A very interesting post on the China Law Discussion list by Neysun A. Mahboubi a Visiting Assistant Professor at the University of Connecticut School of Law in the US.
He’s trying to determine the best methods to study and analyse the current Chinese legal industry / market and we thought that some of our readers who aren’t members of the China Law Discussion list might be able to offer advice and for the rest of us he gives us some useful methodologies for researching China’s legal market and systems.
He writes:
I’d like to solicit list members views on some methodological questions that I?ve been reflecting on lately, namely:
(1) By what methods do we, as comparativists studying Chinese law, acquire information about our subject?
(2) How should we prioritize among these methods? and
(3) How do our methods compare with how other legal scholars approach their subjects?
On the first question, it seems to me there are six main information gathering techniques that are utilized in our field, which I list
below, in no particular order, along with some notes.? They are:
(1) Personal interviews with Chinese legal actors. [Notes:? Emphasis on personal interviews may be one of the distinguishing features of comparative scholarship on Chinese law, premised on the notion that formal legal materials are not sufficient for developing a full, accurate picture of the Chinese legal system inaction.? Among the issues posed by this technique are:
(i) expense[requires ability to travel to and within China, introductions, etc.],
(ii) selection bias [why are these particular views privileged?], and
(iii) confidentiality [OK to cite names, make interview notesavailable for inspection?].
(2) Reading media reports.
[Notes:? Also a distinguishing feature of comparative scholarship on Chinese law, though some degree(s) less unique than reliance on
personal interviews.? Importance has probably increased in recent years, with relative opening-up of Chinese media.? A key issue is
filtering: how to keep up with, and sift through, massive amount of information that is being generated.]
(3) Large-scale surveys.
[Notes:? Hallmark of work that seeks to identify broad-based attitudes towards, and popular experiences of, the Chinese legal system.? Not
nearly as prevalent as in other fields, but beginning to appear in scholarship on Chinese law (albeit perhaps more by sociologists and
political scientists studying Chinese law than by traditional legal scholars).? A key issue is capacity:? takes a certain amount of training to know how to do this properly, crunch the numbers, etc.]
(4) Reading formal legal materials.
[Notes:? This could include statutory materials; judicial decisions; and legal scholarship produced by Chinese scholars for Chinese audiences.? Certainly, there is a rich vein of comparative scholarship that focuses on the former (e.g. analysis of new laws and regulations).? There has not been nearly the same amount of attention paid to judicial decisions, for obvious reasons, but that may be changing.? Most interesting to me, however, is that I don?t think we pay nearly as much attention to ?indigenous? legal scholarship as do other comparativists.? This may well be defensible.? But it is still worth noting, and thinking about.]
(5) Reading comparative scholarship on Chinese law.
[Notes:? The main thing to note here is the exponential growth in this literature over time.? Some of this growth was documented in Stanley
Lubman?s terrific 1991 American Journal of Comparative Law article on “Studying Contemporary Chinese Law: Limits, Possibilities and Strategy? — and of course the trend is even more markedly pronounced in the 20 years since that article was published.]
(6) Drawing on comparative scholarship generally.
[Notes:? This is a bit of an awkward category, and not quite as evident as those above.? I decided to include it in order to underscore the following relatively banal point:? there are many aspects of the Chinese legal system that are not unique to China, but borrowed from elsewhere; so it?s necessary to have some deeper knowledge of the roots of these borrowed elements; otherwise, you run the risk of overly exoticizing or otherwise misunderstanding those elements.]
Assuming that I have adequately captured the range of information gathering techniques ? and please let me know your thoughts ? my
second question has to do with the relative prioritization amongst these methods.? Probably, we should all be good at most if not all of
the methods I?ve listed.? But resource and time constraints necessitate some trade-offs.? The most ecumenical approach might be to say that every cog in the machinery of comparative scholarship on Chinese law (i.e. each one of us) can contribute something different, and it all sorts itself out in the aggregate.? But that also may be something of a cop-out, ultimately leading more to confusion than clarity.
Of course, other comparativists ? and, indeed, legal scholars generally ? face many of the same questions.? But I think there *may*
be some unique inflections in our particular field.? In the relative emphasis on personal interviews and media reports, for example; and in
the *relative* disregard of legal scholarship produced by Chinese scholars for Chinese audiences.? (Also, comparative scholars of
Chinese law have not yet produced, to the best of my knowledge, very much of the kind of high-end, quantitatively rigorous data analysis
that is taking hold in the American legal academy generally; in part, no doubt, because of difficulties in obtaining comparable data sets.)
What are the consequences of these differences, I wonder?? And are these differences likely to persist for the foreseeable future?
Again, I?d be grateful for your thoughts and comments on this topic.
Neysun A. Mahboubi
Visiting Assistant Professor
University of Connecticut School of Law
65 Elizabeth Street, Hartford, CT 06105
Tel.: 860.570.5107;? Fax: 860.570.5242
Email: [email protected]
