From Borrowing to Adaptation: The Chinese Paradigm of Legal Modernization with National Characteristics and Its Implications for Post-Colonial African Law

Abstract

The Chinese model of legal modernization is discussed as a paradigm for post-colonial African states in the process of building their own legal systems that are autonomous and respect their national characteristics. In contrast to the state of African legal systems that are still basically ‘colonial’ in nature, the Chinese experience has shown how a civil law tradition can be borrowed and adapted and even reinvented as a system recognising the local philosophical, cultural and political perspectives. Based on the 2020 Chinese Civil Code, the theoretical foundations of Xi Jinping Thought on the Rule of Law, and the history of Rwanda's Gacaca courts, this article suggests that the lack of indigenous contributions to international law is not due to a lack of legal scholarship but to a deep-rooted structural reliance on colonial-inherited legal systems. The article suggests that African states ought to learn from the Chinese experience and establish hybrid legal systems which combine the elements of customary justice with contemporary legal systems, thus improving their domestic legitimacy and international legal weight. Finally, by comparing the experience in India with that in Turkey, the article illustrates that the process of legal modernization does not necessarily have to be a one-way journey in the West and that there are still plenty of alternative civilizational ways that can be taken to achieve legal modernization.