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  • Criminal Justice in China: The Place of Incarceration
  • Thomas Buoye (bio)
Klaus Mühlhahn. Criminal Justice in China: A History Cambridge, MA: Harvard University Press, 2009. pp. 365. Hardcover $29.95, ISBN 978-0-674-03323-8.

Examining the respective efforts of the Qing court (1901–1911), the “Beiyang Government” (1912–1927), the Guomindang (GMD), and the Communist Party (CCP) to modernize the criminal justice system, Klaus Mühlhahn’s Criminal Justice in China explores the values, theories, practices, and political exigencies that shaped the struggle to transform the institutions of criminal justice in twentieth- century China. Although the title is Criminal Justice in China, to be precise, the primary focus of the book is the reform, rationale, purposes, and goals of judicial and political incarceration. Spanning the period from the late Qing reforms in the first decade of the twentieth century to the beginning of the post- Mao era in 1978, the time frame is brief by Chinese historical standards, but it includes the overthrow of the Qing dynasty, the warlord era, the rise of the Guomindang (GMD) and the Chinese Communist Party (CCP), the Japanese invasion, full-scale civil war, and the establishment of the People’s Republic of China (PRC). Not surprisingly, given the lack of consistency, consensus, and stability that is crucial to the legitimacy of any criminal justice system, previous scholarly efforts to construct a coherent narrative of legal modernization in twentieth- century China have often foundered. For Mühlhahn, “three key dimensions” form the book’s interpretive framework: legal discourse, culture or society, and experience. With this framework, the author sets himself a daunting task: “By combining three levels of history (discourse, society and social institutions, and human experience) I intend to uncover the dynamics that unfold between these levels, and to bring to the fore the complexity of human institutions and the ambiguity of human agency in history” (pp. 9–10). Thankfully, the author mostly succeeds at the delicate task of integrating these three levels of history.

At the heart of this work are three excellent chapters that examine the ultimate consequence of criminal justice: the administration of punishments. Based on the [End Page 14] author’s own “extensive empirical research and fieldwork in China, Taiwan, and Hong Kong,” these chapters are richly documented with sources ranging from “government documents and legal texts to memoirs and witness interviews” (p. 13). Mühlhahn judiciously and effectively uses these diverse sources to reveal the broad consensus for reform of criminal justice as well as the manifold strategies, competing philosophies, and contentious politics that informed the different criminal justice policies of the various Chinese regimes. Chapter 2 covers the ill-fated Qing reforms (1901–1911), the initial efforts of the Beiyang Government (1912–1927), and the first decade of GMD rule (1927–1937). Chapter 3 examines the tumultuous years of war and civil war (1937–1949), from both the GMD and CCP perspectives. Chapter 4 analyzes the highly politicized efforts of the CCP from 1949 to 1978. This discerning periodization, coupled with the precise focus on incarceration, enables Mühlhahn to compare and contrast attempts to modernize criminal justice in a century fraught with upheavals. The choice of judicial and political incarceration, both of which were designed to rehabilitate and transform, provides an excellent vehicle to study the broader goal of modernization that was shared by Chinese leaders across the political spectrum. Given that the political survival of the regimes that rose and fell during the twentieth century depended on their ability to stabilize society and stave off political rivals, the history of judicial and political incarceration also provides a common thread for the study of criminal justice among some rather diverse regimes.

Beginning in the late Qing and continuing into the Republican period, chapter 2 traces the development of prisons as institutions that could both incapacitate and rehabilitate criminals. The author identifies two broad themes that distinguished the twentieth century: the expansion of criminal justice apparatus deeper into society and the use of criminal and penal laws to enforce “a new set of state-sponsored social values” (p. 58). According to Mühlhahn, prisons became important sites of moral instruction and exhortation that were designed...