- Trial of Modernity: Judicial Reform in Early Twentieth Century China, 1901–1937 by Xu Xiaoqun
In his new book, Xu Xiaoqun presents a valuable and carefully researched portrait of the development of legal institutions in twentieth-century China, narrow enough in its gauge to be genuinely interesting and broad enough in its implications to contribute to a more complex understanding of the state in Chinese history. Each chapter of the carefully written study has insights valuable in themselves; together the chapters speak vividly of the praxis of modernity in twentieth-century China.
After a very well-written introduction, in which Xu defines judicial modernity as “the formalization of legal institutions and procedures in accordance with uniform standards and modern techniques” (p. 5), Xu proceeds in chapter 1 to present the views of late Qing and early Republican reformers. Among the new elements that reformers set out to introduce were the independence of the judiciary, introduction of due process, reform of the prison system, and a new civil and criminal code. The calls for change were strikingly modern and included at least some discussion of protecting human rights (baohu renquan 保护人权). If legal reform failed in China, it was certainly not because Chinese lawyers failed to understand legal modernity. Implementing the proposed reforms was fraught at many levels, however. Although many reformers seem to have been genuinely inspired by Western notions of justice, others—and probably many of the politicians who carried out the reforms—were mainly concerned with setting in place only such safeguards as were necessary to end extraterritoriality. Genuine reform, [End Page 416] including the creation of a multilayered court system adequately staffed with trained personnel, building and maintaining modern prisons, and expanding the range of disputes adjudicated by the state, required more money than China’s cash-starved governments of the teens, twenties, and thirties could provide. Finally, “Since the project for judicial modernity was ultimately driven by external forces, as opposed to internal development, the intellectual outlook, political institutions, social structures, economic conditions and cultural practices in local society were ill prepared for the required transformation” (p. 7).
Chapters 2 and 3 look at Chinese government of the early Republican and Guomindang periods. Both the Beiyang and the Nanjing governments fell short of reformers’ expectations, but they failed in different ways. The Beiyang government clearly articulated the goals of reform, particularly under its first minister of justice, Xu Shiying. But after 1914, it became clear that the Beijing government did not have the capacity to enact its stated goals. The Guomindang government had more capacity to shape the actions of local government, but a more limited goal, “to find a balance between its monopoly of political power and the continuation of judicial reform in of the regime to be accepted by Western as a legitimate modern state” (p. 85).
Chapters 4 and 5 explore the institutions and finances of judicial administration in Jiangsu province. Province-level institutions and finances are described, but so are district and county forms. Too often in modern Chinese history, the realities of subprovincial administration are conveyed, if at all, by anecdote. But a disciplined and thoughtful use of provincial archives permits a fuller picture here. On the institutional level, Xu concludes that “the agenda of institutional and procedural formalization and the reach of the state were intertwined, and … both made important progress to a much larger extent that has been recognized in the scholarship on Republican China” (p. 148). However, in the area of finance, “there was a structural incongruence between the agenda of institutional-procedural formalization, and the practice of revenue collection and resource allocation, which remained quite informal and irregular” (p. 183).
Chapters 6 through 9 assess the administration of justice at the county level. Chapter 6 looks at how, how efficiently, and by whom cases were judged in Jiangsu counties. Xu finds that, most often, justice was realized: “[O]ne gains an impression from the archives that the judicial system as a...