Change has swept across nearly every aspect of Chinese governance and society in the past several decades, and its legal system has not been spared. This arena has undergone steady and significant reform, making contemporary expositions on it especially welcome and interesting.
Through China's Changing Legal System, the authors endeavour to contribute to the body of scholarship on this topic. One of the ways they wish to do so is by offering an “introductory primer” on China's legal system, which they also hope will give foreign readers “fresh perspective” when it comes to their own countries’ legal regimes (p. xvii). In this effort, the authors are largely successful.
The book proceeds through three parts, addressing what the authors consider to be the core stitches in the tapestry of Chinese law. The first examines lawyers and judges: “the main players in China's legal system” (p. 19). The second presents private law in China: those areas where “it is private citizens who initiate the legal action,” which include civil procedure, family, tort, property, contract and corporate law (p. 77). Finally, the third part addresses public law: those areas where “the state plays a crucial role in litigation,” such as administrative, criminal, and international law (p. 157).
Within the aforementioned parts, in addition to explications of different legal areas, the authors interweave brief descriptions of China's historical legal development and its general legal structure (i.e. law-making bodies and the hierarchy of courts). Additionally, they include interesting comparisons between Chinese law and that of Western countries, particularly the United States. But the most engaging and helpful companions to the book's presentations of pure law are accounts from actual Chinese lawyers and judges of their work and experience within the country's legal system. These are the result of “hundreds of interviews,” and although their inclusion at times results in meandering depictions of legal areas that overly generalize or are too anecdotal, they help to produce a far richer work overall that “incorporates scholarly descriptions and evaluations of law with down-to-earth interviews with practitioners on the ground” (p. xvi).
As a primer on China's legal system, the book does, however, contain its share of deficiencies – as would any work tackling such an expansive subject. Since the book targets a foreign audience, an omission of note is mention of whether the Chinese legal regime replicates certain core tenets of Western counterparts – such as prohibitions against double jeopardy and statutes of limitations. To the authors’ credit in this regard, such omissions are striking because other similarly foundational Western principles – like the presumption of innocence (which China does not adopt) (p. 170) – are addressed.
Moreover, China contains multiple legal systems due to its “one country, two systems” arrangements with Hong Kong and Macau. Remarks on if and how these systems interact would have been beneficial to the book and readers.
But aside from providing an introduction to the Chinese legal system, the authors also endeavour to accomplish the difficult task of correcting “distorted” views of and improper biases against this system while simultaneously noting the actual problems they perceive within it (p. xvii). In this second undertaking, they come up short.
The book notes numerous failings within China's legal system, including: the inability of the central government to keep up with legal developments (p. 142); the resulting lack of unified law in important areas (p. 169); the lack of judicial independence from the Chinese Communist Party (CCP) (p. 69); the widespread utilization of torture to elicit confessions (p. 170); and the dangers attorneys face, particularly from the government, in taking controversial cases (p. 179). But the authors seem intent on balancing these observations with overall praise for the “phenomenal” progress of the Chinese legal system and its growth “at exponential rates quantitatively and qualitatively” (pp. 195–96). This makes their critiques appear perfunctory. In fact, the authors’ subjective commentary comes across as defending the system, though with infirm arguments.
The authors rely far too heavily on the assertion that most critics of China's legal system are simply unfamiliar with civil law regimes, as opposed to common law regimes (pp. 1, 195–96). Yet this ignores the fact that much criticism emanates from civil law countries, and has nothing to do with differences between civil and common law – it usually involves critiquing the status of the rule of law in China.
The authors also seem to believe that the proliferation of laws and courts, and adjustments to their content and jurisdiction, equals true legal reform and significant steps towards the rule of law (pp. 195–96). They do not.
The rule of law is the restriction of arbitrary exercises of power by subordinating government and societal actors to well-defined and established laws. Two critical problems show that, fundamentally, China is not subject to the rule of law, and that domestic legal developments are not meaningfully working towards this endpoint. First, the existence of laws does not mean that they are enforced, let alone against the government. China suffers from massive deficiencies in the consistent and impartial enforcement of laws, as the book's expositions on environmental and intellectual property law vividly show (pp. 109, 127) – though this issue is certainly not limited to these areas.
Second, the law-making and judicial regulatory powers ultimately reside entirely, and without limitation, with the National People's Congress and its Standing Committee, which are run by the CCP (pp. 12–16). This means that, at the highest level, Chinese law is created, administered and enforced by one body. While there is room for different actors at different levels – including courts – to assert themselves and interpret and apply law in particular fashions, the CCP is unchecked in its ability to craft and apply the law as it sees fit when it so desires. This is certainly not the subjugation of power to law; it is certainly not the rule of law. Rather, Chinese law is often a tool of state and Party power, and this aspect of it is inadequately addressed.
In summation, as an introduction to the Chinese legal system, the book is a recommended read for newcomers to the subject. But as a critical assessment of this system, it is wanting.
