[by Stanley Lubman, WSJ, China Real Time Report, Nov. 4, 2009] --

As part of our ongoing series of commentary from leading experts in their respective fields, Stanley Lubman, a long-time specialist on Chinese law, writes a letter to President Obama on the eve of his visit to China this month. Mr. Lubman teaches at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).

Dear President Obama:

I missed the opportunity to meet you when I taught at the Harvard Law School about Chinese law, but I am seizing the chance to address you in this blog before you go to China. I have some thoughts that you should keep in mind about what the current state of Chinese legal institutions might tell you about the state of China itself and how the U.S should regard both — and what we can do to help.

Chinese law, like China, is a work in progress.

China rose from social and economic wreckage to become the nation that has grown faster over a thirty-year period than any other nation in history. Within such a short period, it would have been impossible anywhere to create a functional legal system—a framework of institutions that defines the limits of individual, organizational and government conduct within a network of rationally applied and publicly ascertainable rules. Chinese law has been and is evolving, albeit uncertainly. Deng Xiaoping’s apt description of economic reform as “crossing the river by touching the stones” is well-known, as are the shrinking of the state-directed economic sector and the extensive privatization of the economy.

These dramatic changes have also produced severe economic and social dislocations. The gap between rich and poor is huge and growing, and regional disparities are serious. Less talked about and unimaginable to Americans is the growth of a flux in social values. Family and workplace ties have been impaired; many workers in state-owned enterprises that have been privatized have lost the social security that once came with their jobs and lasted throughout their lives; medical care, especially in the countryside, is in dire condition. The non-state economy that has arisen is, in many localities, a corporatist one, in which local business and political elites are closely tied together and business ethics is a contradiction in terms. The Chinese leadership is currently willing to undertake legal reform only under its authoritarian dominance, but even if it wanted to do more, how could a legal system be built well in the midst of such social disarray?

China’s difficult transition is reflected in its legal institutions.

One helpful description of the law of a society in transition can be found in a recent article by Hong Kong University law professor He Xin, who distinguishes between law at a time when the national emphasis is on economic development, and during a subsequent period—China’s today— when law is needed to move from exclusive reliance on economic development to what he calls, borrowing the current Chinese slogan, “harmonious society building. ” In this latter stage, the central government can use administrative law to restrain arbitrary conduct at lower levels of government.

China’s leaders may not be interested in Western-style democracy, but they are very concerned about governmental accountability, and they have drawn on American and European experience and institutions.to promote “open government regulations” and e-government via the Internet. Local governments’ experimentation with increasing public participation in government is expanding slowly, and some provinces are interested in adopting regulations on administrative procedure, as Hunan province already did last year.

The size of China and the pace of social change combine to make the central government’s control over lower levels of government vary considerably from place to place and time to time. As a result, in practice there is not one China, but many, and local variations make legal institution-building all the more difficult.

The United States can assist China to build its legal institutions without preaching.

In recent years the U.S. government, including your predecessor’s administration, has increased the support that it has given to strengthen labor rights, legal aid, open government, and administrative law, augmenting the support for these and other institution-building efforts by multilateral and U.S. NGOs. The current administration ought to increase that support while restraining highly public calls that urge China to speed up its adherence to Western values.

You might suggest creation of a modest program of U.S.-Chinese cooperation on legal issues.

While you are in China, you might explore whether there is interest in Beijing in welcoming foreign assistance in legal areas of common interest. Presidents Clinton and Jiang Zemin discussed the possibility in 1997 and agreed on some areas of cooperation. Although Congress dropped the ball in refusing to provide funding, US foundations helped fill the gap. Your administration could move more decisively. The need is there, China accepts foreign assistance in numerous areas, and experience shows that the U.S. can contribute to deepening legality in China.