Review Essay-Access to Justice in Post-Mao China: Assessing the Politics of Criminal and Administrative Law
Kinkel, Jonathan, Hurst, William, Journal of East Asian Studies
Since the upheaval of the Cultural Revolution decade (1966-1976), post-Mao China has witnessed a sustained period of unprecedented legal reform. Criminal prosecutions and citizen lawsuits against the government, because they pit individual litigants against the authoritarian Chinese state, are two politically significant areas of law. We examine and critically assess the sociolegal scholarship on criminal and administrative legal reform as it has developed over the past few decades, with special attention to shifts in the conventional wisdom regarding legal reform and political liberalism in China and elsewhere. Additionally, we offer both theoretical and empirical suggestions for enhancing the explanatory power of sociolegal research in China. KEYWORDS: China, law, politics, sociolegal studies, rule of law, courts, criminal law, administrative law
IN 1967, THE SOCIAL SCIENCE RESEARCH COUNCIL (SSRC) AND THE American Council of Learned Societies (ACLS) convened a series of conferences to advance cooperation and collaboration among top Western researchers of Chinese law. These conferences were a response to the underdevelopment of English-language scholarship on the Communist legal system of the People's Republic of China (PRC). While grants were available for research on PRC legal institutions, criminal law, civil law, and international law, many in the field felt an urgent need for clearer understandings of how to evaluate systematically both the history and the current practice of PRC law (Cohen 1970a, 6-7, 10-11). One of the organizers, Jerome Cohen, optimistically opined that the conference would constitute merely the first word in advancing Chinese legal studies (Cohen 1970a, 4, 19). Having established the basic contours of the pre-Cultural Revolution PRC legal system in the 1950s and 1960s, several scholars at the 1967 conference focused on "tools for research," indicating the field's fitness for advancing a methodological agenda (see Cohen 1970a; Li 1970; Lubman 1970; Pfeffer 1970).
Not yet clear to the conference participants was the extent to which legal institutions would suffer during the Cultural Revolution (see Chen 2008, 147-148; Lubman 1999, 139, 251; Leng and Chiu 1985; Liu and Halliday 2009, 922). In contrast to the decade preceding the 1967 conference, which saw substantial development of the English-language scholarship on Chinese law, progress in sociolegal research on China nearly ground to a halt, with the court system mostly in disarray during the Cultural Revolution decade (1966-1977). Political and ideological barriers to access left little for legal scholars to analyze. Even for students of other aspects of politics, reliable data were hard to come by (Lieberthal 2010, 271).
The disruption of the Cultural Revolution is an apt point of departure for examining scholarship on contemporary Chinese law. The study of Chinese law has recovered and flourished since the advent of reform in 1978, aided substantially by rapid legislating and the increasing use of law and courts as political forums. But some still express dissatisfaction that narrow, legalist approaches frequently characterize Western writing about Chinese law (e.g., Lubman 1994, 5; Peerenboom 2010b, 12). Indeed, there have been prominent recent calls for the next generation of researchers on Chinese law to integrate more deeply into the "law-and-society" field (Diamant, Lubman, and O'Brien 2005, 4-5). Despite the best intentions among scholars at the 1967 SSRC-ACLS conference to lay the methodological groundwork for the future of Chinese legal studies, today there remains "a need for a more empirical, less ideological approach to assessing legal reforms in general and issues such as judicial independence or the role of the party in the judiciary in particular" (Peerenboom 2010b, 12).
While we are sensitive to the many practical obstacles to conducting empirical work in China, research on China's courts and legal system can move in a "more empirical" direction through subnational comparative analysis. …