As a multi-nation state, the People’s Republic of China has developed a legal framework on minority nationalities that officially recognizes 55 groups totalling approximately 100 million people. Since the 1980s, China has also been one of the most influential actors in numerous fields of global governance, increasingly playing an essential role by participating in international norm-making and norm-implementing processes. Yet much remains unknown about the relevant Chinese perspectives, legal frameworks, and practices in the context of legal pluralism domestically and internationally, and the combination of law and anthropology can go a long way towards addressing this knowledge gap. The roundtable discussion “Law and Anthropology in China”, conducted in the form of a webinar on 6 July 2023 at the Max Planck Institute for Social Anthropology (MPI), is a preliminary effort to bridge the gap between scholars inside of China and those outside of China, allowing them to exchange their concerns and observations on the guiding question, “The anthropological study of cultural diversity and law in China: Why and how?”
A total of 16 scholars from nine academic institutions participated in the discussion:
Weichen Wang (Deputy Dean and Associate Professor, Shanghai International Studies University Law School, Shanghai, China)
Tao Yin (Associate Professor of Sociology, Harbin Engineering University, Harbin, China)
Shunfeng Liu (Associate Professor of Legal Anthropology, Hunan Normal University Law School, Changsha, China)
Hao Xiong (Associate Professor of Law, Fudan University Law School, Shanghai, China)
Xiangjun Chen (Dean and Professor, School of Ethnology and Sociology, South-Central Minzu University, Wuhan, China)
Marie-Claire Foblets (Director, Law & Anthropology Department, Max Planck Institute for Social Anthropology, Halle/Saale, Germany)
Biao Xiang (Director, Anthropology of Economic Experimentation, Max Planck Institute for Social Anthropology, Halle/Saale, Germany)
Dirk Hanschel (Professor of German, European, and International Public Law, Martin Luther University, Halle/Saale, Germany; Head of Environmental Rights in Cultural Context Research Group, Max Planck Institute for Social Anthropology, Halle/Saale, Germany)
Yong Zhou (Researcher, Faculty of Law, University of Oslo, Oslo, Norway; Research Partner, Max Planck Institute for Social Anthropology, Halle/Saale, Germany)
Bertram Turner (Senior Research Fellow, Law & Anthropology Department, Max Planck Institute for Social Anthropology, Halle/Saale, Germany)
Brian Donahoe (Senior Scientific Editor, Law & Anthropology Department, Max Planck Institute for Social Anthropology, Halle/Saale, Germany)
Armando Guevara Gil (Director of Research, Universidad para el Desarrollo Andino, Huancavelica, Peru)
Han Vermeulen (Research Associate, Law & Anthropology Department, Max Planck Institute for Social Anthropology, Halle/Saale, Germany)
Annette Mehlhorn (Postdoctoral Research Fellow, Environmental Rights in Cultural Context Research Group, Max Planck Institute for Social Anthropology, Halle/Saale, Germany)
Abduletif Kedir Idris (Doctoral Candidate, Environmental Rights in Cultural Context Research Group, Max Planck Institute for Social Anthropology, Halle/Saale, Germany)
Bayar Dashpurev (Doctoral Candidate, Environmental Rights in Cultural Context Research Group, Max Planck Institute for Social Anthropology, Halle/Saale, Germany)
The project of translating The Oxford Handbook of Law and Anthropology into Chinese;
Why take an anthropological approach to the study of law in China?
How can research combining law and anthropology in China be further developed?
Law and anthropology in China: academic lineage, discourse, and potentials.
Below, we summarize the main points that emerged from the roundtable discussion.
The translation of the Oxford Handbook of Law and Anthropology into Chinese
After a round of introductions, the Chinese participants were given the opportunity to make brief impulse statements to jump-start the discussion. The ostensible starting point was the project of translating The Oxford Handbook of Law and Anthropology into Chinese. The Handbook, published by Oxford University Press in 2022, was initiated and supported financially and organizationally by the Law & Anthropology Department of the MPI. The Chinese translation is being organized by Weichen Wang in cooperation with a group of ten translators, including Tao Yin and Shunfeng Liu, who were present at the meeting. Five of the authors who contributed to the Handbook were also present at the meeting, including Marie-Claire Foblets (who was also the principal editor of the Handbook), Brian Donahoe, Bertram Turner, Dirk Hanschel, and Armando Guevara Gil.
The Handbook is the most recent and one of the most comprehensive contributions to the field of law and anthropology. The 50 chapters, all written by leading international scholars, provide brief overviews of the major debates in the field but, more importantly, extend the horizons of the field with regard to approaches, perspectives, topics, and future concerns. The Chinese version of the Handbook will make these contributions much more accessible to students in countries or regions where Chinese is an official language. Zhou Yong believes that the Chinese version of the Handbook will substantially improve the teaching and research of legal anthropology in hundreds of law schools and anthropology departments throughout China, and will have a lasting influence on legal practitioners. Both the challenge and the significance of the translation go beyond the bridging of a language barrier; it will entail a continuous dialogue among “scholars from different intellectual traditions”, which is one of the aims of the Handbook as expressed by the editors in the introduction (Foblets et al. 2022: 12). Biao Xiang noted that the Handbook’s comprehensive mapping of the issues, concerns, and thoughts will prove to be very helpful for lawyers, legal scholars, and anthropologists in China, pushing them to think in new ways and to develop deeper legal reasoning.
As the main organizer of the translation work, Weichen Wang confirmed that there is great interest among students and scholars in China to study not only the classic texts of legal anthropology, but to keep abreast of the cutting-edge scholarship as well. He expressed confidence that this translation will serve the knowledge needs of Chinese readers and be an occasion for developing and improving academic exchanges between China and other countries. Marie-Claire Foblets followed up on that idea, noting that the actual process of translation could be turned into an opportunity for productive exchange, as well as a useful pedagogical exercise for the Handbook authors. Listening to the challenges that translators from a different language and legal system face and working through some of the more problematic passages together could open up new horizons for the authors themselves. Such an exercise would need to be well prepared, however. Foblets suggested, for example, organizing three virtual meetings over the course of the following 12 months to discuss problems in translation and to probe issues such as the validity of comparison and the potential for unintended bias in the terminology that is used.
Why take an anthropological approach to the study of law in China?
The discussion then moved on to more general issues of law and anthropology in China. Yong Zhou listed a number of fields of research relating to law and cultural diversity where he sees great potential for Chinese scholars to contribute to global debates. These include, first and foremost, issues of group rights, group identification, representation, participation, the legal status of peoples, and their relations within the constitutional framework. Instead of starting from the principles and articles on equality among nationalities as delineated in the Chinese Constitution and the Regional National Autonomy Law, a more anthropological approach would go from the bottom up. Ethnographic fieldwork can provide valuable observations of people’s lived experiences of group identification, representation, and meaningful autonomy at the community level. Through anthropological study, concrete cases can be identified and used to describe and analyse how laws are implemented in the process of realizing the Constitution’s purposes and constructing a new social contract among groups and between groups and the state. Second are issues of individual rights and non-discrimination concerning ethnic, religious, and linguistic diversity. An interdisciplinary exploration at the intersection of law and anthropology has the potential to allow for a more nuanced understanding of disputes that arise when different worldviews and cultural practices come into contact. Anthropological perspectives have already proved to be indispensable in China when compiling cultural impact assessments for development projects in places where there are disputes over sacred natural sites. Incorporating mandatory social-cultural impact assessment into the environmental impact assessment law and, therefore, into the planning and implementation of development projects, will bring to light the different worldviews and ways of life that some stakeholders may not be aware of, and can thereby help forestall potential social conflicts. Anthropologists can also serve as expert witnesses or otherwise provide their expertise in judicial processes, giving judges and juries more complete and nuanced accounts on which they can base their decisions. A third domain in which an anthropological approach can contribute is the state’s measures for a green transition. China has been very active in taking mitigation and adaptation measures in the development of renewable energy (such as hydropower) and in conserving biological diversity on the lands of indigenous and local communities. These measures, however, have led to the displacement and resettlement of many local and indigenous communities. The use of anthropological methods at the fact-finding stage and for understanding local perspectives would go a long way towards establishing more collaborative, cooperative, and participatory governance that respects international conventions.
Hao Xiong explained how he has productively employed anthropological perspectives to observe and analyse religious practices and beliefs, the Chinese Communist Party, local courts, and the mediation processes. He described the mediation process among a Dai community in Yunnan, noting the “wisdom” of grassroots courts when it comes to balancing the various dimensions of conflict resolution and the possible social risks. In his view, regional diversity and the very fact of the existence of ethnic minorities are the two principal driving forces behind the anthropological study of law in China. The cultural diversity that exists in China demands that the implementation of state law in different cultural contexts be understood; a single, inflexible, strictly enforced state law cannot realistically be applied in a country with such variety and regional differences. Han Vermeulen, an associate of the MPI who specializes in the history of anthropology, agreed with Xiong’s analysis. Noting that the Handbook does not have a chapter concerning minorities in China, Vermeulen said that more legal anthropological attention should be paid to China’s minorities, and that doing so would be an important contribution to the anthropological literature.
Hao Xiong further argued that an anthropological approach is needed in China due to the dual identities of modern Chinese scholars: on the one hand, they are constructivists, meaning that they are the subjects who construct modern Chinese scholarship; on the other hand, the concept of constructivism, and therefore the very identity of constructivists, is a Western academic construct, which renders Chinese scholars the object of this construct. This has to do with the brief history of the ups and downs in teaching social sciences in China, most notably the second spread of Western learning to China that occurred following the reform and opening up policy in the 1980s (with the first spread being at the end of the 19th century). As a result, Chinese legal researchers nowadays tend to immerse themselves in the Western context, which effectively reduces their subjectivity in terms of the construction of legal research.
Xiangjun Chen discussed his observations, based on long-term fieldwork in Xinjiang, about the role and value of customary law among nomadic Kazakh societies in the Altai, the Kirgiz in the western Tianshan mountains, and Tajiks in the Pamirs. He found that customary laws regulate the day-to-day behaviour of these nomadic herders regarding the use of grasslands, deserts, and water, the hunting of wild animals, and food consumption. Many of these customary laws are supported by religious beliefs, such as limits on the use of firewood through the sanctification of tamarisk trees. They are also passed down through generations in the form of legends, stories, proverbs, and taboos, and are significant sources of local knowledge for ecological sustainability and environmental protection in the region. Chen emphasized the importance of strengthening the values and functions of these traditional norms, and expressed his concern about the difficulty of doing so under the current conditions of accelerating industrialization, marketization, and urbanization.
Shunfeng Liu addressed some of the methodological and practical aspects of taking an anthropological approach to promoting the recognition and accommodation of cultural diversity in law in China. In contrast to conventional normative legal analytical approaches, legal anthropology places a heightened emphasis on participant observation. This requires that researchers venture beyond the confines of their academic settings and immerse themselves in the field, actively observing legal phenomena and their associated challenges in real-life contexts, with the aim of coming up with pragmatic solutions. Over the past four decades, scholars epitomized by the likes of Yong Zhou, Suli Zhu, Hui Xie, and Qicai Gao have undertaken a plethora of enriching explorations in this vein. These scholars have embarked on journeys to ethnic minority groups in remote regions in south-western and north-western China, engaging in participant observation to detail the cultural mosaics within these locales. The advancement of legal anthropological research in China plays a pivotal role in redefining our recognition and awareness of cultural expressions and in comprehending the role of culture in societal governance. Over the past two decades, a series of scholarly discussions have been undertaken on the academic history and contributions of legal anthropology, and how they diverge from and converge with legal sociology. In the course of these endeavours, scholars have delved into the intricacies of cultural diversity. Nevertheless, the cumulative volume of knowledge generated within the realm of legal anthropology remains relatively modest, a fact that underscores the pressing need to further expand the breadth and depth of knowledge production through the promotion of Chinese legal anthropological research.
How can research combining law and anthropology in China be further developed?
Hao Xiong discussed how law in China can be studied from an anthropological perspective and explained the benefits of doing so. He prefaced his remarks by harking back to the processual approach or, as he called it, the “return to process”, which has characterized legal anthropological studies for at least the past half century. This process-oriented paradigm is what distinguishes the legal anthropological perspective from the traditional legal perspective, which is centred on norms and institutions and views law as a logical abstraction or a political arrangement. This traditional approach of legal studies, however, tends to ignore how a system or rules can be better implemented when the relevant affected people participate in the process. Through anthropological fieldwork this process can be discovered, and in this way an anthropological approach can complement legal research.
Reflecting on the existing role of customary law in Xinjiang as presented by Xiangjun Chen, Biao Xiang suggested that, as people do not separate out customary law from their everyday lives, we need to understand legal reasoning as an integral aspect of life that crystalizes in customary law, rather than treating customary law as a separate domain of life. Xiang mentioned the concept of “ecological recoverability” as an example of how notions embedded in life regulate human actions. In agriculture, there are common customary regulations about crop rotation and periodical fallowing. It is also a common customary restriction that people should not hunt and kill pregnant animals. What is the life wisdom behind these customary rules? This notion of “recoverability” is particularly important. Fallowing is encouraged to ensure that soil can recover its fertility. Pregnant animals are spared to ensure the continuous reproduction of animals. People did not start out by defining which actions are wrong and which are right, or whether a pregnant animal has more “rights” than other animals, or how the relationship between humans and nature should be legally regulated; rather, people think of the social and natural order through the notion of “recoverability”. This means that the loss of customary rules is not merely a loss of some rules or beliefs; it also represents the loss of a particular mode of reasoning in life. It would be a very productive and revealing exercise to collect such cases in China through ethnographic fieldwork, with a focus on what people on the ground actually did and said regarding these issues, and analyse them as legal questions. Based on this notion of “recoverability”, we could develop a larger framework that would encompass ecological healing and social relation “repair”. The Handbook presents excellent summaries of past and present debates on these and other relevant issues that could help guide the collection and analysis of data in China.
Yong Zhou suggested two possible ways to improve legal anthropology in China: first, by identifying certain key topics and developing legal ethnographic study with a focus on those topics; and second, by developing a descriptive-analytical framework using emic concepts based on particular phenomena within Chinese society together with analytical terms. For example, it is necessary to distinguish and understand various concepts of law in the Chinese Party-State context; only in that way can one understand how state law is made and implemented. Zhou also suggested that, when conducting ethnographic studies of legal issues among minority communities, researchers should critically build on the vast and rich body of data collected during the large-scale and long-term investigations of the historical and social situations of minority nationalities that were organized by the state in the 1956–1964 period. More than 140 reports were published, which include collections of cases in local courts and analyses of the difficulties of applying state law in disputes concerning minority customary law. Today’s researchers should familiarize themselves and engage with this rich trove of information, reflecting on the theoretical assumptions and methodological guidelines that informed them. These data provide a valuable foundation for exploring the concept of justice in diverse cultural contexts. The value of this approach extends beyond minority communities; there are also many disputes in China relating to migrant workers and women from ethnic minorities in the fields of labour law, family law, property law, etc., that would benefit from an approach combining law and anthropology.
Law and anthropology in China: academic lineage, discourse, and potentials
Referring to his chapter on legal anthropology in Russia in the Handbook (co-authored with Florian Stammler and Aytalina Ivanova), Brian Donahoe explained that there two trajectories of legal anthropology in Russia that do not overlap much and do not communicate with one another. The first and more established branch comes out of legal studies; it is highly theoretical and focuses on historical issues of the customary law of the non-Russian peoples of the Russian Empire and the Soviet Union regarding, for example, property rights. Legal anthropology as a subdiscipline of anthropology is a much more recent development in Russia, starting only in the mid-1990s, and has tended to focus on Indigenous peoples’ rights. But instead of tracing its roots back to the rich ethnographies written by Russian and Soviet scholars in the late 19th and early 20th centuries, which invariably included detailed descriptions of legal phenomena among the peoples of the Caucasus, Siberia, and Central Asia, this branch of legal anthropology in Russia appears to be more influenced by the Western lineage from Maine and Morgan to Malinowski, Gluckman and Bohannan, Hoebel and Llewellyn, Rouland, etc. Based on this comparison and the clear parallels between the development of anthropology in China and in Russia/the Soviet Union, Donahoe asked if there is a similar distinction between a legal studies branch of legal anthropology and an anthropology branch of legal anthropology in China. He also expressed the concern, shared by Marie-Claire Foblets and the other editors of the Handbook that, simply by virtue of being translated into Chinese, the Handbook could be seen as an imposition of Western understandings of legal anthropology on China. To the contrary, the hope of the editors is that the translation of the Handbook can serve to inspire the further development of a uniquely Chinese legal anthropology. With that in mind, Donahoe asked the Chinese scholars about the lineage, heritage, and paradigm of legal anthropology within the Chinese academic tradition.
In response to the question, Tao Yin outlined a four-stage process in the development of legal anthropology research in China. The initial stage was in the time of the Republic of China, in the 1930s and 1940s, when some works of Western legal anthropology were translated into Chinese. At that time, many Western anthropologists were studying “tribal” peoples and customary law, while Chinese anthropologists were studying Chinese society and minorities in the context of the state’s ethnic policy. Scholars from the Yanching School creatively applied anthropology to study Chinese ritual society and put forward certain basic concepts, such as “ritual order”, by way of contrast to the study of “tribal” law in the Western tradition. Since the establishment of the People’s Republic of China in 1949, the evolution of legal anthropology can be divided into three further stages. Starting in the 1950s, Marxism dominated all the social sciences. It influenced social investigations in the communities of minority nationalities in the following decades. In the 1990s, debates on the problem of applying the “state versus society” dichotomy in China inspired some important works on the particular situation in China regarding the penetration of the state into society and the interactions between state and society. From 2000 to the present, research has focused on the interaction of legal orders at the local, state, and transnational levels.
Regarding the comparison between Russia and China, Yong Zhou pointed out that, in addition to certain similarities to the two trajectories of legal anthropology in Russia, China had the additional influence of the Soviet model on the teaching of law and ethnology. In the 1950s, China abolished the teaching of anthropology and reformed legal education according to the Soviet model, and undertook research on minority communities based on ethnological theories and methods developed in the USSR. This kind of ethnology, which focused on ethnic minority groups and excluded the study of Han Chinese society, was the predominant approach in China from the 1950s to the 1990s. At the end of 1970s and the beginning of the 1980s, education in law and anthropology at universities was re-established after having been closed down for about two decades. Anthropology departments were established at Sun Yat-sen University (1981), Minzu University of China (1983), and Xiameng University (1984). Four law schools – in Beijing, Shanghai, Xian, and Chongqing – were also re-established in 1978. At the beginning of this new period of reform and openness, scholars in China tried to reconnect with the academic lineages of the 1940s. Zhou’s own translations of the legal anthropological works of E. Adamson Hoebel (US) and Masaji Chiba (Japan) into Chinese in the early 1990s were inspired by his desire to deconstruct the dominant Soviet-influenced theory on law and state taught in Chinese law schools.
Biao Xiang recalled that principal figures in the introduction of a cultural perspective into legal studies were Zhiping Liang and Suli Zhu in the 1990s. Important tasks in this regard include explaining how formal law is implemented at the grassroots level and how disputes regarding property rights are solved. At the grassroots level, one of the biggest questions is the definition of property rights, especially when it comes to the issue of township and village “enterprises”. These enterprises accounted for up to one third of China’s GDP in the late 1980s, yet the ownership of these enterprises is not clearly defined in law. Xiang observed that there are contradictory approaches to legal culture in China. One is legalism, whereby law is almost “fetishized” as the solution to all social problems, as represented by the common complaint that “we have problems because we do not have enough laws”. This is illustrated by the fact that in China today, like in the US, whenever there is a problem, people want to take it to court. On the other hand, people recognize that law is closely linked to power. Xiang’s earlier research on Zhejiang village in Beijing reveals how social order can be created without taking recourse to a centralized legal system through a kind of functional cause-and-effect chain embedded in the relationships between families and in social networks: “I have relatives, you have relatives. If you violate the agreement, I will mobilize my relatives to reach out to your relatives and shame you as a form of punishment.” According to Xiang, the implications of legal anthropology extend far beyond academic research, and can also be applied to the study of economic developments and political dynamics. Another peculiarity that always needs to be taken into consideration is the sheer scale of China. While its advanced technology is not necessarily always cutting edge, its application to such a large number of people – for example, AI and facial recognition – inevitably creates complications regarding issues such as the right to privacy. China not only provides a unique opportunity to use legal anthropology to study such issues, but also needs legal anthropological insights to deal with these complex dynamics.
Dirk Hanschel asked about the issue of the rights-based approach and discourse in Chinese society and culture, with its Confucian character. More specifically, when it comes to environmental rights, to what extent has the right to a clean and healthy environment been discussed as an individual right and/or as a group right? Xiangjun Chen responded that the right to a clean and healthy environment is a very new topic in China’s academic discussion. In response to rapid economic growth and increasing pressure for environmental protection, a new term – “ecological civilization” – was adopted in the amended Constitution in 2018. In view of this and related legislation and judicial practice, more research on a rights-based approach in practice from the perspectives of sociology and anthropology should be carried out in the future.
Following up on Hanschel’s question on environmental rights, Bertram Turner raised a number of more theoretical issues regarding the ongoing debates on the association of sociolegal studies with STS (science and technology studies) when it comes to addressing topics such as an extended legal personhood status for more-than-human entities, ecosystems, or landscapes. The normative questions and issues revolving around the Anthropocene and climate change affect the planet in its entirety and demand an exchange of views on a global scale. Chinese legal reasoning and the position of Chinese scholars on topics discussed in the framework of international organizations and epistemic communities, such as ontological-legal pluriversality, the law-and-technology nexus, and the decolonization of the legal universe, will certainly have a decisive impact on future trajectories in legal anthropology in a politically multipolar world. The participants acknowledged that these issues are of great importance in the Chinese context as well, and are being actively addressed by scholars in China.
Abduletif Kedir Idris noted that China is relevant for his research for two related reasons. First, as an Ethiopian human rights scholar, he is interested in China as a comparative model. Because Ethiopia is practically a one-party state, the “legal culture” there is similar to China’s and, as such, offers a fruitful comparative exercise. The Chinese model of governance and development has inspired the Ethiopian ruling class for several decades now. Despite adopting a constitution with a generous list of liberal rights, when it comes to practice, the so-called “Eastern model” of human rights that privileges socioeconomic rights tends to be more dominant. More specifically, he believes that his current research on the protection of environmental rights in the context of state-led infrastructure development projects, including large hydro dams in peripheral regions, could benefit from case studies of similar projects in China. Second, as an economic superpower, China has a great deal of direct influence on governance in Africa, including in Ethiopia. In addition to serving as an ideological model for environmental governance, China finances a significant proportion of infrastructure development in Ethiopia. Moreover, Chinese multinational corporations are directly involved in all sectors, including in the construction and operation of these infrastructures. Idris expressed interest in what this influence means for human rights protection more broadly. For these reasons, he believes that collaboration with Chinese scholars would be extremely productive.
In response to Idris’s comments, Yong Zhou highlighted that future legal anthropological research should be carried out not only on issues in China, but also, in view of its role on the global stage, on China and the impact of its global influence. As a hydropower superpower state, China is involved in more than 300 hydropower projects in other part of the world. The issues discussed today in and/or on China reveal that China is not only a region or a place that should be added to the list of places that legal anthropologists study; it is also an important part of the dynamic, relational, and plural global normative space. Increased collaboration between Chinese scholars and scholars in the rest of the world will not only advance the China-related study in law and anthropology; it will also challenge and contribute to existing perspectives, approaches, theories, and methodologies – in short, to the process of collaborative knowledge production more generally. Xiong Hao seconded the idea of further study on China, specifically referring to the lack of anthropological research on the Chinese Belt and Road initiatives and projects worldwide. Armando Guevara Gil suggested that legal anthropological research in and on China should be complemented with legal ethnographies of the diasporic Chinese communities that live all over the world (e.g. in the US, Brazil, Mexico, Peru). This effort will amplify the research agenda, as these communities preserve distinctive but transformed Chinese traits, and maintain important ties with the mainland.
Marie-Claire Foblets brought the discussion to a close, once again reiterating her offer to organize meetings with the translators and some of the Handbook’s authors to discuss how best to translate and express certain concepts and ideas. Noting that, despite the editors’ best efforts and intentions to balance issues and scholars from the Global South and the Global North in the Handbook, they met with only limited success in this regard, and there is still a great need to give voice to those unrepresented scholars who have different approaches and innovative ways of thinking. She concluded by expressing her hope that the translation of the Oxford Handbook into Chinese will inspire a new generation of Chinese scholars, who could then perhaps take the lead in putting together a new Oxford handbook, one that would present the law and anthropology nexus from the perspective not only of Chinese scholars, but of other scholars as well whose voices have heretofore been underrepresented on the global stage.
Correction Statement
This article has been corrected with minor changes. These changes do not impact the academic content of the article.