New York University Journal of International Law and Politics, Vol. 46:1 Online Symposium

This post is part of the NYU Journal of International Law and Politics Vol. 46, No. 1 symposium. Other posts in this series can be found in the related posts below.

The NYU Journal of International Law and Politics is proud to be partnering with Opinio Juris once again for an online symposium. This symposium is a discussion of Professor Jedidiah J. Kroncke’s article Property Rights, Labor Rights and Democratization: Lessons From China and Experimental Authoritarians, which was published in the NYU Journal of International Law and Politics, Volume 46, issue No. 1.

In this article, Professor Kroncke argues that a fundamental paradox exists in efforts to promote democratization abroad that emphasize property rights to the exclusion of labor rights and that this paradox emerges from the connection between property rights and foreign legal development alongside a renewed emphasis on independent unionization in democratization theory. The Article explores the paradox in action through the willingness of modern authoritarian regimes, particularly China, to experiment with rule of law reforms, and creatively so in the realm of property rights, while being uniformly repressive of associative labor rights.

Over the next two days, a number of legal scholars will offer their thoughts on the topic, including:

Tuesday, May 13, 2014:

• Cynthia Estlund – New York University School of Law
• Eva Pils – Chinese University of Hong Kong, Faculty of Law

Wednesday, May 14, 2014:

• John K.M. Ohnesorge – University of Wisconson Law School
• Jedidiah K. Kroncke – Fundação Getulio Vargas Law School at São Paulo

Below is an introduction to the symposium by Professor Jedidiah Kroncke:

I want to open by thanking the editors at NYU JILP for their efforts in organizing this symposium and Opinio Juris for hosting. I am also very thankful for the opportunity to have scholars whose work I regard highly subject the article to critical scrutiny.

As I look forward to the commentators’ engagement with the paper’s substantive claims, I thought I would give a simple preface to make explicit some of the methodological motivations that shape the piece.

Much of my work to date has focused on the historical evolution of comparative law in the US, specifically through its relationship to China and the field popularly known as law and development. I believe that the distinction between these two fields is inherently illusory and counterproductive, especially when such distinction artificially segregates the study of certain foreign legal systems from others and in doing so presumes a certain common sense about from where and to where legal knowledge flows globally. Further, I see it as a categorical error that the monadic study of foreign legal systems is de facto labeled “comparative law” when it is not analytically comparative or, worse, implicitly employs an uncritical view of US or “Western” law.

In the article I attempt to present several angles from which to think about how Chinese legal experience relates both to US law, both domestically and in the literature on legal development and democratization. As such, I try to show how US interpretations of Chinese property and labor rights reveal more about internal US legal developments than are driven by on-the-ground reality in China. More specifically, the gradual evisceration of the link between democratic norms and workplace regulation in the US has blinded many to understanding the Chinese experience on its own terms, especially to the extent that it subverts assumptions about what legal institutions are presumed constitutive of democratic governance. All of which has to be situated within global developments beyond this individual comparative dyad.

Thus, instead of falling into a retelling of some version of the deficiencies of Chinese law, or claiming which legal system should learn from which under a best practices rubric, the article tries to engage in a form of comparative developmental analysis that can form the basis of truly dialogic intellectual exchange. As such, the provocation that there is a growing conceptual and practical convergence in the regulation of work in the US and China, and that such a convergence is decidedly ademocratic, is one that points to a problem with potentially different national solutions even when in constructive common conversation.

I hope therein that the paper presents an example of comparative law that speaks both to the particular and the universal, even when not examining transnational spaces where the direct interaction of legal systems can be observed. If the piece finds some ground between purely humanistic invocations of the enlightening potential of studying foreign law and the seductive pragmatism of depoliticized arguments about legal transplantation, then I am happy to have it straddle this in-between