Domestic Law Reforms in Post-Mao China (review)

Reviews 539 Pitman B. Potter, editor. Domestic Law Reforms in Post-Mao China. Armonk, New York: M. E. Sharpe, 1994. xiv, 384 pp. $55.00. Before this century, Western inquiry into and observations about the Chinese legal system were quite limited. This was due, in large measure, to the fact that the Chinese legal system was "alien." It did not follow the Western model ofutilizing formal legal institutions to define and enforce individual and organizational rights. The situation began to change early in this century. The Western concept ofthe "Rule ofLaw," in contrast to the Chinese "Rule ofMan," began to be placed on the books around 1900, but, with few exceptions, it did not become a reality. The PRC under Mao generally followed the practice oftraditional China—the "Rule ofMan." It was not until the early 1980s that the "Rule ofLaw" reemerged in China, and with this reemergence came a concomitant awakening ofinterest in the Chinese legal system by Western scholars. The volume under review developed out ofa 1990 AAS panel on Contemporary Chinese Law. Papers presented by William C. Jones, Judy Polumbaum, and Pitman B. Potter at that session are included, as well as non-panel contributions by James V. Feinerman, Edward J. Epstein, and Murray Scot Tanner. Stanley Lubman, who had served as a discussant for the panel, authored the Introduction to this book. Lubman had the job ofplacing this collection in the larger context of Chinese legal studies. He begins with the observation that the goal ofthe authors was to inquire selectively into the initial accomplishments of Chinese law reform, the mixed intentions behind them, and the difficulties they face. He adds the caveat, however, that the authors were unable to avoid the narrow legalism that frequently characterizes Western writing about Chinese law, and that the "Exegesis oflegislation is arid and formalistic, and close observation of institutions at work by foreigners is downright impossible." Murray Scot Tanner's contribution on lawmaking offers the possibility that the recent changes in legislative style, which have made that task a very specialized undertaking, may mean that the Politburo is no longer able to micromanage the process. Ifthis speculation is accurate, it means a lessening ofpower for the Party leadership, and the development offorums for contending ideas. Edward Epstein adds that unless the CCP leadership supports this enlarged autonomy for law and its institutions, the government will never be constrained by the "Rule ofLaw."© 1995 by UniversityJones, Feinerman, Polumbaum, and Potter all address specific legislation. ofHawai'i PressJones, the Western expert on civil law in China, raises the question ofwhether the courts may actually be acquiring the independence and power to interpret law ac- 540 China Review International: Vol. 2, No. 2, Fall 1995© 1995 by University ofHawai'i Press cording to changing circumstances. Unfortunately, he concludes, Party dominance over the courts will remain for the foreseeable future. Feinerman inquires into the tension between the use of contract law to define economic rights and obligations and its use as an administrative device. He observes that the former application is still weak. Polumbaum's piece on the Draft Press Law captures the contradiction between notions of individual rights and emphasis on the collective. With the adoption of a professional code ofmorality in 1991, the press of the PRC was restricted to the latter. Potter's essay on the Administrative Litigation Law (ALL) makes the point that the very concept of this law caused Chinese policymakers difficulty. The possibility of seeking legal redress for bureaucratic abuses rather than adopting a fatalistic approach or utilizing informal personal relations was novel in China. The severe limitations on judicial power over arbitrary administrative actions contained in the ALL, however, insure that little actual judicial review will take place. Finally, the contributions ofthese distinguished individuals are certainly a welcome addition to our growing body ofWestern scholarship on the topic of Chinese law. One would do well, nevertheless, to keep in mind Stan Lubman's admonition that "Other Western lawyers have gazed out on a turbulent or uncertain China before, and have been deceived, both by China and by themselves." Gerald W. Berkley-Coats University of Guam m John Roderick. Covering China. Chicago: Imprint Publications, 1993. 199 pp...