort law and personality rights law
Professor Fang Shaokun: property law and personality rights law
Professor Wang Yi: contract law and tort law
In addition to Mr. Kitagawa and myself, the major Japanese scholars who participated in the symposium included Professor Hisakazu Matsuoka, Professor Yoshiaki Shiomi, Professor Hisayoshi Matsumoto, Professor Hikotaro Koguchi, Professor Ken Suzuki, and Professor Chen Wang. Since China was then in the midst of drafting and revising the property law, discussions of property law theory naturally became the focus of the symposium.
In defining the macro-basic issues, Mr. Jiang Ping pointed out that:
The Standing Committee of the National People’s Congress (NPC) publicly released the full text of the property law draft on July 10, 2005, and widely solicited opinions. The draft generated a strong response from the public. By August 10, the NPC Legislative Affairs Commission had received 10,032 opinions from the public. There was a widespread expectation that the law would be adopted. According to the plans announced by the legislative authorities, the property law draft would be revised after carefully considering the opinions of all parties. The draft would then be reviewed for the fourth time at the 18th Session of the NPC Standing Committee in October 2005, and for the fifth time at the 19th Session of the NPC Standing Committee in December. The draft would then be submitted to the fourth session of the 10th NPC for a vote, if necessary.
However, a small number of legal scholars in China expressed different views on the drafting and adoption of the property law. They wrote letters to the central government expressing the view that the property law was designed to protect private property, and that the current draft was a private property protection code. They argued that China’s most urgent need was not to protect private property, but to enact laws to prevent the loss of state assets. These scholars even argued that the current property law draft violated the spirit of the Chinese Constitution, because the Constitution states that socialist public ownership is the basis of the economy, while the draft proposes equal protection of public and private property. They argued that this was not feasible under socialism, and that state property should be given priority.
I personally completely disagree with such views. First of all, the property law draft emphasizes the protection of all property, including state property, private property, and collective property. This is clear in the text. In fact, protecting private property equally does not violate the Constitution. The Constitution clearly protects private property, and it is consistent with the spirit of the Constitution to protect private property equally with state and collective property. As for the protection of state property, I personally feel that the property law draft has actually added some special protections for state property during its drafting and revision, rather than special protections for private property. This is what is worth paying attention to. I personally believe that all property ownership, whether private, state, or collective, should be protected equally and consistently. This is a basic legal principle, and the most important thing in law is fairness.
The core of property law is the issue of ownership, especially the ownership of immovable property such as land and houses. The land system can be seen as the core institution of property law in a sense. China's land system is completely formed based on the practice of reform over the past 20 years, and China's reform itself also began with the rural land contracting and operating system. Generally speaking, reform should come first, followed by reform according to the established framework of the law. However, this is not the case in China. China always practices first and then legislates. Legal systems are the summary of practice. For example, rural land contracting and operating are first practiced in reform, and then gradually enter the legal system. Of course, the fact that China does not have a property law does not mean that there are no laws on the land system. However, the current legal provisions are controversial. When drafting the property law, contradictions cannot be avoided. For example, one of the controversial issues in the drafting of the property law draft is whether farmers' collective land can be leased out by themselves. According to the current law, collective land can only be leased out after being expropriated as state-owned land. However, in practice, collective land in many places has already entered the market directly. I believe that high-level decision-makers must have seen this and cannot but consider whether collective land can be given some autonomy. At the same time, another question arises from this: China is so big, should the law be completely uniform? Can the land issue be truly managed uniformly throughout the country?
It should be said that the issues that the law is controversial with are consistent with the problems reflected by economic development as reform has come to this day. Therefore, the controversy over the property law has actually gone deep into a directional reflection of reform itself, and its difficulty in being promulgated is self-evident. We also need to note that although the property law is a new law, its formulation is not a process from scratch. Many of the institutions in the property law are already stipulated in the current laws of China. In the property law draft, except for the good faith possession system, which is a new creation, other legal systems actually already exist, but they are scattered. The property law will unify them.
Therefore, the fact that the property law cannot be promulgated temporarily does not mean that we cannot live our lives or that our rights will not be protected if they are infringed. Without the property law, the court can still hear cases. In this case, we should seriously consider which things in the current property law draft are truly in line with the needs of reform and development, and are suitable for the market direction?
In fact, many legal scholars in China are deeply concerned about the "regression" that has occurred in the drafting of the property law. For example, the revised draft has added two new articles on the protection of state-owned assets. This should not be regulated by the property law, but rather by the state-owned asset management law. On the other hand, some civil law institutions that were originally stipulated have been deleted, such as the issue of abandoned property in the possession system. Some people think it is too trivial, so they deleted these useful things and added some things that are irrelevant to the property law. In addition, the draft stipulates criminal liability in many places, which is not a civil law system. In my opinion, the current property law draft should be further improved on the basis of the original draft. It should be more in line with the direction of reform and development, more in line with the principle of equal protection of rights, and more in line with the requirements of marketization. If it regresses in this regard, it is really not worth it. The key to law is the spirit it embodies, not just some formal provisions.
Mr. Jiang Ping's stories about legislation and analytical opinions are full of insights, and they also reflect the good sense and strong sense of responsibility of a great legal scholar. They also made foreign colleagues feel that China still has a scholarly atmosphere of debate. Although this civil law model forum is a discussion of technical issues of legislation and interpretation, Mr. Jiang Ping's introduction provides a macro-social background for professional research activities, and gives the dry provisions a vivid specific scene and profound social value.
Three years later, in September 2008, I was invited back to China to serve as dean of the School of Law of Shanghai Jiao Tong University. I soon co-founded the academic journal "SJTU Law" with my colleagues. I once went to Beijing with then-editor-in-chief Professor Zhu Mang to ask Mr. Jiang Ping to write the title of our new journal and to have a dialogue on the spirit of modern rule of law. The manuscript was published in the inaugural issue of the magazine. I thank Mr. Jiang Ping for taking the time to write for us in his busy schedule and for giving us a long interview. In this dialogue, Mr. Jiang Ping said something particularly meaningful. He said:
From a social perspective, from the perspective of civil law and private law, I think that protecting private rights is more important. In the past, our society did not emphasize rights. In the planned economy, the emphasis was on duties. After the opening of the market economy, people began to develop some sense of rights. Once this consciousness is formed, it will expand. At this time, two types of rights related to oneself become particularly important. One is material rights, or the question of whether life has improved or whether a house can be afforded. The other is spiritual rights, or human rights in a broader sense. People will consider how many of these rights they have. The answer to this question is clear. I remember that when we were discussing the Basic Law of Hong Kong, a representative from Ningbo immediately raised a question after reading it: "Hong Kong people have rights that we don't have, which makes us feel restricted." People in Eastern European countries generally feel the scarcity of life and the scarcity of rights. In this situation, people will inevitably have corresponding demands, hoping that the rule of law will be perfect and that they will obtain more freedom. These two problems still exist today, such as giving ordinary people freedom in business, as well as freedom of publication, speech, and association. I think this point is not to be ignored.
In a sense, the passage spoken about ten years ago actually contains the key to correctly interpreting and grasping the current Hong Kong turmoil, which is the change in the sense of ownership or enjoyment of wealth and freedom. If we say that before 1997, Hong Kong people felt that they had both wealth and freedom, then by 2007 they began to feel that they were gradually losing wealth but still enjoying freedom, and after 2017 they began to worry that even the remaining freedom would be lost. Regardless of whether it is politically correct, have we fully realized and responded to this change in social psychology? Mr. Jiang Ping's passage seems to be a prophecy, and it is an unfortunate self-fulfilling prophecy. Just this one example can also allow us to deeply experience Mr. Jiang Ping's insight, judgment, and wisdom.
On August 25, 2013, after the decision of the Third Plenary Session of the 18th Central Committee of the Communist Party of China proposed the major proposition that the market plays a decisive role in resource allocation, I hosted a small closed-door meeting in Beijing, with the strong support of Mr. Qin Xiao and Mr. He Di, to discuss my newly completed manuscript "The Road to the Rule of Law." The participants included experts in the field of law, as well as leaders of legislative bodies and economic leaders. I was deeply honored and delighted that Mr. Jiang Ping also took the time to attend the meeting and gave the opening speech. He evaluated the manuscript as having a very clear line of thought and being well-suited to the Chinese reality. He also said that he very much agreed with this line of thought and that we would have great hope as long as we embarked on this path of the rule of law. I understand that these words were simply the kind intention of an elder to encourage the younger generation, but I was still deeply encouraged by them.
In fact, on the east wall of my study, there is a calligraphy by Mr. Jiang Ping that he gave me many years ago. The calligraphy is written in running script and reads: "Zen heart, sword energy, and longing bone - inscribed with the words of Tan Sitong, presented to Professor Ji Weidong." In general, this couplet, which embodies the ideas of serenity in the heart, chivalry in the spirit, and longing in the bones, can be understood as a motto that Mr. Jiang Ping set for me, or as a form of encouragement and exhortation. However, in my opinion, this couplet is actually a self-portrait of Mr. Jiang Ping, the great legal scholar of the 20th century. It is a vivid portrayal of his legendary life. In this era of unprecedented change, in a world where the ghost of high uncertainty is everywhere, the perseverance that comes from Zen may be even more important. In addition, for scholars who value personal independence, intellectual confrontation, and the pursuit of truth, goodness, and beauty, Zen, sword energy, and longing bone may have completely different interpretations. Here, it is up to each individual to decide what they mean. In any case, whenever I look up at this precious plaque, the image of Mr. Jiang Ping, with his white hair and a dignified air, appears before me. It seems that he is pointing out the inevitable path of history to the younger generation in the legal profession. However, there is also a hint of helplessness that cannot be shaken off, and it seems to convey a sigh from the depths of history.