ANNUAL HERBERT L. BERNSTEIN LECTURE IN INTERNATIONAL AND COMPARATIVE LAW DUKE UNIVERSITY SCHOOL OF LAW NOVEMBER 2, 2006.
I. THE ISSUE AND ITS SIGNIFICANCE
The Spring 2005 issue of the Yale Law Journal published a lengthy review by New York University Law School Profesor Frank K. Upham (1) of my book, Sending Law to the Countryside. Professor Upham's central criticisms are two: first, my "uncritical acceptance of a linear version of modernization theory," (2) a criticism that I will not address in this essay; and second, my "greatest flaw," "the absence of politics and political power." My work, he says, "is reticent to the point of timidity when it comes to politics," "[a]side from the small-p politics," (3) by which he appears to mean the internal conflicts and interpersonal quarrels of the workplace. I emphasize these words to show that Professor Upham intends to make his point absolutely clear and forestall any possible misunderstanding of the word by readers. Moreover, his choice of the word "timidity" implicates the author's academic honesty in the political dominance of the Chinese Communist Party (CCP).
Contrary to Professor Upham's characterization, my book actually repeatedly reveals the influence on the judiciary of politics, especially the CCP's policies, including local Party organizations' multifarious interference in cases. This coverage is most evident in Part I of the book, which analyzes the influence of politics over judiciary from macro, middle, and micro levels. Chapter I projects the sending of the law to the countryside as an extension of the power of the nation-state to the basic level of society and points out that the judicial system in contemporary China assumes a political role. Chapter II discusses how the political control over judicial affairs is possible through the judicial administration within the courts and the judicial system. Chapter III focuses on the adjudication committee (shenpan weiyuanhui), a judicial organization within each court designed to deal--at least according to statutory law--with hard and important cases, and analyzes the multiple function of this micro institution within courts. Other chapters also have abundant analysis of politics and political power. (4) Thus, while I may not meet Prof. Upham's expectations about how much discussion there should be of politics and political power, his judgment that there is none at all is without foundation.
Certainly, such analyses may not be enough and should be extended by other research. However, I want to emphasize that I wrote the book in Chinese for a Chinese audience and never intended it to satisfy the political and ideological tastes of any foreign readers; Professor Upham's frustration or dissatisfaction is therefore understandable.
Nevertheless, Professor Upham's review attracted my attention and needs to be countered, not because he has any new insights or makes any contribution to the study of law in China, but rather because his errors in methodology are typical of some Western observers of China and are influential in China. Such errors reveal not only the deep ideological bias that is central to the "moral authority" of the Western notion of the autonomy of law and "rule of law" (a shaky authority that has evaporated after 9/11), but also a theoretical mistake that is common in comparative or implicitly comparative studies of China. In other words, it is the impact of these and similar errors on recent legal studies in China over the recent decades that has prompted me to write this response. Moreover, precisely because Upham's errors are characteristic of the shortcomings in analyses of Chinese law, this essay is not simply a response to Upham's book review, but also a paper of its own independent significance.
II. IS A DISTINCTION NECESSARY?
Professor Upham's criticism of my work as failing to address politics and political power is internally illogical and contradictory because his review also acknowledges, at least implicitly, that I did analyze the influence of various social actors, including the Party and government, upon the operation of basic courts. …