Hao Jiang Introduces the Civil Code of the Century to the West
THE FIRST CHINESE CIVIL CODE SINCE 1949 WILL COME INTO EFFECT IN JANUARY. ONE OF THE LEADING SCHOLARS WHO ARE STUDYING IT IN THE WEST RECENTLY JOINED BOCCONIOn 1 January, 2021, the first Chinese Civil Code since 1949 will come into effect, marking an inflection point for both international business transactions and comparative law studies. “Given the increasing economic and geopolitical importance of China along with the doctrinal and structural innovations the Code presents, it has the potential to be the civil code of the 21st century, in the way the French Code was the code of the 19th century and the German Code the most influential one in the 20th century,” says Hao Jiang, Assistant Professor of Comparative Private Law at Bocconi Department of Legal Studies since last September.
The Chinese Civil Code has just been introduced into the popular comparative private law textbook edited by Professor Jiang jointly with James Gordley (Tulane University) and the late Harvard scholar Arthur von Mehren. The book has its roots in von Meheren’s 1957 groundbreaking The Civil Law System: Cases and Materials for the Comparative Study of Law, which introduced European civil law systems to America. “My own mentor James Gordley was added as a co-author in the 1970s and, later, he focused the book on private law” says Professor Jiang. “I became the new author, in 2018, when I first started using the book to teach Chinese civil law in Hong Kong. The only problem was: the book did not say a word about Chinese law. Out of necessity, I created my own materials on Chinese law. After 12 weeks of teaching, I had enough to put together a new book. It was a risky yet effective pedagogical attempt that widens the perspectives of students and the horizons of the book. Adding Chinese law to the book is much more than adding one more jurisdiction to the other four (England, U.S., France and Germany) the book traditionally covers. We added a legal tradition that grew independently outside the Roman law. Finally, the book is no longer Western-centric. This might well be the first comparative law book in the West that systematically introduces the new Chinese Civil Code.”
During his first legal studies at the Nanjing Audit University Law School, Hao Jiang was fascinated by the common law system, “which challenged every assumption I had about law,” and thus decided to move to New Orleans to study it. There, at Tulane University, the leading law school in comparative law in America, he obtained both a Juris Doctor and a Doctor of Juridical Science, developed his passion for comparative law and met Professor Gordley, who would have an important influence on his life, most recently by advising him to accept the academic appointment at Bocconi.
“I’ve always wanted to be a scholar,” Professor Jiang says, “like my grandfather, a biologist, and my father, a psychiatrist, before me. I consider myself a logical person and I approach law as it were mathematics. I always ask my students to understand the law as a historical and logical enterprise. If they do that, there will be no need to memorize the code articles. For some people, art is beautiful and law is only useful – I think that law is beautiful because of its logic, because of the possibility that laws in so many jurisdictions can be explained by one coherent theory: a theory that explains everything.”
In his studies, Professor Jiang looks for the theoretical foundations of contract law in Western and Eastern traditions, tracing back the differences to two concepts developed by Aristotle: commutative justice and distributive justice. Commutative justice (whose Latin root, “commutare”, means “to exchange”) means giving to each person what he/she’s owed – what he/she is entitled to - and implies that every exchange shall be reached at a just price, which is identified by Late Scholastics in the 16th and 17th century as the market price. “This position was incidentally confirmed by the efficient market hypothesis developed by Eugene Fama. If we believe in what economists tell us, despite all the information that is available, the market price is likely to go up as it is to go down. Or it would have gone up or down. Therefore, when a contract is reached at the market price, it is a fair bet. The only risk parties are taking by contracting at the market price is the inherent risk of the market. Any additional risk taken by a party shall be allocated and compensated fairly according to the idea of commutative justice.”, Professor Jiang says.
Distributive justice, on the other hand, concerns the socially just allocation of resources, which explains administrative law and tax law but not private law.
In an article forthcoming in the Michigan State Law Review, Professor Jiang and Professor James Gordley argue that commutative justice coherently explains American contract law doctrine. The theory can also be applied to explain the entire Western contract law, be it common law or civil law systems.
Part of Chinese private law, despite the pervasive Western legal transplants, is based on the Confucian idea of distributive justice, that takes a party’s financial status into consideration in finding liability regardless of fault, as Professor Jiang clarifies in an article forthcoming in the Tulane Law Review. The new Chinese Civil Code has to confront three fundamental problems: traditional Chinese moral philosophy, the partially state-run economy according to communist ideology and some logically incompatible legal transplants from Western private law. “This creates some tension,” Professor Jiang says, “and I argue that solutions to these problems require structural change in Chinese economy, doctrinal innovation and clarification, and a gradual but conscientious acceptance of a law that is based upon philosophical ideas that differ from traditional Chinese moral philosophy.”
Hao Jiang joined Bocconi after an international career which unfurled across academic and professional jobs and is the author of some ten scholarly articles. In academia, he taught at Tulane Law School as a visiting assistant professor, at City University of Hong Kong, Paris II and Trieste, and conducted post-doctoral research at the Max Planck Institute of Comparative and Private International Law. He also clerked briefly at the Chinese Supreme Court and has been a member of the New York State Bar since 2011.
Current times are not the best ones for someone settling in a new town, but Hao Jiang has a favorable judgment of his first months in Milan with his wife and his son. “Here it is easier to develop personal relationships than in the US; also, you don’t depend on a car and, when you walk around the city, everything is beautiful and unique. I am immensely happy every single day.” Even if his working language is English, he and his wife Huimin, a Linguistics professor, are taking Italian lessons from Bocconi professor Elisa Turra. “As a scholar of comparative law, learning a country’s language is of utmost importance to truly understand what is going on. I don’t want to be an expat living in Milan. I will do my very best to immerse myself in the Italian culture.” As a life-long fan of AC Milan, Professor Jiang is looking forward to watching a match with his son, Ethan, at San Siro stadium as soon as it reopens.
Find out more
James Gordley, Hao Jiang, Arthur von Mehren, An Introduction to the Comparative Study of Private Law. Readings, Cases, Materials, Cambridge University Press, forthcoming, December 2020.
James Gordley & Hao Jiang, “Contract as Voluntary Commutative Justice,” in Michigan State Law Review, forthcoming.
Hao Jiang, “The Making of a Civil Code in China: Promises and Perils of a New Civil Law,” in 95 Tulane Law Review, (2021) forthcoming.
by Fabio Todesco
