Concerned about China’s future, a panel of Chinese legal scholars invited Professor Duncan Kennedy to discuss legal transplants and the rule of law. This commentary contextualizes their ideas and concerns and aims to clarify some concepts and arguments that underlay their discussion. At times though using the same words the participants were talking about different things. By legal transplants, the Chinese scholars were initially speaking of specific laws, while Duncan Kennedy was referring to legal thought. By law being political, Duncan Kennedy largely meant the distributive and discretionary nature of adjudication, while the Chinese participants were criticizing the interference by the Party and the government with judicial practice. Yet through this encounter, much was exchanged and debated. Regarding the triggers of legal transplants, the Chinese participants emphasized the law’s quality and the donor’s power, while Duncan Kennedy was more interested in chance and the recipient’s strategy. Among the multiple ways of defining the rule of law, both sides agreed that it should be an institutional framework within which an independent judiciary checks the executive power. Nonetheless, each side had their own hopes and reservations on how this institutional framework can enable judges to faithfully apply the law.
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