Law and Justice in China's New Marketplace (review)

Since their inception in 1978, the legal reforms of post-Mao China have been intimately linked with the regime's economic-reform program. Today, twenty-five years later, each of these policy initiatives has taken on new dimensions probably unimagined by their original proponents. Economic reforms that began as tentative efforts at increasing agricultural productivity in the aftermath of the Cultural Revolution now claim the goal of establishing a socialist market economy, while legal reforms aimed initially at rebuilding social order now grapple with issues of establishing the rule of law. As this interesting and useful book suggests, what was once a mutually sustaining dynamic between the policies of economic and legal reform has given way to a mix of complementarity and contradiction. Ronald Keith and Zhiqiu Lin examine the question of whether the requirements of China's market economy are compatible with the requirements of the rule-of-law system aspired to by China's jurists, to whom the volume is dedicated.

In their opening chapter, the authors provide a useful overview of the various schools of thought that dominate jurisprudential discourse in China. Focusing on the discourse of rights and interests, the authors depict an emerging pluralism in Chinese jurisprudence and the varying and in some ways conflicting approaches to the needs of building a rule-of-law system. With this as background, the authors move on to examine the ways in which the rights-and-interests discourse informs law and policy on the protection of the interests of women, children, the handicapped, and the elderly; the ways in which the regulation of the contract-labor system attempts to balance the imperatives of justice and efficiency; the ways in which property law attempts to balance issues of public and private interest; and the potential for criminal law and procedure to achieve the goals of judicial justice. In each of these chapters, the authors make good use of the increasingly rich array of Chinese-language source material on legal theory. Their task is a formidable one, as the fields and subfields of Chinese legal studies have grown exponentially over the past two decades, leading to a multitude of conflicting schools and conceptual approaches in substantive areas of law such as contracts, property, and human rights. Nonetheless, the authors do a solid job of examining policy issues, legislative histories, and the conceptual perspectives of scholars and officials, to present a useful thematic overview of Chinese jurisprudence.

Keith and Lin have done a masterful job of identifying and explaining the contours of legal theory in China today. Jurisprudence is important as it provides conceptual and rhetorical frameworks for understanding the content of law and regulation in China. However, this is but a part of the story of Chinese legal reform. While the balance-of-values approach favored by many in the legal academy serves as a useful theme for resolving the multitude of socioeconomic and political conflicts attendant to legal reform, balancing itself can hardly be said to be done in the abstract. As the history of legal reform over the past twenty-five years suggests, the lawmaking process in China combines ideological perspectives with specific economic and political interests. As recent debates over efforts to make China's legal system conform to the requirements of the WTO suggest, the interplay of economic and political interests with law and policy is becoming increasingly powerful, and provides essential context that the authors might have included to good effect in their jurisprudential analysis.

The emerging jurisprudence of legal reform in China is largely a discourse among elite-level jurists and legal officials. Yet, the members of Chinese society upon whom the law is imposed will also play an essential role in the ultimate outcome of China's legal reform effort. Compliance with law and regulation in China is arguably the most fundamental dilemma facing this effort. Many scholars within China and without have suggested that problems of compliance...