Lecture 3: Globalization of American Law

On October 21, 2022, the IIAS held the third lecture of the “Globalization of Law” Series for the fall semester, titled “Globalization of American Law,” at Room 205, Central Main Building, the speaker was Mr. Lu Nan, Associate Professor of Tsinghua University Law School, and a member of the IIAS Teaching Committee, and the host was Ma Yue, Assistant Professor of IIAS. The lecture was attended, offline and online, by IIAS faculty members and doctoral students, scholars and students from outside the Institute at home and abroad, and others interested in the topic.
The lecture was divided into four parts: the four typical examples listed in “The Globalization of American Law: Typical of and Reflection from the Perspective of Jurisprudence” (by Prof. Gao Hongjun), the background and motivation of the globalization of American law, the inspirations and lessons learnt in the US promoting the globalization of its law, and reflection on China’s “foreign assistance.”

Assoc. Prof. Lu Nan began by introducing the four typical examples listed in Prof. Gao’s paper. The first was the two rounds of “southward crusades of law,” that is, the export of American law to Latin America. He first summarized three characteristics of Latin American legal system: its constitution and other public law were affected by the American law while its private law by European law, and its legal profession and litigation model adopted legal formalism of the civil law system. In the context of the legal development movement in late 20th century, the US law was exported to Latin America mainly in two periods: from the 1960s to mid-1970s, and then from mid 1980s to the early years of the 21st century. In both periods, the export had one thing in common: the shift from the liberal view of law to the consensus of Neoliberalism on economy, on weak states, on democracy and on judicial governance. A primarily goal was to replace the prevailing civil law in Latin America with American law.

The second typical example was the “Trojan horse” in the New Lex Mercatoria, that is, American lawyers who used the “Trojan horse” strategy to break into the New Lex Mercatoria and cross-border arbitration. As a result, large American law firms dominated the New Lex Mercatoria, scaled it up, and promoted its internationalization and commercialization.
The third was the takeoff of the “Minerva’s owl,” that is, the US preying on the law reform of countries in transition. In the context of social transformation in Eastern Europe and former Soviet Union, it seized the opportunity to export law, including American law and legal ideas such as general value of rule of law, constitutional principles and institutions, economic law and commercial law.

The fourth was the Oedipus of the New World, that is, the American law’s counterattack on European law. The word “counterattack” was used to highlight the contrast: in its early stage, American law was deeply influenced by European law, whereas since economic globalization took off in late 20th century, European law has been learning from American law, and greatly shaped by the latter in public law, private law, judicial system, law education, etc.

Then, Dr. Lu explained the background and drives of American law export. He believed that America’s political and economic strength and the American law’s rising status in the world paved a solid foundation. Meanwhile, the American law was “hybrid” and has absorbed many laws of the world. Besides, developing countries needed to introduce the laws of developed countries to serve their economic reform, integration into globalization and political institutional reform.

In the third part of the lecture, Dr. Lu summarized what we could learn from the development of American law. First, law hegemonism is criticized by scholars all over the world. Second, the linear development outlook and the theory of law as instruments embodied in American law are criticized, because the relationship between law and other fields of society is extremely complex. Third, the academia is divided by law transplant: some are optimistic and some pessimistic about it, but they agree that it is not an either-or question, i.e. whether law is transplantable or non-transplantable, but a very complex process. Fourth, the globalization of law is a cross-cultural dialogue, in which cooperation and confrontation co-exist, and how to handle their relationship is a key question to answer in promoting the globalization of law.

Dr. Lu ended the lecture with the legal problems encountered in China’s foreign aid and countermeasures. He noted that as China grows from strength to strength, China’s foreign aid in the narrow sense (i.e. interest-free loans, concessional loans, and gratuitous aid) has amounted to a huge amount and covered a wide range of areas. But some of the loans are hard to recover and some overseas projects are paralyzed, among other problems. This happened because China has long prioritized the economic aspects of the assistance but ignored relevant legislation and the design of legal frameworks. China should learn from the US foreign-aid law in the post-World War II period, set up a comprehensive research team, conducted extensive field surveys, and developed a mature risk evaluation mechanism, to mitigate risks with foreign aid.

At the Q&A session following the lecture, Dr. Lu and the audience had a heated discussion about the respective advantages of English common law and American common law.

Lu Nan, associate professor of the Law School, and a member of the Education Steering Committee of the Institute for International and Area Studies, Tsinghua University. He obtained his Ph.D. in Law from the Law School of Tsinghua University. His research fields include comparative law and legal culture, theory of law and sociology of law, and he is mainly engaged in the study of basic theories of comparative law, globalization of law, law and development issues. His papers and articles include “The Pros and Cons of Comparative Law in the Age of Globalization,” “The Origin and Evolution of the World Rule of Law Index,” “The Status and Role of Non-Western Legal Culture in Comparative Law Teaching,” and “Anonymous Lex Mercatoria: New Trend of Law Transplant in the Age of Globalization,” and he has co-edited A Reader in Comparative Law, A Reader in Jurisprudence, and Globalization of Law: China and the World, etc.

Text editor: Ding Ruilin
Proofreaders: Dong Hui, Ma Yue
Typesetting editor: Cheng Yao