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61 Va. J. Int'l L. Online 1 (2020-2021)

handle is hein.journals/vajoillw61 and id is 1 raw text is: ESSAY Was Helping China Build Its Post-1978 Legal System A Mistake? JEROME A. COHEN* Some thoughtful observers argue that the American policy of cooperation with post-Mao China in developing its legal system has proved a failure. They claim that our engagement set out to produce a democratic, rule of law China, but instead enabled a Communist dictatorship to become increasingly repressive at home and a threat to both world peace and the values we cherish. At the same time, Amer- ica's post-1978 legal cooperation with China has come under attack on the grounds that we carried it out in the wrong way-that our legal efforts in China reflected a growing and misguided faith in the export of American law. According to this view, the Law and Development movement was an erroneous, missionary-style attempt to export American law that ultimately proved futile. Indeed, post-'78 Ameri- can efforts in China have been deemed Exhibit A in the indictment of the modern Law and Development movement. This Essay evaluates these claims and rejects both in qualified fashion. Given the international situation at the time and the Cultural Revolution from which the PRC was seeking to emerge, legal coop- eration with China was politically and economically wise. It helped to produce a coherent national legal system that improved the lives of the Chinese people and their country's relations with the world through domestic economic progress and foreign business coopera- tion. To be sure, it did not lead to a democratic, Western-type rule of law that protects political and civil liberties, but that was not our ex- pectation. Those of us who actively participated in this law reform effort hoped only that respect for due process values and an independ- ent legal profession might develop as a byproduct. We were eager to learn what three decades of Communist experi- ence had contributed to China's legal system, only to find that our hosts had little good to say about their own system's accomplishments and no interest in and little knowledge of the pre-1949 Chinese legal systems. What we did learn about early PRC largely related to crimi- nal law and confirmed the accuracy of Western indictments of Chi- nese Communist injustice. Sadly, our generally successful response to PRC requests for legal cooperation has not even today diminished the abiding and prominent Chinese Communist preference to pursue regime goals via arbitrary detention rather than due process. True comparatists must acknowledge this fact. * Professor of Law and Founding Director, US-Asia Law Institute, NYU Law School; Adjunct Senior Fellow for Asia, Council on Foreign Relations.

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