Bird in a Cage: Legal Reform in China after Mao (review)

Although Stanley Lubman modestly professes that his goal is to enhance our understanding of China by focusing on legal institutions, particularly those relating to dispute resolution, he in fact accomplishes much, much more in this eminently readable overview of law in the People's Republic of China. Along the way, Lubman discusses the role of law in traditional, Maoist, and contemporary China; criminal, civil, economic (domestic and foreign), and administrative law; the complicated processes of lawmaking, interpretation, and application; judges, the legal profession, and the relation of the courts to the other arms of the judicial system (the procuracy and the police), the bureaucracy, and the Chinese Communist Party (CCP); and, of course, mediation (extrajudicial and judicial), arbitration, and adjudication. Lubman treats this wide range of topics with sensitivity and insight.

The depth of Lubman's insight is the product of some thirty years as a student of the Chinese legal system. Several of the chapters are based on articles written in the 1960s. Slightly revised and updated, these articles are, for the most part, seamlessly integrated into the narrative and structure of the current work. Apart from being a longtime China hand, Lubman is particularly well suited to comment on China's legal system by virtue of his dual career as a practicing lawyer and academic. Too often, legal scholarship on China consists of recitations and summaries of laws without attention to how the laws actually work, an approach especially problematic given the large gap between law on the books and law as implemented in China. Lubman's many years of practice serve him well in bridging this gap. At the same time, he avoids the tendency of many non-practitioners to dismiss too readily China's efforts to rebuild the legal system and the increasingly important role of law in governing the country. While it may look as though China has no law to those far removed from China who are fed the sensationalist accounts of the legal system in Western newspapers and movies, practitioners know that laws do matter and that "China's legal institutions today are more vigorous than any that China has ever known" (p. 102).

As an academic, Lubman is able to avoid the tendency of many lawyers practicing in China to miss the forest for the trees. Lawyers are often impatient; they expect China to produce a fully developed legal system overnight, ignoring the historical context and the fact that China since 1978 has had to rebuild its legal institutions virtually from scratch. Many foreign lawyers who write on China also assume that all legal systems function in the same or largely the same way, overlooking the differences between common- and civil-law countries and the wide variety of institutional arrangements even within common-law or civil-law countries. The years spent teaching in law schools have provided Lubman the distance and occasion to step back and see the forest, reflect on trends over the past twenty-five years, and place current developments in a larger historical and intellectual context.

In canvassing each of the topics mentioned above, Lubman demonstrates an admirable sense of what is important. In the process, a general picture emerges of the legal system and its problems. At the top of the list is the lack of a unifying concept of law resulting from a fundamental ideological struggle: "Two conflicting principles have been bound together at the core of Party policy since legal reform began. Party policy dictates that law must serve the Party-state, but at the same time declares that China must be governed by law and aim to attain the rule of law" (p. 123).

Also high on the list is a legislative system in disarray. The lawmaking process is confusing; many entities are authorized to pass legislation, resulting in inconsistent enactments. Clearly delineated doctrines of delegated and inherent authority have yet to be developed. The preferred style of legislation exacerbates...