Chinese Legal Thought on the Global and the Domestic Stage: A Rhetorical Study

Abstract

Chinese Communist Party ideologues and a number of prominent legal scholars have become outspoken about the global significance of Chinese legal thought. The question is, however, whether the ambitious statements about the global importance of Chinese legal thought are supported by legal theoretical arguments, which could be influential abroad. This article examines the interaction between the domestic and global stages of Chinese legal speech through the tools of rhetorical theory. Arguments about the nature and global significance of Chinese law are made for different purposes and for different audiences. The most ambitious statements about the global significance of Chinese legal thought are produced within a ‘ceremonial’ genre of speech. Domestic Chinese ceremonial speech is meaningful in the Chinese context, but it translates poorly to globally influential ideological speech. Foreign audiences will find more persuasive arguments about the significance of Chinese legal thought in Chinese deliberative speech, such as parts of Chinese legal scholarship. While arguments made in the deliberative genre are more persuasive than ceremonial speech, specific argumentative moves within this genre are not always helpful for the international advocacy of Chinese legal thought. Moreover, arguments in the deliberative genre are not consistently reflected in Chinese judicial decisions. These observations highlight the role of language and persuasion in the globalisation of law.

In the past few years Chinese Communist Party (CCP) ideologues and a number of prominent legal scholars have become outspoken about the global significance of Chinese legal thought. Chinese commentary on ‘Xi Jinping Thought on the Rule of Law’ (Xi Jinping fazhi sixiang, 习近平法治思想) has adopted a particularly ambitious tone. According to CCP ideologues, Xi Jinping Thought on the Rule of Law contributes ‘Chinese wisdom to the world for advancing the rule of law,’¹ and constitutes ‘an epoch-making advancement in human civilization.’²

There is a growing body of research on Chinese efforts to advocate Chinese law internationally.³ The Chinese government disseminates ideological messages through its foreign language media, international conferences and various legal development cooperation programs, such as professional training courses.⁴ Yet, several important aspects about such advocacy efforts remain obscure. For instance, it is unclear how ideologically loaded China's legal development cooperation programs are. China considers its foreign development cooperation a state secret and publishes little information about its substantive content.⁵ The effects of Chinese legal advocacy efforts on foreign audiences are also uncertain.⁶

China's global ideological agenda remains underexamined also at the domestic level. Ideologically ambitious CCP literature and Chinese legal scholarship suggest that Chinese legal thought – or a specific version thereof, such as Xi Jinping Thought on the Rule of Law – provides globally pathbreaking legal theoretical insights.⁷ At the same time, there also exist more modest registers for discussing the global significance of various forms of Chinese legal thought.⁸ The question is, whether the ambitious statements about the global importance of Chinese legal thought are supported by legal theoretical arguments, which could be influential abroad. Alternatively, should Party ideologues’ statements about the path-breaking nature of Chinese legal thought be seen as mere ‘political rhetoric’?⁹ This article seeks to answer these questions by: (i) describing statements about the global significance of Chinese legal thought within China; and (ii) considering the interaction between the domestic and global stages of Chinese ideological advocacy efforts. This article argues that much of the domestic Chinese speech on Chinese legal thought translates poorly to globally influential ideological, and legal theoretical, speech. This article reaches its conclusions without assuming that there exists a coherent body of Chinese legal thought.

The methodology for this study is derived from rhetorical theory. Rhetorical theory provides useful tools for dissecting the Chinese legal discourse and for examining how and why a particular statement about the global significance of Chinese law is made.¹⁰ The rhetorical approach also highlights the role of language and persuasion in the globalisation of law. Rhetorical theory reveals that Chinese legal speech comprises various types of arguments about the nature and global relevance of Chinese legal thought. Moreover, rhetorical theory suggests that there exist vastly different registers – or genres of speech – to discuss such relevance. This article identifies three distinct rhetorical genres: the ceremonial, the deliberative and the judicial. The most ambitious statements about the global significance of Chinese legal thought are made within a highly standardised ceremonial genre (rather than in the reasoned deliberative genre). Statements made in the ceremonial genre do not attempt to persuade non-believers about intellectual propositions.¹¹ Instead, this article demonstrates that ceremonial speech affirms desirable (if not always realised) socialist values,¹² establishes hierarchical relations between individuals,¹³ and signals the non-discursive nature of the Chinese political system.¹⁴

Audiences will find more substantive arguments about the significance of Chinese legal thought in deliberative texts, such as certain (rather rare) CCP policy papers,¹⁵ and ideologically conservative Chinese legal scholarship.¹⁶ These texts typically assert the substantially just and pragmatist nature of Chinese legal thought.¹⁷ Arguments made in the deliberative genre are more persuasive for domestic Chinese and foreign audiences than China's idiosyncratic ceremonial speech partly because they make use of globally accepted rhetorical commonplaces.¹⁸ Nevertheless, specific argumentative moves within the deliberative genre are not always helpful for the international advocacy of Chinese legal thought. Some of these arguments are aimed at proving the idiosyncratic nature of Chinese legal thought rather than demonstrating its global relevance.¹⁹ Moreover, arguments in the deliberative genre are not consistently reflected in the mode of reasoning of the Chinese people's courts, which is often better described as ‘formalist’ rather than pragmatist (using the Party ideologues’ own terminology).²⁰ This mismatch between the idealised descriptions of Chinese legal thought and the actual modes of reasoning further complicates the international advocacy of Chinese legal thought.²¹ This article examines the compatibility of the deliberative and the judicial genres by studying selected Guiding Cases (zhidaoxing anli, 指导性案例) and Model Cases (dianxing anli, 典型案例), which have been published by the Chinese Supreme People's Court (SPC).²²

The rest of this article is structured as follows. The following section describes the rhetorical approach in more detail. This article then examines self-descriptions of Chinese law in three different genres of Chinese legal speech: the ceremonial genre, the deliberative genre, and the judicial genre. Building on this analysis, this article finally describes the relevance of Chinese domestic rhetorical conventions for China's global advocacy efforts.

The rhetorical approach

The theoretical approach adopted in this article has been inspired by two mid-twentieth century theoretical developments: the performative theory of speech and the revival of classical rhetorical theory as so-called New Rhetoric.²³ The performative theory of speech directs inquiries away from the study of the truth of a given statement, and towards the examination of the intended and actual effects of a speech act.²⁴ Instead of examining the true nature of, say, ‘the rule of law’ and ‘Chinese legal thought’, the performative approach studies the social effects of statements about such concepts.²⁵ This approach brings to the surface a number of non-literal considerations. For instance, arguments about ‘the rule of law’ and ‘Chinese legal thought’ may be effective because they are ambiguous, ironic, implausible, paradoxical, provocative and even humorous.²⁶

New Rhetoric covers some of the same ground as the study of performativity, but its focus is on the persuasiveness of statements. Many of its concepts are derived from classical Aristotelian rhetorical theory. Chaïm Perelman, a principal advocate of New Rhetoric, regarded rhetorical theory as a particularly useful method for understanding legal argumentation.²⁷ In Perelman's view, the disciplines of law and rhetorical theory both examined the credibility, plausibility and probability of argumentation.²⁸

Legal scholars have typically applied rhetorical theory to the study of domestic legal theory,²⁹ but the rhetorical approach is helpful also in the comparative context.³⁰ Legal scholars are intuitively familiar with the rhetorical conventions and other background rules of their domestic jurisdictions. However, in foreign contexts, legal scholars may neglect to assign proper significance to those aspects of speech, which may initially appear unimportant, but which nonetheless contribute to the persuasiveness and other social effects of legal argumentation. The rhetorical perspective is a particularly helpful corrective for the study of illiberal and other ‘non-Western’ legal systems, which are often examined through liberal democratic conventions of legal argumentation.³¹ Rhetorical theory also helps to study the globalisation of law, at least when globalisation occurs through the voluntary reception of foreign legal institutions and processes of persuasion.³²

The specific tools of rhetorical studies include: (i) the analysis of genres of speech;³³ (ii) the examination of argumentative techniques, such as the use of tautologies and other quasi-logical arguments;³⁴ (iii) the description of the nature of the audience and its relationship with the speaker;³⁵ and (iv) the examination of the intended and actual effects of argumentation.³⁶ Perhaps most characteristically, (v) rhetorical studies examine argumentative commonplaces.³⁷ In classical rhetorical theory, argumentative moves were classified through locations (in Greek topoi and in Latin loci).³⁸ For instance, it is a common location (a ‘commonplace’) that more is better than less,³⁹ and good consequences are better than bad consequences.⁴⁰ Legal arguments, too, have been analysed through such commonplaces,⁴¹ although it is questionable whether the diversity of legal arguments can be reduced to a set of formal topoi or loci.⁴²

In contrast to the study of performativity, rhetorical studies have often been motivated by an attempt to formulate universally persuasive arguments.⁴³ Nevertheless, rhetorical studies can also be anchored in the social context of specific speakers and audiences without any universalist aspirations.⁴⁴ Such an approach is particularly valuable for comparative studies. The sense of persuasiveness and other social effects of legal arguments may vary across audiences: an argument which is appealing to one audience may be at a disadvantage in front of another audience or meaningful in some other way. For instance, it is a well-established argumentative strategy both in China and in the United States to characterise one's native law as pragmatist and substantive and to describe other legal systems as fixed and formalist.⁴⁵ Yet these commonplaces have different implications and uses in China and the USA. In China, they typically attest to the benefits of the one-party state, whereas in the USA they stand for the progressive, ‘liberal’ reform agenda.⁴⁶

Stripped of its universalist aspirations, rhetorical theory has the potential of generating a nuanced image of different legal discourses and the interaction between them. At the same time, it should be acknowledged that rhetorical theory provides no basis for maintaining that comparison elevates a foreign scholar above rhetorical uses of language. Every argument about the actual nature of the Chinese legal discourse can be easily interpreted as yet another (unprovable) rhetorical move within the comparative law discourse. Moreover, there is always the argument that the genres and commonplaces of a particular rhetorical study misinterpret the ‘real’ genres and commonplaces of a foreign legal discourse. In particular, it may be argued that Aristotelian rhetorical theory is inapplicable to a non-European context.⁴⁷

There is no way to preempt such arguments in abstracto. At most a scholar can hope that the descriptions and generalisations they promote appear more plausible to that scholar's audience than competing descriptions and generalisations. Besides, from the rhetorical perspective it appears that the quest for certainty in comparative law itself is supported by a rhetorical commonplace: the notion that a true and authentic object is superior to its illusory and inadequate representations.⁴⁸ This rhetorical trope arguably sets comparative law up for failure. If there exists a correct and ‘authentic’ view of a legal system, any derivative description of that legal system is inevitably an inauthentic facsimile.⁴⁹ In contrast to the search for authenticity in comparative law, the rhetorical approach teaches that approximation is not to be resented.

Finally, it should be stressed that the focus on the rhetorical does not mean that a particular form of argumentation (for example, CCP cadres’ ideological speech) is ‘just rhetoric’ – that is, insincere or meaningless language.⁵⁰ As Friedrich Nietzsche pointed out, all language and knowledge itself can be understood as rhetoric.⁵¹ From the rhetorical perspective, all statements in comparative law and legal theory owe their persuasiveness to rhetorical techniques (including, of course, the statements in this article).⁵² It should also be noted that the rhetorical approach does not imply that legal theoretical descriptions, such as ‘formalism’ and ‘pragmatism’, could not be usefully applied from the appliers’ point of view.⁵³ Instead of arguing for or against specific legal theoretical propositions, rhetorical studies focus on the persuasiveness and effectiveness of argumentation. A particular argument about the nature of Chinese legal thought may well be effective, and ‘useful’, for a particular speaker and audience. At the same time, it needs to be recognised that applying the rhetorical perspective to a particular discourse has social effects in its own right. For instance, the rhetorical approach may be successful in persuading its audience that CCP ideologues’ narratives about the nature of Chinese legal thought, discussed in the following sections, represent a partial reading of Chinese law.

The ceremonial genre of Chinese legal Speech

Internationally, the most visible part of the Chinese legal speech takes place in a self-consciously ideological genre of speech.⁵⁴ In classical Aristotelian terms this genre can be described as ceremonial (or ‘epideictic’). Ceremonial speech does not provide immediately actionable guidance to its audience, nor does it primarily seek to persuade its audience about intellectual propositions.⁵⁵ At the same time, ceremonial speech can have social effects. Among other things, ceremonial speech can strengthen the common values of the speaker and their audience, thereby persuading audience members about the importance of adhering to these values.⁵⁶ Interpreting the Chinese leadership and CCP cadres’ ideological statements on law as ceremonial helps contextualise – and compartmentalise – the image of Chinese law conveyed through such speech. Such a characterisation also helps one to understand the challenges of Chinese legal development cooperation and the advocacy of Chinese legal institutions and legal thought abroad.

As mentioned above, CCP leadership and Party ideologues have in recent years become increasingly ambitious about the global relevance of Chinese legal thought.⁵⁷ Party ideologues describe Xi Jinping Thought on the Rule of Law as ‘an epoch-making advancement in human civilization.’⁵⁸ Chinese legal scholars have argued that ‘Xi Jinping Thought on the Rule of Law’ is globally ‘original’,⁵⁹ ‘of great significance for … the global history of the rule of law’,⁶⁰ ‘a new development’ in human rights theory,⁶¹ and ‘an innovation’ in global constitutional theory.⁶² Such statements establish the success of Xi Jinping Thought on the Rule of Law as a fact, typically without attempting to describe the advanced and path-breaking nature of Xi Jinping Thought on the Rule of Law in comparison to other forms of legal thought. Instead of deliberative reasoning, ceremonial speech focuses on defining various elements of Xi Jinping Thought on the Rule of Law. A standard definition of the policies involved in Xi Jinping Thought on the Rule of Law, the ‘Eleven Upholds’ (Shiyi ge jianchi, 十一个坚持), comprises ideals such as ‘upholding Party leadership’ and adhering to constitution-based governance and the impartial administration of justice.⁶³

The category of ceremonial speech helps explain why Chinese political speech on Xi Jinping Thought on the Rule of Law neglects to reason about its advantages in contrast to the previous and other existing forms of legal thought. For instance, a speech by Chen Yixin, the Secretary-General of the Central Political and Legal Affairs Commission, describes the benefits of Xi Jinping Thought on the Rule of Law by conflating the dispute settlement methods advanced under this concept with China's traditional informal dispute resolution.⁶⁴ At the same time, Chen also maintains that the epochal advancements of Xi Jinping Thought on the Rule of Law arise from safeguarding ‘the rule of law’ on the international plane.⁶⁵ The former argument associates Xi Jinping Thought on the Rule of Law with informal social practices, whereas the latter argument couples his thought with attempts to formalise the international legal order through legal norms. How these two forms of social organisation fit together is not discussed in the text, as would likely be the case in a more deliberative register.⁶⁶ Instead of seeking to persuade a sceptical audience about his propositions, the focus of Chen's speech is on reiterating the values relating to law and Party governance in China: informal dispute resolution is a positive value, as is formal dispute resolution.⁶⁷

Ceremonial speech on Xi Jinping Thought on the Rule of Law reiterates socialist values in a standardised, even liturgical manner.⁶⁸ Party cadres must follow ‘the law’, advance ‘the rule of law’ (fazhi, 法治), ‘govern the country in accordance with law’, ‘construct a country that is ruled by law’, while ‘unwaveringly upholding the Party's leadership over political and legal work’.⁶⁹ For a skeptical audience such arguments may appear disingenuous or even cynical. Party leaders sometimes dictate the outcome of judicial decisions in a way that contradicts even the limited definition of judicial independence in Party ideology, not to speak of the Party's more ambitious legalistic goals.⁷⁰ Nevertheless, even implausible statements about the legal system can be seen as descriptions of values, which the Party leaders and their supporters would like to see affirmed, even if this is not always possible in practice.⁷¹ Indeed, many rhetorical commonplaces used in Chinese ceremonial texts would be agreeable in a liberal democratic context. Substantively more just decisions are preferable to substantively less just decisions;⁷² like cases must be treated alike;⁷³ legal authorities must be followed;⁷⁴ and acts must be assessed in terms of their consequences,⁷⁵ except when acts must be judged through precedents and rules.⁷⁶ Doubts about the coherence of these commonplace arguments are seldom made explicit in Chinese ceremonial speech, except as denials of such doubt.⁷⁷

Given their ceremonial role in domestic Chinese politics, it is only to be expected that the most ambitious statements about the importance of Xi Jinping Thought on the Rule of Law are published in the Chinese language and disseminated to domestic Chinese audiences. In Chinese domestic politics, it may not matter whether such statements are sincerely believed or not. One performative function of illiberal ideological speech may consist of signaling that the political system is not based on persuasion (or discursive rationality), but on the unquestioning submission to more or less implausible ideological constructions.⁷⁸ The recent ideological messaging on Xi Jinping Thought on the Rule of Law – a more idiosyncratic and personified construct than the older term ‘socialist rule of law’ – can be seen as a signal for the newly heightened expectations of ideological compliance.⁷⁹ Consequently, the reproduction of praise for Xi Jinping Thought on the Rule of Law serves to indicate one's compliance with the Party leadership's ideological project.⁸⁰

Some speech acts in the Chinese ceremonial genre are disseminated to foreign audiences. Key speeches and texts by CCP leadership are translated into foreign languages, posted on Chinese government websites and referenced in state-run foreign language publications.⁸¹ These translations are loaded with ideological terms, which are significant in the Chinese context, but largely meaningless for foreign audiences even as English language translations. For instance, an English language compilation of Xi Jinping's speeches, translated by the Party's Compilation and Translation Bureau, makes use of Chinese political terms such as ‘Deng Xiaoping Theory’, ‘the Chinese Dream of national rejuvenation’, and ‘formalism, bureaucratism, hedonism, and extravagance’.⁸² While the translators of this compilation explain the meaning of traditional Chinese sayings used in Xi Jinping's speeches,⁸³ they make no attempts to explain the meaning of Chinese political terms to a foreign audience. Outside a small circle of China experts, few foreigners will have the prerequisite knowledge to understand what Chinese political concepts, such as ‘Deng Xiaoping Theory’ and ‘formalism’, mean in their original context.⁸⁴ Such miscommunications may not matter, since foreigners do not generally take part in domestic Chinese political performances. The dissemination of Chinese ceremonial speech abroad seems designed to demonstrate China's domestic ideological resolve rather than to achieve any specific effect abroad.

CCP ideologues have designed a genre of ceremonial speech specifically for foreign audiences. This subgenre of Chinese ceremonial speech is organised around concepts such as ‘peaceful coexistence’, ‘harmonious world’ and, most recently, ‘the community of shared future for mankind’ (or ‘community of shared destiny for mankind’, renlei mingyun gongtongti, 人类命运共同体).⁸⁵ In the Chinese context, these concepts signify a form of international integration that suits China's statist political and economic system and stands opposed to the Western economic and human rights agenda.⁸⁶ At the same time, foreign-orientated ceremonial speech is typically centered on unobjectionable terms such as ‘mutual respect, equity, justice and win-win cooperation’.⁸⁷ For instance, the 2021 Chinese government whitepaper on Chinese development cooperation makes no mention of Xi Jinping Thought on the Rule of Law.⁸⁸

Commonly agreeable ‘ceremonial’ language allows China's development partners to express their commitment to common development projects with Beijing and to position themselves as suitable recipients for Chinese development aid and investments.⁸⁹ To ease such performances, central concepts of law and development are sometimes left ambiguous in foreign-orientated Chinese policy texts. A Chinese government white paper, China and the World in the New Era, outlines various lessons from the Chinese development experience to developing countries, including the Chinese experience with the ‘rule of law’.⁹⁰ The white paper defines the rule of law as the ‘law-based governance of the country, law-based exercise of state power and law-based administration in the government’.⁹¹ It is unclear whether this rule of law model comprises an independent judiciary and individual civil and political rights.⁹² Since some of China's development partners are (or at least aspire to be) liberal democracies, it is prudent for the Chinese side to avoid taking a clear view on such questions in speech aimed at foreign audiences.

Deliberative speech in Chinese policy texts and legal scholarship

While ceremonial speech is the most visible part of the Chinese legal speech globally (because of its domestic prominence and foreign language translations), in China there also exists a deliberative genre of legal speech, which seeks to persuade Chinese audiences about ideological propositions.⁹³ Deliberative speech could potentially play a role in the voluntary reception of Chinese legal thought in foreign countries.⁹⁴ However, until recently CCP ideologues and conservatively minded Chinese legal scholars have not advanced arguments about the global relevance of Chinese legal thought in foreign forums. Instead, these ideologues and scholars have focused on arguing against the importation of Western legal concepts into China. A standard technique in this project has been to argue that foreign legal institutions are inevitably incompatible with the national conditions of the country importing them.⁹⁵ This argument has served a useful defensive purpose for Party ideologues and conservatively-orientated legal scholars, who oppose the ‘hegemonic’ Western legal and political model.⁹⁶ Nevertheless, the emphasis on the idiosyncrasies of the Chinese national conditions does little to help the Chinese government's efforts to promote Chinese socialism internationally.⁹⁷

To persuade foreign audiences about the global relevance of a certain description of Chinese legal thought, CCP ideologues will have to identify similarities (rather than differences) between China and its development partners.⁹⁸ The Chinese deliberative genre provides some resources for this effort. First of all, even those Chinese scholars who otherwise endorse homegrown Chinese legal institutions tend to agree that the ‘fundamental values of modern society are … universal’.⁹⁹ Some CCP policy texts also acknowledge that the key aspects of Party ideology, such as popular sovereignty, basic human rights and the limitation of powers doctrine, have been received from Western liberal democracies.¹⁰⁰ Building on such shared common ground, Party ideologues could develop a variation of the socialist rule of law which, while distinct from the ‘capitalist’ rule of law, could still be relevant to other developing countries.¹⁰¹ As mentioned above, some Chinese jurists already describe Chinese legal thought and Xi Jinping Thought on the Rule of Law as innovations, which are ready for global exportation.¹⁰²

However, at some point in this process Party ideologues and conservative legal scholars promoting Chinese law will have to explain what precise benefits a given version of Chinese legal thought can offer to foreign jurists compared to existing modes of legal thought.¹⁰³ One way to answer this question is to associate Western legal thought with legal theoretical concepts such as ‘legal formalism’ (falü xingshi zhuyi, 法律形式主义), ‘positivism’ (shizheng zhuyi, 实证主义) and ‘legal dogmatism’ (fatiao zhuyi, 法条主义), and to criticise these forms of legal thought as intellectually outmoded.¹⁰⁴ According to the CCP's historiography, the Party's legal thought marks a significant development to capitalist legal formalism.¹⁰⁵ As Jiang Shigong of Peking University explains, the PRC replaced the ‘method of strictly observing formal logic’ with the Marxist and Maoist approach of ‘penetrating the phenomenon to see the essence’ of a matter.¹⁰⁶ Other Chinese scholars have drawn similarly sharp distinctions between the supposedly ‘formalist’ Western legal system and China's more advantageous ‘substantively just’ legal system.¹⁰⁷

Such ‘anti-formalist’ arguments associate Chinese legal thought with the progressive elements of global legal thought.¹⁰⁸ In addition to placing the Party in the avant-garde of global intellectual development, such an association is useful domestically. The anti-formalist argumentative strategy allows Party ideologues to suggest that written law should not be the only normative source of adjudication, and that Party cadres should also consider ‘the Party's cause and the interests of the people’ in law enforcement.¹⁰⁹ A CCP textbook from the Hu Jintao era even describes the ‘political and social effects’ of a judicial decision as the ‘ultimate criteria’ of law enforcement, which may be able to trump the ‘legal effects’ of a decision.¹¹⁰ Anti-formalist arguments seek to transfer the value of positive social consequences to the Party organisation, thereby legitimising the Party's role in the Chinese party-state.¹¹¹ China is better off because of the Party's political leadership and, therefore, the Party itself is beneficial for China.¹¹² The rhetorical transfer of value may also occur between China's economic successes and Chinese legal thought. For instance, Huang Wenyi of Renmin University has morphed China's economic progress into an argument about the global relevance of Xi Jinping Thought on the Rule of Law.¹¹³

The concept of pragmatism provides a legal theoretical vehicle for establishing a distinction between Chinese and Western legal thought and for legitimising Party leaders’ interventions into the judiciary. According to Huang Zongzhi of Renmin University, Chinese legal thought is characterised by ‘pragmatic moralism’ (shiyong daode zhuyi, 实用道德主义).¹¹⁴ This form of legal thought is not based on formalistic deductive logic but, instead, sets up specific moral purposes (such as filial piety and other family values) for all law application.¹¹⁵ From this perspective, the CCP is the guardian of Chinese moral values in the judiciary,¹¹⁶ which may decide to modify or suspend the law in specific cases.¹¹⁷ Adhering to a similar pragmatist ethos, Zhu Suli of Peking University has instructed judges ‘to settle disputes well’ after considering all the facts of the case, instead of seeking to merely ‘abide by their duties and implement extant legal rules’.¹¹⁸ Huang's and Zhu's arguments rely on the pragmatist commonplace, which juxtaposes the observance of legal forms with the achievement of positive social consequences.¹¹⁹ In the Chinese context pragmatist arguments are typically made in order to support the political status quo, but they may also support other political projects.¹²⁰ For instance, politically liberal Chinese jurists have argued that optimal social consequences follow from allowing the judiciary to independently decide the nature of China's social needs,¹²¹ and from requiring that judges adhere to formal rules above anything else.¹²²

In addition to pragmatist and consequentialist arguments, Chinese deliberative texts rely on arguments about essences in their characterisations of Chinese legal thought.¹²³ Such arguments seek to reveal an event or an object as the manifestation of a more ‘essential’ event or object.¹²⁴ Jiang Shigong explains that the goal of Maoist administration of justice was to understand the ‘essence’ (benzhi, 本质) of an issue at hand.¹²⁵ Maoist judges revealed individual events of a case as fragments of the ‘true situation’, which comprised the entire social context of the event.¹²⁶ Arguments about essences were a particularly prominent rhetorical trope during the Maoist era, but they retain some persuasive force in contemporary China.¹²⁷ While Jiang Shigong mostly places the search for essences into a historical context, he also states that ‘contemporary Chinese legal technic is nurtured in a holistic political worldview’.¹²⁸ A similar argument has been advanced by Huang Zongzhi, who opposes Western formalist justice and maintains that the Chinese substantive approach to justice is able to combine law and politics into a harmonious governance ideology.¹²⁹

Finally, it should be noted that arguments about anti-formalism, pragmatism and essences coexist in Chinese policy texts and legal scholarship alongside formalist arguments about the normative order.¹³⁰ Formalist arguments are common in all modern legal systems,¹³¹ and they are ubiquitous also in China. The same Party documents that criticise legal formalism and instruct Party cadres to prioritise positive social and political consequences of a legal decision, also require Party cadres to apply the law ‘strictly’ and to work towards perfecting China's formal legal system.¹³² Some texts explicitly advocate anti-formalism, while urging Party cadres to strengthen ‘governance by law’ (yifa zhili, 依法治理) and clarifying the organisational boundaries within the Party.¹³³ Descriptions of ‘Xi Jinping Thought on the Rule of Law’ also instruct CCP cadres to ‘fully grasp’ the necessity of ‘forming a complete system of legal norms’.¹³⁴ Recent expositions of Xi Jinping Thought on the Rule of Law appear to have adopted a less aggressive tone against formalism than the earlier texts on the socialist rule of law (while retaining many of the same anti-formalist commonplaces).¹³⁵ This change of tone may signal support for the efforts to improve rule-based governance within the Chinese party-state.¹³⁶ Yet, while formalist strategies are an integral part of the Party's project to rationalise its governance methods,¹³⁷ they also weaken the argument that Chinese legal thought constitutes an anti-formalist alternative to ‘formalist’ Western legal thought.

Justifying judicial decisions

The image of Chinese law conveyed in the above-described political speeches, CCP policy texts and textbooks and legal scholarship does not necessarily correspond to the actual adjudicative techniques used in Chinese people's courts. For a rhetorical study this question comes down to examining the differences between the ceremonial, deliberative and judicial (or ‘forensic’) genres.¹³⁸ This part analyses Chinese judicial speech in a selection of SPC Guiding Cases and Model Cases. These cases form a tiny sample of Chinese judicial speech. Nevertheless, they are representative of officially sanctioned modes of argumentation in the Chinese people's courts.¹³⁹ These modes of argumentation can be seen in case notes, which summarise the holding of each case and illustrate their adjudicative techniques.¹⁴⁰

A close reading of SPC Guiding Cases and Model Cases demonstrates that the Chinese judicial genre follows different genre conventions than the ceremonial and deliberative genres of Chinese legal thought. Whereas deliberative texts draw stark distinctions between legal formalism and various forms of anti-formalist legal reasoning, this distinction is rarely visible in SPC Guiding Cases and Model Cases.¹⁴¹ Instead of relying on anti-formalist language, these cases commonly make use of textualist argumentative devices, which could be labelled (using the Party's own terminology) as ‘dogmatic’ or ‘formalist’.

First of all, a number of SPC Guiding Cases and Model Cases rely on ‘systemic interpretation’ (tixi jieshi, 体系解释), a method which places legal norms into their overall normative context.¹⁴² In Guiding Case No 70, for instance, different level people's courts considered a traditional area of regulation in China – the selling of salt – determining whether the addition of a certain harmful substance to salt, which was not specified in the applicable list of harmful substances, warranted administrative and criminal penalties.¹⁴³ The question was resolved through a general provision in the PRC Criminal Law, which prohibited the selling of food mixed with any harmful substances.¹⁴⁴ The Guiding Case note comprised no ‘holistic’ political considerations beyond a discussion on the harmfulness of the added substance.¹⁴⁵

As mentioned above, some SPC Guiding Cases have been decided through simple tautologies, which can be described as ‘dogmatic’ or ‘formalist’.¹⁴⁶ These and other quasi-logical argumentative strategies invoke the prestige of formal logic in legal argumentation – a strategy which the Party's deliberative policy papers criticise, as described above.¹⁴⁷ For instance, Guiding Case No 101 turned on the meaning of ‘government information’ (zhengfu xinxi, 政府信息), whose disclosure could be requested under the applicable government regulations.¹⁴⁸ A lower-level people's court had come to the conclusion that maritime investigation reports were not ‘government information’, and consequently did not have to be disclosed to the public.¹⁴⁹ The SPC reversed this decision, characterizing maritime reports as ‘government information’ and required their public disclosure.¹⁵⁰ The laconic Guiding Case note did not delve into the policy reasons for this decision, nor did it describe the interpretative methods through which the SPC had arrived in its decision.¹⁵¹

The SPC also uses interpretative strategies which are not strictly textual. For instance, the SPC has interpreted legal provisions by referring to the legislative intent of China's highest legislator, the National People's Congress,¹⁵² and the presumed purposes of legislation.¹⁵³ The SPC has explicitly argued against the textual interpretation of legal rules on some occasions. In Guiding Case No 75 the SPC disavowed the practice of deciding cases on the basis of ‘the literal expression’ (wenzi biaoshu, 文字表述) of a rule.¹⁵⁴ This case concerned the admissibility of environmental public interest actions, which is a politically sensitive question in China.¹⁵⁵ The PRC Environmental Protection Law stipulated that social organisations ‘engaged specifically in public service activities in environmental protection’ could initiate public interest litigation against polluters.¹⁵⁶ The charter of the social organisation, which had brought the action in question, did not specifically state that its work involved ‘public service activities in environmental protection’. This fact alone had been sufficient for the lower level people's court to dismiss the lawsuit.¹⁵⁷ The SPC overturned this decision, noting that a social organisation, which generally worked in environmental protection, could bring a public interest action even if its charter did not include the precise wording of the PRC Environmental Protection Law.¹⁵⁸ Both the original SPC decision and the Guiding Case note stated that judgments should be based on ‘connotations’ (neihan, 内涵) rather than on the ‘literal expression’ of rules.¹⁵⁹ The SPC did not discuss the sensitivities surrounding civil society activism in China, but it pointed out that the object of the public interest action in question deserved environmental protection.¹⁶⁰

While the SPC's judicial reasoning sometimes makes an explicit distinction between formal rules and their social context, it is common to find the literal meaning or connotation of a rule, and its social context, intermingling in SPC Guiding Cases and Model Cases. Some cases establish the meaning of a legal concept in the context of the public's (presumed) understanding of that concept.¹⁶¹ Other cases make use of the kind of consequentialist arguments that CCP policy texts purport to promote, while keeping the decision within the text of the law. In a copyright infringement case, for instance, the SPC saved a plagiarised patriotic sculpture from demolition based on the ‘perspective of the effective use of public resources’.¹⁶² The decision remained within the literal meaning of the law because the PRC Copyright Law authorised, but did not require, the destruction of infringing reproductions of copyrighted works.¹⁶³

Explicitly consequentialist language is rarer in the SPC's judicial practice than what the anti-formalist statements in Party literature suggest, but examples of it do exist. Consequentialist language was prominent in the Model Cases released in response to the COVID-2019 pandemic.¹⁶⁴ In these cases the SPC explicitly set out to enforce legislation so that economically viable businesses would not go under because of the temporary market disturbance caused by the pandemic.¹⁶⁵ Among other things, the Model Cases urged people's courts to promote settlements and disallow liquidation for the non-performance of contractual obligations caused by the pandemic.¹⁶⁶ These Model Cases appear to manifest the consequentialist (or ‘substantive’) approach to adjudication in Party literature.¹⁶⁷

To conclude, the Chinese judicial genre includes argumentative moves, which are critiqued in the Chinese ceremonial and deliberative genres. This may not affect the initial persuasiveness of deliberative statements about Chinese law: a foreign observer may well believe that Chinese legal thought is more substantively just and pragmatist than ‘Western’ legal thought, without having read a single Chinese judicial decision. Nevertheless, the argumentative moves in the Chinese judicial genre influence efforts to advocate Chinese legal thought in several ways. First, it is awkward that many argumentative strategies in the Chinese judicial genre fit Party ideologues’ descriptions of the supposedly outdated ‘capitalist’ form of legal thought. Second, the intermingling of formalist and consequentialist considerations in SPC decisions puts to question the very premises of the distinction between formalist and non-formalist legal thought. Such anomalies make it more difficult for Party ideologues and Chinese legal scholars to establish a coherent view about the paradigm-shifting advantages of Chinese legal thought. Third, at some point the sustained reception of Chinese legal thought in foreign countries may well involve the study of Chinese legal decisions. Such engagement could reveal that the ideals expressed in the Chinese ceremonial and deliberative genres have not been consistently turned into adjudicative practices in Chinese people's courts, thereby reducing the persuasive force of Party ideologues’ descriptions of Chinese legal thought.

From the domestic to the global stage

The above sections have demonstrated that in China there exist different registers of speech on the global significance of Chinese legal though. The most ambitious statements about the global significance of Chinese legal thought are deeply embedded in domestic Chinese politics. Indeed, stating that Xi Jinping Thought on the Rule of Law constitutes a globally significant theoretical breakthrough is a performative act in Chinese domestic politics.¹⁶⁸ It is unlikely that the Party ideologues’ ceremonial speech could induce foreign lawyers to adopt Chinese ceremonial language at home, let alone make Xi Jinping Thought on the Rule of Law a paradigm-shifting development on par with, say, global human rights language. Being aimed at a domestic Chinese audience and being backed up by domestic uses of political power, Chinese ceremonial speech does not offer foreign audiences compelling reasons to undergo a profound ideological conversion or rhetorical transformation. Nevertheless, as previously pointed out, Chinese ceremonial speech also includes a foreign-orientated genre, which comprises terms such as ‘open cooperation, mutual benefit and win-win’.¹⁶⁹ This genre facilitates development cooperation between China and its development partners, thereby providing the Chinese government a chance to influence foreign lawyers. At present, there are few concrete examples of successfully exported Chinese legal institutions,¹⁷⁰ but at least opportunities for such exchanges exist.

CCP policy papers draw stark distinctions between China and foreign countries. This argumentative strategy seeks to persuade Chinese audiences about the legitimacy of the Chinese party-state, but it does not explain why Chinese legal thought should be seen as globally relevant. To the extent that Party ideologues and Chinese legal scholars provide such reasons, they describe the advantages of specific versions of Chinese legal thought in terms of anti-formalism, pragmatism and ability to focus on the truth – or the ‘essence’ – of a matter.¹⁷¹ Such arguments are potentially persuasive to foreign audiences because they make use of globally popular rhetorical commonplaces, such as the preference for substance over form and good consequences over bad consequences. Arguments building on such commonplaces will appear familiar and plausible in foreign contexts.

Nevertheless, the familiarity of these arguments also means that they will not appear as paradigm shifting as the Chinese ceremonial genre supposes. Global legal thought has comprised anti-formalist and pragmatist arguments for over a century now,¹⁷² and there is little in the Chinese insistence on pragmatism and substantive justice that is new for jurists from the global south.¹⁷³ This also seems to be true of the supposedly Chinese form of pragmatism, which seeks to provide moral objectives for policy-making and adjudication.¹⁷⁴ Moreover, in many developing countries pragmatism and instrumentalism have given way to the global human rights discourse, which explicitly opposes the instrumentalist dilution of formal legal rights and processes.¹⁷⁵ Arguments about the advantages of Chinese legal thought may, therefore, appear dated in many parts of the world. Having said that, the novelty of an idea is not the only, or even the principal, factor in establishing a sense of persuasiveness for an argument. Even if CCP ideologues fail to make a convincing argument about the novelty of Chinese legal thought,¹⁷⁶ they may still try to make use of analytic distinctions, transference of value and pragmatist arguments discussed above to make a compelling case for the global relevance of Chinese legal thought. Moreover, large part of the globalisation of law occurs through non-discursive means, and also Chinese legal speech may spread irrespective of its persuasiveness.¹⁷⁷

The Guiding Cases and Model Cases form a contrast to the self-descriptions of Chinese legal thought in the Chinese ceremonial and deliberative genres. Instead of attempting to establish difference to foreign law, the Chinese judicial genre makes use of the same legal analytic distinctions, pragmatist claims and other rhetorical devices that are typical of legal argumentation elsewhere.¹⁷⁸ The Chinese judicial genre also makes copious use of formalist argumentative devices, such as quasi-logical tautologies and analytic definitions. This is understandable. Formalist language provides Chinese people's court judges a useful means to insist that they follow legislation as adopted by China's CCP-controlled legislature.¹⁷⁹ Such language also allows Chinese judges to highlight the professional nature of their adjudicative practice.¹⁸⁰ Nevertheless, far from being absent from Chinese legal thought, legal formalist arguments play a central role in Chinese legal thought. Indeed, CCP ideologues characterise the Party's own regulations as a logically rational system of norms.¹⁸¹ Formalist language is appealing also to China's liberally minded and politically centrist legal scholars, who use formalist arguments to promote rule-following within Chinese state organs and the CCP itself.¹⁸² As native speakers of the language of law (and of rules in general), lawyers can assert power more easily when decision-making is supposed to occur with reference to formal rules.¹⁸³

The analysis above makes it difficult (but obviously not impossible) to describe the essence of Chinese legal thought through a legal theoretical moniker, such as ‘pragmatism’,¹⁸⁴ ‘instrumentalism’,¹⁸⁵ ‘formalism’¹⁸⁶ and ‘legalism’,¹⁸⁷ or even through a combination of these terms.¹⁸⁸ Any attempt to superimpose a structure on various Chinese argumentative strategies will merely constitute another rhetorical move in an already crowded discourse of rhetorical moves.

From the rhetorical perspective, legal theoretical concepts, such as formalism and anti-formalism, appear as argumentative commonplaces, which allow Party leaders, ideologues, and jurists to achieve (or attempt to achieve) various political objectives in specific instances.¹⁸⁹ For the Party leadership, a statement urging Party cadres to strictly observe the law provides a means to remind lower-level Party cadres about the hierarchical relations in the Chinese party-state and to address specific governance issues, such as local protectionism.¹⁹⁰ At the same time, it is also in the Party leadership's interests to emphasise the importance of adhering to the Party's ideological line through explicitly anti-formalist statements.¹⁹¹ The faithful adherence to the normative order set forth by the Party leadership is, therefore, not reducible to the ‘formalist’ interpretation of laws and Party rules alone, nor can it be understood as ‘pragmatism’ or ‘instrumentalism’. Instead, these concepts are used to signal different aspects of the Party leadership's governance project: a bureaucratic governance project, which occurs through formal rules, and a law-transcending political project, which occurs through Party leaders’ unfettered political agency.¹⁹² The (Nietzschean) application of rhetorical theory leads to the conclusion that the Party's governance project has no authentic or true nature, which exists beyond the rhetorical uses of language.¹⁹³ Even the notion of a coherent mode of ‘legal thought’ dissipates through the rhetorical perspective. The Party's governance project, and all other speech acts in the Chinese legal system, take on a different form in each instance in which they are manifested or described.

The difficulty of capturing the essence of Chinese legal thought through legal theoretical concepts does not mean that the rhetorical moves in Chinese legal speech are the same as the rhetorical devices in liberal democracies or elsewhere.¹⁹⁴ There may be differences between the ordering and frequency of (say, formalist and anti-formalist) argumentative commonplaces between China and other jurisdictions. Arguments about essences have given rise to an idiosyncratic Chinese political language, which is visible, for instance, in Mao Zedong's famous typology of social contradictions.¹⁹⁵ Analysing society through contradictions became anachronistic in the 1990s and 2000s, but there are signs that this argumentative trope is being rehabilitated in contemporary China.¹⁹⁶ The Chinese ceremonial genre also emphasises harmony between the individual, the state and the Party in a way that ideological speech in liberal democracies does not do.¹⁹⁷ There are specific commonplaces in the Chinese legal discourse (such as the ubiquitous references to ‘Party leadership’) which emerge from China's Marxist-Leninist political system.¹⁹⁸ The specific genre of Chinese dissident speech is also absent from contemporary liberal democracies.¹⁹⁹ Politically motivated speech, in general, takes on a more ambiguous form in China than in liberal democracies. As a result of ideological censorship even mainstream Chinese legal scholars must be evocative about their views.²⁰⁰ Moreover, Chinese ideological taboos – such as the inability to critically examine the value of Party leadership – make it difficult for Party ideologues and Chinese legal scholars to produce compelling arguments for foreign audiences. Acknowledging weaknesses in one's position and recognising an audience's counterarguments against it are useful persuasive strategies.²⁰¹ While many other factors explain the reception of foreign legal thought, language and persuasion play a role in the globalisation of law.

Conclusion

In conclusion, the rhetorical perspective described in this article helps scholars to appreciate, and make explicit, various performative speech acts within a legal discourse. For instance, it would be a mistake to take CCP ideologues’ characterisations of the nature of Chinese law as evidence of its actual nature. The rhetorical analysis of different genres of Chinese legal discourse reveals that such characterisations are motivated, among other things, by an effort to legitimise CCP rule and to signal the authoritarian and non-discursive nature of the Chinese party-state. Such arguments play an important role in domestic Chinese politics, but they may be less effective on the global stage. In the Party ideologues’ imagination, the globalisation of law is at least partly a persuasive process, and Chinese domestic rhetorical conventions do not always support the Chinese government's ideological advocacy efforts abroad. The persuasiveness of the Chinese legal discourse depends ultimately on foreign audiences’ rhetorical conventions. These conventions, and foreign audiences’ reactions to Chinese ideological advocacy, merit further studies.