Preface of Issue 3, 2020, PMR
Peter Suber, an American professor, has written a book The Case of the Speluncean Explorers: Nine New Opinions, which is a must-read book for western law students. The book provides 14 judges' different judgments on the same case. These different judgments are based on the judges' different understanding of the legal spirit and legislative purpose, whether the case is applicable to the written law or the natural law, whether the case belongs to self-defense or necessity. Every law has the support of philosophy or the support of the cultural attribute, which is inseparable from the legal attribute.
International projects (which refers to international projects undertaken by Chinese enterprises "going out" and domestic projects involving foreign capital or labor services) will encounter various legal problems. These problems are not merely caused by these enterprises not being familiar with or not complying with the local legal provisions. It is because these enterprises did not combine their own and local cultural attributes with legal provisions. In international projects, legal texts such as contracts are usually written in different languages, and it is difficult to find words that are absolutely consistent in understanding between different languages. If legal texts are translated into a third-party language (which is common in international projects), some misinformation will be added. Since language also has a strong cultural attribute, there are many meanings that can only be felt and can't be expressed precisely. For example, about the expression "Shanghuo" in traditional Chinese medicine, it's easy for Chinese people to understand, but it's difficult to define it clearly to foreigners.
Some AI experts predict that lawyers will lose their jobs in the future because AI technology can remember more legal provisions and cases than human brains. I think this idea is too idealistic. No evidence proves that AI technology can have the ability to analyze cultural attributes. The reason why there should be judges and lawyers is that no established law or natural law can fully adapt to a specific case, which needs the judges and lawyers to make up, and the judges and lawyers will have cultural attributes in interpreting the adaptability of the law.
Chinese people pay much attention to cross-cultural management in international projects, and they tend to "install" their understanding of business relations, government-enterprise relations and human-nature relationship in their own cultural attributes to other countries and individuals. In traditional Chinese culture, the order of emotion, reason and law is also a kind of cultural attribute. Compared with various kinds of relations, legal relations are secondary in China. In legal disputes, Chinese people tend to deal with them from the political level, the government level or the relationship level. At present, the supply of talents with sound understanding of both local cultural and legal attributes lags far behind the need in the international market, so it is common for Chinese enterprises to suffer losses in international legal disputes.
Law is also an extension of politics, because the general principle of these laws, namely, the constitution, is mainly the embodiment of political will. Alan M. Dershowitz, a law professor at Harvard University, in his book The Best Defense reveals a rule of the American judicial community, "Many prosecutors acquiesce in lies when the police are asked whether to use unconstitutional means to find guilty defendants, and all judges are aware of this rule." Thus, law is influenced by the political system, political culture and political skill. Politics and culture are inseparable. In simple terms, politics is an ecological phenomenon of culture. To understand a country's political system, we need to understand its cultural attributes.
An international project starts from all relevant parties recording their recognized rights and responsibilities in the form of contracts, which is the legal property and framework of a project. The value flow, information flow and risk flow among the roles of all relevant parties are the spirit and flesh of the project, most of which are controlled by the project’s cultural attribute. If we can't master both the cultural and legal attributes well, the international project can easily become a "tower to the sky" project.