Domestic Law Reforms in Post-Mao China

By Pitman B. Potter | Go to book overview

disputes rather than litigation, although that same judge would hardly want to live in the party-state that has promoted mediation for its own political purposes. 28

Other latter-day successors to foreign travelers misled by their hopes for a Chinese conversion to Western institutions include some American lawyers and law professors who have been so enthusiastic about the program for reform that they have taken it to depict reality. 29 Tanner's restrained description in this volume of the Chinese legislative process, for example, should be compared with the much more optimistic view of one American lawyer expressed after China's first bankruptcy statute was adopted. 30 A thoughtful retrospective view of Chinese law reform and some of its American students after the Tiananmen events has criticized Americans for excessive willingness to find the emergence of familiar Western legal concepts and regularities in official behavior. 31 Conversely, in place of relativism that sometimes restrained foreigners from evaluating Chinese law in terms of Western institutions and theory, 32 American observers frequently emphasize human rights issues so strongly that they have sometimes overshadowed other Western perspectives on China. 33 Americans sometimes insist on judging other nations using a unitary and simplistic standard, framed in terms of U.S. ideals.

These examples alone suggest that foreign observers must use restraint in assessing Chinese legal development, especially if they look principally to formal legal institutions and employ Western legal concepts in their analysis. Not only are the evolving institutions of Chinese law elusive objects of study, but the doctrinal sands are shifting under the Western lawyer. Conventional comparative law theory is too shapeless and abstract to be helpful; critical legal studies remind us, if shrilly, of the indeterminacy of legal rules, and the social sciences implacably challenge the alleged autonomy of legal institutions.

This introduction has suggested themes to which the reader should be attentive in reading this book and in considering the future of Chinese law. Some humility is required as we observe the uncertainties of Chinese legal reform: Other Western lawyers have gazed out on a turbulent or uncertain China before, and have been deceived, both by China and by themselves. We would do well to remember that.


Notes
1.
See, e.g., Note, "Concepts of Law in the Chinese Anti-Crime Campaigns", 98 Harv. L. Rev.1890 ( 1985).
2.
See, e.g., supra note 1.
3.
Koguchi Hikota, "Some Observations About 'Judicial Independence' in Post-Mao China", 7 Bost. Coll. Third World L. J.195 ( 1987).
4.
Ibid. On earlier speculation on the extent to which CCP policies toward law derived from policies toward bureaucracy, see Stanley B. Lubman, "Form and Function in the Chinese Criminal Process", 69 Colum. L. R.535 ( 1969).

-14-

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