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Foreword The study of law in the Chinese People's Republic is both frustrating and exciting. Frustration derives from the fact that the dominant ideology in the Chinese People's Republic combines very uneasily four positions on law. The first of these is a communitarian view which sees recourse to law (fa) as evidence of the failure of prescribed social mores (or li). The second is an ultra-humanistic view which reduces all legal statutes and acts simply to the actions of legislators (according to which view the 'rule of law' is impossible). Thus law may be seen only in a positivistic sense (no more than the act of the sovereign power). The third position, deriving from Soviet orthodoxy, sees law as no more than a function of class domination. There is a fourth position, which owes much to the Soviet theorist Pashukanis but for Stalinist reasons has rarely been acknowledged as such, that law has increasingly mirrored commodity relations; it reached its high point in capitalism, as indeed did the commodity system, but with the transition to communism law will be transcended. So much for the sources of frustration, now what about the sources of excitement ? It is clear that the communitarian position still holds but the practical necessities of a modem market society demand its modification. The study of Chinese law can add much empirical evidence to adjudicate the liberal-communitarian debate which has so preoccupied political theorists in the past decade. Second, ever since Dicey made the point that the rule of law may be said to be in effect once the state just becomes another actor, similar to all other actors in legal disputes, jurists have challenged the reduction of law to the actions of legislators. That challenge may reflect what many Chinese theorists describe as the 'bourgeois separation of powers', but one wonders how 'bourgeois' the separation has to be and might speculate on the validity of the separation of powers for all modem societies. Third, it is becoming quite clear that class reductionism is particularly dangerous; but can one dismiss it totally when one considers affirmative action and stronger forms of that term? Fourth, viii Foreword Pashukanis' thesis, whilst said to reflect a naive optimism about socialism, remains thought-provoking when one considers that litigation mania in the United States might reflect a commodity system out of control. Is that China's direction? There is little joy in legal positivism. Western legal systems are still dominated by positivism and the situation is theoretically rather bleak. Yet perhaps even here there is hope. When Chinese theorists offered positivist rights against non-positivistic human rights, they found themselves in trouble and in recent years, despite (or perhaps because of) monstrous violations of human rights, are modifying their position on human rights. Human rights are increasingly seen as something more than the simple enactments of legislatures. Considerations of legal positivism might sometimes quash excitement. I think here of the legal proceedings resulting from the 1989 June Fourth Movement and the various convictions under the rubric of 'counter-revolution'. Yet the value of Dr Lo's book is to indicate the avenues of hope for the realization of the 'rule of law' and to rekindle excitement. Richard Baum has pointed out that the Chinese term Jazhi could mean the rule of law or simply rule by law. Many people believe the latter is all one can hope for in China. This debate will not be settled by theoretical analysis but by empirical evidence. Few scholars have presented enough case study material. This book, in analysing the popular legal journal Minzhu yu Jazhi, does precisely that. It surveys a large number of cases, showing change or lack of change according to prescribed directions. Clearly the selection of articles in that journal has been designed to reflect a didactic purpose and is distorted by the process of selection. For all that, the journal reveals an honesty of intention and an extraordinary willingness to point out abuses of power. We are presented, therefore, with one of the best collections of criminal case discussions to date. There may come a time when, given a few million dollars and a much freer Chinese political system, we will be able to conduct a comprehensive and independent survey of criminal justice in China. In the meantime, we are presented with a general picture of change - generally in a freer and less arbitrary direction but still revealing enormous obstacles to the realization of the rule of...

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