China’s Legal System by Pitman B. Potter (review)

For thousands of years, the legal system of China had been an independent branch of the world legal system. It was mainly built upon Confucian ideology and focused on the ethics and relationships among individuals. Disputes were principally settled through informal means focusing on reconciliation rather than punishment. Law was treated as the last resort for dispute resolution within this communitarian tradition. After the Qing dynasty ended at the turn of the 20^th century, the Western legal system was introduced into China and reforms attempting to adopt Western legal theories were tried during the brief Republic Era. After the People’s Republic of China was established in 1949, the socialist legal system, following the model of the former Soviet Union, quickly became the official legal framework, subjecting law to politics and the demand of the socialist state-planned economy. The result of the instrumental view on law serving the need of class struggle during the Mao era was a “lawless” China. The post-Mao economic reforms provided an impetus for reestablishing a legal system that protects the economic order and guarantees individual rights (e.g., rights to ownership). Partly due to the demand of an international community for a stable economic system and the devastating effect of the Cultural Revolution, rule of law, rather than rule of man, was called upon from both the bottom up and the top down during the 1980s. Today, after more than 30 years of legal reforms, China has built a comprehensive legal system that addresses various relationships in almost all aspects of social lives. It is within this context that Potter provides an overview of China’s legal system.

This over 200-page research monograph has an introduction, five chapters, and a conclusion. In the introductory chapter, Potter notes that China’s legal system still functions “primarily as an instrument of rule for the Communist Party” (p. 2), and that there are discrepancies between law on the books and law in action. Despite these limitations, Potter states that the study of China’s legal system is noteworthy given that China is the fastest growing economy in the world, has the largest population, and exemplifies the “development of ‘socialist law’” (p. 3). In particular, scholars in China and abroad now have better access to China as a research site for studying law and the legal system. The purpose of this book, according to Potter, is “to provide students with basic information about the People’s Republic of China (PRC) legal system and to invite consideration and debate around foundational questions about law in China” (p. 4). Understanding the basic foundation of law in China is imperative, particularly due to the fast-changing legal organizations and structures in China.

Chapter 1 provides an overview of the legal development in the Qing dynasty, the Republic Era, and the early PRC. Potter notes that during the early years of the PRC, law was primarily used as a political tool to facilitate the “economic and social transformation” (p. 16) as well as its “immediate governance priorities” (p. 16). In the post-Mao economic reform era, citing a “range of local and global influences,” Potter surveys the Party leadership and policy choices and their effect on the development of the legal system. Focusing on several substantive local issues (e.g., crime, land use, family relations, and environmental protection) as well as international issues (e.g., trade, human rights, and legal education and practice), Potter demonstrates the conflicting role of law in contemporary China. That is, on one hand, law has become a powerful element in the socialist economic and political structure; on the other hand, law is increasingly dependent upon the Party leadership. In the absence of an independent law, arbitrary governmental behavior remains difficult to contain, much like in the Qing dynasty, the Republic Era, and the early period of the PRC.

Chapter 2 examines the role of law in providing political...