Chinese Civil Justice, Past and Present (review)

The final volume of a trilogy on Chinese civil justice,¹ Philip Huang's new book completes his research on the subject over the past twenty years and enriches Chinese legal history and legal studies with new perspectives. The most significant contribution of the book lies in the arguments and evidence presented that compel one to move beyond a binary view, informed by Max Weber, of the modernist Western legal system vis-à-vis the traditionalist Chinese legal system. At the same time, based on substantial case records, some of which are also found in Huang's earlier works, the book reveals convincingly the continuity in Chinese civil justice from the Qing dynasty to the post-Mao reform era, both in legal practices and in an underlying mode of thinking.

Huang calls his methodology the "history-of-practice approach" (p. 1). Essentially, he pays greater attention to the actual practices of civil dispute resolution than to theories, representations, and institutions. That is, to grasp how civil disputes were actually resolved, he looks beyond, without dismissing a rational-formalist theory of law, official representations of legal ideals and the formal court system. His central argument is that Chinese civil justice involved both adjudication in court and mediation in or outside court, from the Qing to the present, often in ways that manifested compromises between Confucian (and Maoist) moral ideals and social realities, especially of peasant society.

Huang uses several concepts, such as "practical moralism," "Confucianized legalism," and "centralized minimalism," to characterize the ideological and institutional features of imperial China that were relevant to civil justice practices. By "practical moralism," Huang highlights the Qing law of "merging moral representations with practical action, the two being at once inconsistent and yet combined together." Huang characterizes these concerns succinctly: "[W]hat this system said was one thing, what it did was another, but these two combined was yet another thing" (p. 10). Furthermore, he uses this concept to identify a particular mode of thinking in Chinese legal practices that starts from facts rather than from theory.

By "Confucianized legalism," Huang describes a combination of legalist ideology of government by laws, punishments, and bureaucracy with Confucian ideals of benevolent government. This approach was reflected in the metaphor of government as a parent and subjects as children. If this formulation is familiar, what Huang analyzes with it is illuminating. In the Confucian ideal, society was a moral universe in which disputes, if they arose because of moral failings, would be resolved by societal mechanism of mediation without government interference; court adjudication was necessary only when the mechanism failed. Therefore, civil disputes over property, debt, marriage, and inheritance were considered minor matters, to be resolved initially through community mediation.

By "centralized minimalism," Huang means the institutional reasons for the Qing state preferring to leave civil disputes for community mediation. Beyond judicial matters, nonsalaried, quasi-officials in sub-county society took care of local affairs (usually without paperwork), from village schools to collective responsibility (tax and security) arrangements. Constrained by the Confucian minimalist ideals, the Qing dynasty operated a limited governmental apparatus with the county magistrate at its lowest level. This system created a need for quasi-officials and dispute resolution by community mediation at the county level and below. Furthermore, by using the concept of "centralized minimalism," Huang wants to capture not only "how formal government was organized but also how semiformal governance was practiced in the gray zone between the formal state and informal society" (p. 78). One of the refreshing insights Huang offers from this perspective is that the commune system in the countryside during the Mao era could be considered a continuation of the minimalist administration, in that cadres at the village level (production brigades and teams) were not funded by the state but self-funded—"eating collective grain" (p. 81). These cadres had a stake in the local community's well-being despite the line of control through Party organization to which...