University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 2021 The Chinese Advantage in Emergency Law Ugo Mattei UC Hastings College of the Law, [email protected] Guanghua Liu Emanuele Ariano Follow this and additional works at: https://repository.uchastings.edu/faculty_scholarship Recommended Citation Ugo Mattei, Guanghua Liu, and Emanuele Ariano, The Chinese Advantage in Emergency Law, 21 Global Jurist 1 (2021). Available at: https://repository.uchastings.edu/faculty_scholarship/1842 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Global Jurist 2021; 21(1): 1–58 Ugo Mattei, Liu Guanghua and Emanuele Ariano* The Chinese Advantage in Emergency Law https://doi.org/10.1515/gj-2020-0032 Published online August 3, 2020 Abstract: This Article has a twofold purpose. On the one hand, it offers compar- ative materials for an informed discussion of COVID-determined emergency law in China and Italy by assessing its normative implications and political genealogy. On the other hand, it explores the essential contiguity between the ‘state of exception’ triggered by the pandemic and the possible geopolitical shifts in global legal hegemony in the actual phase of surveillance capitalism which is witnessing a decline of law as a form of social organization and its replacement by the pre- dictive models elaborated by technology. In this respect, the traditional Western iconography has long described the Chinese legal tradition as a “law without law”, a despotic regime with intrusive population surveillance whose distance from the Western paradigm is deemed almost unbridgeable. And yet the legal response to coronavirus both in Europe and in the U.S. somewhat replicates the allegedly distant Chinese model in terms of restrictions and surveillance mechanisms which are being deployed to counter the crisis in the face of a formal commitment to the rule of law. This Article concludes that the emerging pre-eminence of the “rule of technology” over the “rule of law” in a critical event of historic proportions like a pandemic should and will set the future agenda of comparative studies in a double direction. On the one hand it calls for a truly critical reconsideration of role of law in society which in turn impels to rethink the hold of the liberal constitutional model and the obsolescence of traditional legal taxonomies. On the other hand, it The Article is the outcome of authors’ conversations. However, Ugo Mattei drafted Sections 1 and 4; Liu Guanghua Section 2.1; Emanuele Ariano Sections 2.2 and 3. The Authors are grateful to Collegio Carlo Alberto for general funding of this research project. *Corresponding author: Emanuele Ariano, Faculty Member and Deputy Academic Coordinator, International University College of Turin, Turin, Italy; and Research Fellow, Bocconi University, Milan, Italy, E-mail: [email protected] Ugo Mattei: Distinguished Professor of Law and Alfred and Hanna Fromm Chair in International and Comparative Law, U.C. Hastings, San Francisco, USA; Professor of Civil Law, University of Turin, Turin, Italy; and Fellow of Collegio Carlo Alberto and Academic Coordinator, International University College of Turin, Turin, Italy Liu Guanghua: Professor of Law, University of Lanzhou, Lanzhou, China; and Director of the “Center for Italy Studies”, Lanzhou University, Lanzhou, China, supported by the “Fundamental Research Funds for the Central Universities” of Lanzhou University and the “National and Regional Research Project of Ministry of Education” 2 U. Mattei et al. might point to the emergence of an unexpected Chinese legal leadership, deter- mined by the progressive undoing of the Western legal and political narratives whose backbone has been relentlessly eroded by decades of neoliberalism and populism. Keywords: comparative law, coronavirus, state of exception, global hegemony, legal taxonomies. 1 The State of Exception and the New Legal Order This paper has a double purpose. On the one hand, it offers comparative materials for an informed discussion of COVID-determined emergency law in China and Italy. On the other hand, it predicts a change of hegemony in global legal lead- ership, where China, unimpaired by the Western capitalist rhetoric of the rule of law whose democratic decay is manifest in the rise of authoritarian legalism and political populism, will set the standards of a global technological law, beyond traditional western narratives of freedom and dignity,1 with sociopolitical and legal implications that should be looked through a critical lens. It thus seems a proper moment to apply some tools of critical comparison to the unfolding global saga determined by the spread of COVID-19 across the world.2 The declaration of the “pandemic” nature of this epidemic by a UN scientific organism such as the World Health Organization (whose integrity and insulation from corporate influence has been questioned in the past)3 can be read as the proclamation of a global “state of exception”, that has been followed by specific legal interventions by all but every country in the world.4 Thus, if the famous notion propounded by German Nazi jurist Carl Schmitt, according to which the sovereign is the one who can proclaim the “state of exception” is correct,5 we can now say that this crisis is for the first time showing at play a global sovereign whose authority, rather than political, is indeed “scientific”. Almost two decades ago, the senior Author of this Article, in a paper devoted to the HIV contaminated crisis due to blood transfusions, introduced the tools of 1 See Burrhus F. Skinner, Beyond Freedom and Dignity (1971). 2 See Ugo Mattei, Comparative Law and Critical Legal Studies, in The Oxford Handbook of Comparative Law 805 (Mathias Reimann & Reinhard Zimmermann eds., 2nd ed., 2019). 3 Leo W. J. C. Huberts, Integrity: What it is and Why it is Important, Public Integrity 1 (2018). 4 See https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the- media-briefing-on-covid-19—11-march-2020. 5 See Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [2nd rev. ed., 1934] (George Schwab transl., 2005). On the notion of “state of exception”, see also Giorgio Agamben, State of Exception (Kevin Attell transl., 2005). Advantage in Emergency Law 3 distress-based path dependency for the critical understanding of comparative legal change.6 In 2007, globally acclaimed journalist and activist Naomi Klein, introduced the notion of “Shock doctrine” pointing at the capacity of capitalism to turn disasters in its own benefit.7 Later on, the concept of “emergency-based predatory capitalism”8 was deployed to discuss the use of “rule of law” narrative as denial of the political nature of humanitarian intervention. The dark side of human rights9 has been unveiled as the engine of ongoing Western efforts of “plunder”.10 Today a new interesting tool of critical discussion, “surveillance capitalism”, has been introduced, which points at the 2001 attack to the twin towers in New York City as an emergency-based turning point in current capitalist developments.11 Deploying these tools, this paper explores the metamorphosis occurring in the comparative image and role of Chinese law that is taking place because of the global pandemic and entrance in the age of surveillance capitalism. The thirty-year long dismissal of China as “lacking the rule of law” might be finally over, not so much because China moved genuine steps in that direction, but because the West dismissed any attempt to be faithful to its own narrative.12 The decline of credibility of Western legality after 9/11 is no marginal factor in the historical change of hegemony that the epidemic might have triggered. Of course, as every form of hegemony,13 also the one of Western lawyers in China was possible only because (most of) the Chinese legal profession has internalized the idea of its own “lack”14, facilitating the reproduction of “legal orientalism” in comparative law.15 As 6 See Ugo Mattei, Legal Systems in Distress. HIV Contaminated Blood Path Dependency and Legal Change, Global Jurist 1 (2001). 7 See Naomi Klein, The Shock Doctrine: The Rise of Disaster Capitalism (2007). 8 See Ugo Mattei, Emergency-Based Predatory Capitalism. The Rule of Law, Alternative Dispute Resolution and Development, in Contemporary States of Exception: The Politics of Military and Humanitarian Interventions 89ff. (Didier Fassin & Mariella Pandolfi eds., 2010). 9 See David Kennedy, The Dark Side of Virtue: Reassessing International Humanitarianism (2004); Id., The International Human Rights Movement: Still Part of the Problem?, in Examining Critical Perspective on Human Rights 19 (Rob Dickinson, Elena Katselli, Colin Murray & Ole W. Pedersen, eds., 2012). 10 Ugo Mattei & Laura Nader, Plunder: When the Rule of Law is Illegal (2008). See also Mauro Bussani, Deglobalizing Rule of Law and Democracy: Hunting Down Rhetoric Through Comparative Law, 67 Am. J. Comp. L. 701 (2019). 11 Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (2019). See infra Section 3.2. 12 See e. g., Randall Peerenboom, China’s Long March Toward the Rule of Law (2002). 13 See Ugo Mattei, A Theory of Imperial Law: A Study on U.S. Hegemony and Latin Resistance,10 Ind. J. Glob. Legal Stud. 383 (2003). 14 See Jedediah J. Kroncke, The Futility of Law and Development. China and the Dangers of Exporting American Law (2016). 15 See Teemu Ruskola, Legal Orientalism. China, the United States, and Modern Law (2013). 4 U. Mattei et al. scholars, we have no stake nor agency, of course, to reverse hegemony in law. We only have a duty to recover some less ideologically tainted approaches in comparing the self-perceived Western democracy with the self-perceived Chinese socialist model.