Border troubles. Some uncertainties of legal transfer

Abstract

AbstractIssues of production, translation and transformation of texts are explored in the light of the differences between modern Western legal thought and Chinese views of legal rationality. Contemporary Chinese culture is often viewed with suspicion. On the one hand, Chinese thinking is mistrusted as influenced by the Confucian world view regarded as deeply irrational. On the other hand, China’s economical practises are often suspected of mere reproducing and copying. This paper is concerned neither with alleged or factual deficiencies of China’s legal rationality nor with violations of “intellectual property” or other rights or the governmental policies of the People’s Republic of China. My interest is the fact that accusation and concern for the Chinese practises of creation and transformation by copying and cloning seem to hit the nerve of Western modernity’s cult of authenticity. The very problem, the paper suggests, is our modern relation to the other and to the others. I will argue this in three steps: the first part starts from a discussion of ‘shanzhai’, the Chinese neologism pointing to alternative ways of production, before analysing the Western scandalization of plagiarism; drawing upon studies from various disciplines, specific aspects of writing and scripture, such as the the differentiation between real text and fiction, the idea of authentic speaking and the distinction between textual and functional equivalents, are explored. The second part is first about the role of truth and truthfulness in modern Western art and philosophy, then about the interpenetration of wisdom and cunning in ancient Greek and Chinese thought. The final part addresses the relation of reasonable knowledge and instrumental rationality in legal thinking. The Chinese notion of ‘quan’, law, is described as a jurisgenetic path of law. Against this background, open questions associated with legal “transplants” come to the fore.