UNDERSTANDING PROPERTY REGIME PERFORMANCE: NORMS AND STRUCTURES

The application of globalized liberal models on property law and regulation to China’s circumstances is affected by local contexts, particularly sociocultural norms and political and administrative structures. The performance of such arrangements may be anticipated through use of the paradigms of Selective Adaptation and Institutional Capacity, which allow better understanding of the normative and organizational dimensions of regime performance.76

Normative Interchange and the Role of Selective Adaptation in China’s Property Rights Regime(s)

The reception in China of transplanted legal models entails an interaction between their underlying norms and local values. In contrast to expectations about convergence that suggest development toward a globally unified system of institutional practices and values,77 Selective Adaptation explains variations in local reception of nonlocal standards by reference to the extent of normative consensus.78 Selective Adaptation suggests that local implementation of nonlocal standards depends on the extent to which those standards’ underlying norms are received by local interpretive communities.79 Interpretive communities comprised of government officials, socioeconomic and professional elites, and other privileged groups exercise authority of political and/or professional position, specialized knowledge, and/or socioeconomic status to interpret nonlocal standards for application locally.80 In the course of this process, interpretive communities interpret nonlocal legal standards in light of their own normative outlooks. Such interpretation is not necessarily a conscious process of matching foreign models to local interests but also involves subliminal dynamics of perception, complementarity, and legitimacy.

Perception of the content and operation of international law standards determines the ways that interpretive communities will interpret and apply them.81 China’s reception of international legal standards on trade and human rights, for example, depends significantly on perceptions by local interpretive communities of academic and policy specialists about issues of legal development generally,82 historical contexts for China’s participation in international regimes,83 and challenges of globalization.84 Complementarity between international and local practices and values informs the dynamics of local accommodation and resistance to international standards.85 Factors of complementarity are evident in local analyses of China’s participation in the international system and tend to emphasize the need for compatibility with China’s systemic and substantive requirements.86 Legitimacy concerns the extent to which both interpretive communities and their local audiences accept the purposes and consequences of transplanted legal forms.87 Dynamics of legitimacy are evident in China’s academic and policy discourses explaining China’s increased participation in the international legal system.88 Working together, these elements inform the process of Selective Adaptation that characterizes the interplay between acceptance on nonlocal rule regimes and assimilation of underlying norms.

China’s property rights regime reflects the influences of Selective Adaptation. The process for enactment of China’s Property Rights Law involved a conscious process of borrowing from international sources.89 In the course of the process, interpretive communities of specialists reviewed international property law models and considered how they might apply in part or in full to China. Such adaptation, however, involves not only conscious efforts at review and comparison of globalized legal standards on property but also less conscious engagement with underlying norms. This, in turn, involves dynamics of perception, complementarity, and legitimacy.

 
Source
< Prev   CONTENTS   Source   Next >