Comparative Legal Studies in China
The Comparative Method in Chinese Legal History
Comparative legal studies have shaped Chinese law from the late Qing dynasty to the present. The systematic use of the comparative method — studying foreign legal systems to inform Chinese legal development — distinguishes Chinese legal modernisation from the organic evolution of Western legal systems. Chinese legal reformers have looked to foreign models as blueprints, as cautionary examples, and as sources of doctrinal inspiration.
The comparative method in China has been characterised by a tension between universalism (the belief that law follows developmental stages and that China must adopt the legal institutions of advanced states) and particularism (the insistence that Chinese law must reflect Chinese conditions, culture, and political structure). This tension has shaped every period of comparative legal engagement.
Shen Jiaben and the Late Qing Reforms
Shen Jiaben (沈家本, 1840-1913) is the foundational figure in Chinese comparative law. As the Minister of Justice in the late Qing dynasty, Shen presided over the legal reform programme that produced the first draft of a modern Chinese legal code. Shen’s comparative method involved the systematic study of Japanese, German, French, and English law, and the selective adaptation of Western legal institutions to Chinese conditions.
Shen’s reform programme included: the translation of Japanese and European legal codes; the establishment of the Legal Codification Bureau (Falü Bianzuan Guan); the abolition of the traditional Chinese legal punishment system (including the replacement of “lingering death” with execution by shooting); the reform of the judicial administration to separate judicial from administrative functions; and the drafting of the Da Qing Xing Lü (the Great Qing Criminal Code), which adopted Western criminal law principles while retaining elements of Chinese legal tradition.
Shen Jiaben’s comparative methodology is expressed in his General Principles of Legal Reform, which advocated for the progressive adoption of Western legal institutions while maintaining Chinese sovereignty and cultural identity. Shen’s approach — selective adaptation rather than wholesale reception — established a pattern that has persisted in Chinese comparative legal engagement.
Reception of German Civil Law
The reception of German civil law is the most significant instance of legal transplantation in modern Chinese history. The German Civil Code (BGB) Bürgerliches Gesetzbuch was adopted as the primary model for the ROC Civil Code (1929-1931) and, through the ROC Civil Code, influenced the PRC’s civil law development.
The German influence operated through the Japanese intermediary. Chinese legal scholars of the early Republican period studied law in Japan, where the German-influenced Japanese Civil Code was the model. The first Chinese civil law scholars — including Wang Chonghui (王宠惠), Wu Jingxiong (吴经熊), and Zhong Zhao (钟兆) — had studied in Europe and the United States and were familiar with German and French civil law.
The BGB’s influence is evident in the structure of the ROC Civil Code: the pandectist division into General Principles, Obligations, Rights over Things, Family, and Succession; the abstract conceptualism of the General Principles; and the specific doctrinal provisions on juristic acts, representation, and prescription. The PRC’s General Principles of Civil Law (1986) and the 2020 Civil Code bear the imprint of the German pandectist tradition, though the political and institutional context is fundamentally different.
Socialist Legal System with Chinese Characteristics
The contemporary period of comparative legal engagement is framed by the concept of a socialist legal system with Chinese characteristics (shehuizhuyi fazhi tixi). The concept, central to Xi Jinping’s rule-of-law discourse, asserts that Chinese law is neither a continuation of the Western civil law tradition nor a simple adaptation of Soviet socialist law, but a distinct legal system that reflects China’s political, economic, and cultural conditions.
The socialist legal system with Chinese characteristics incorporates elements from multiple legal traditions. The civil law — particularly contract, property, and tort — shows the continuing influence of German and Japanese civil law. The constitutional and administrative law reflects the Soviet model of state organisation, modified by Chinese innovations including the Chinese People’s Political Consultative Conference and the system of people’s congresses. The economic law, particularly the corporate and securities regulation, draws on US and UK models.
Comparative legal study in this framework is explicitly instrumental. Foreign legal institutions are studied not because of their intrinsic normative appeal but because they may serve China’s developmental objectives. The SPC’s research offices and the Chinese Academy of Social Sciences’ Institute of Law conduct systematic comparative studies to inform legislative and judicial reform.
Reception of Other Legal Traditions
Chinese comparative legal study has expanded beyond the German model to include engagement with the common law, European Union law, and international law.
Common law: China has studied common law institutions — particularly commercial law, securities regulation, and constitutional judicial review — though the common law has not been adopted as a comprehensive model. The Hong Kong’s continued common law system under “one country, two systems” provides a laboratory for Chinese comparative study of the common law. The SPC has studied Hong Kong’s case law system in developing the Chinese guiding cases system.
EU law: European Union law has been a significant comparative reference for Chinese economic regulation. The EU competition law, data protection law (GDPR), and product safety regulation have informed Chinese law in these areas. The 2021 Personal Information Protection Law and the 2022 revision of the Antimonopoly Law both show EU influence.
International law: China’s engagement with international law has grown substantially since accession to the WTO. Chinese international law scholars have produced systematic comparative studies of WTO law, international investment law, and international human rights law, though the influence of international law on domestic Chinese law remains limited.
East Asian Legal Tradition
The East Asian legal tradition is a concept that has gained traction in Chinese comparative legal scholarship. The concept identifies common features of the legal systems of China, Japan, South Korea, and Taiwan — including the civil law foundation, the role of Confucian values in legal culture, the preference for mediation over adjudication, and the strong role of the state in economic regulation.
Chinese scholars have used the East Asian legal tradition concept to argue for a distinctive East Asian approach to law that is neither Western nor uniquely Chinese. The concept has been deployed in debates about Asian values, legal development, and the reception of Western law.
The limits of the East Asian legal tradition concept are also recognised. The differences between Chinese socialist law, Japanese liberal democracy, South Korean constitutionalism, and Taiwanese democratic transition are at least as significant as the commonalities. The concept serves more as a framework for comparative study than as a descriptive category.
Legal Transplant
The concept of legal transplant (fazhi yizhi) has been central to Chinese comparative legal scholarship since the late 1990s. Drawing on the work of Alan Watson and other comparative law scholars, Chinese legal scholars have analysed the conditions for successful legal transplantation and the factors that cause transplanted legal institutions to fail or to operate differently in the Chinese context.
The legal transplant scholarship has identified several factors that influence the success of transplantation: the compatibility of the transplanted institution with Chinese legal culture; the existence of supporting institutional infrastructure; the political will for implementation; and the availability of trained legal personnel.
Conclusion
Comparative legal studies in China have evolved from Shen Jiaben’s late-Qing selective reception through the German civil law reception of the Republican period to the contemporary instrumental engagement with multiple legal traditions. The comparative method has been a constant feature of Chinese legal development, used to inform legislative reform, judicial practice, and legal education. The concept of a socialist legal system with Chinese characteristics frames the current comparative engagement, asserting China’s distinctiveness while continuing the tradition of learning from foreign legal systems.