Good things come in pairs. For the study of Chinese law, the consecutive publication of two edited volumes by Cambridge University Press in 2017 and 2018 is an indicator of the growing popularity of this academic field. The two books are quite complementary in contents: Yun Zhao and Michael Ng's volume is a broad overview of Chinese law in history and at the present, while the volume edited by Flora Sapio, Susan Trevaskes, Sarah Biddulph and Elisa Nesossi provides an in-depth analysis of symbols and discourses related to justice in China. Both volumes are the results of truly international collaboration – contributors include dozens of experts on Chinese law based in the Asia-Pacific Region, Europe and North America, and the editors are based in Hong Kong and Australia, respectively. Most chapters are concise, informative and highly readable. Taken together, the two books have surveyed the vast landscape of China's legal system with both strong contemporary relevance and a nice historical twist.
Let me begin with Justice: The China Experience. The book starts with a simple yet enigmatic concept: justice. As the editors confess in the introductory chapter, they share two main assumptions about justice (p. 8). First, justice practices are not only instrumental but also performative. Second, certain politico-legal discourses frame how justice is articulated by both the Party-state and the people who challenge the state's worldview. Accordingly, the book focuses on the performative nature and discursive frameworks of justice in the Chinese context, with chapters ranging from the legacy of Confucian and Legalist notions of justice (chapter three) to contemporary advocacy initiatives (chapter nine), from weaponizing the rule of law (chapter five) to the politics of labour dispute resolution (chapter 13), from perceived justice of migrant workers (chapter ten) to notions of justice in the punishment of prostitution (chapter 12), and so on.
After taking the readers to nearly every corner of the Chinese legal system to ponder the discursive meanings of justice, the book ends with a fascinating conclusion that begins with a discussion of ceremonial columns (huabiao), a “heavily stylised representation of a dagger-axe” (p. 379) erected at the gates of palaces and tombs in imperial China. Huabiao was a symbol of “the power to take life, or allow life to be lived,” a prerogative “vested in the mystical body of emperors and kings” (p. 379) before the rise of the modern nation-state. What are the symbols of justice in today's China? The editors argue that justice is both a spectacle and a text. It is both constructed by the Party-state's official performances or discourses and contested by the social forces inside and outside the state's legal apparatus, such as police officers, lawyers, workers and netizens. In spite of the Chinese state's “weaponisation” of the rule of law (chapter five), justice has symbolic power beyond its instrumental value. Like huabiao, it needs to be displayed and performed. This is perhaps the most significant lesson from this outstanding volume.
Chinese Legal Reform and the Global Legal Order is a broader and more ambitious effort to provide a bird's-eye view of the past and present of Chinese law. It is less organized and less focused than Justice, yet it offers a rare opportunity for scholars of Chinese legal history and contemporary Chinese law to speak to one another and contemplate together on how China's legal system interacts with the global legal order. A key question that the book investigates, as Li Chen puts elegantly in chapter ten, is why “the Chinese legal system will continue to appear too foreign to the Chinese and too Chinese to foreigners” (p. 210). Other historical chapters in the volume, such as Michael Ng's chapter on Chinese legal transplantation in Hong Kong's common law (chapter nine) and Billy K. L. So and Sufumi So's chapter on the transplantation of commercial arbitration in early 20th-century Shanghai (chapter 12), are good illustrations of how the global legal order has influenced Chinese law, and vice versa, since China began its engagement with the modern Western powers in the 19th century. Maria Adele Carrai's chapter on China's unilateral abrogation of the Sino-Belgian Treaty of 1865 in 1926 (chapter 13) is another fascinating case study of how China learned to engage with international law.
What is the relevance of these historical studies for contemporary Chinese law? Part one of the book gives some clues. The four chapters on punishing minor crimes (chapter two), presumption of innocence (chapter three) and human rights (chapters four and eight) present different ways the global norms shape the Chinese justice systems. Sarah Biddulph argues in chapter two, for example, that punishments after the abolition of the re-education through labour (laojiao) system created an overlapping space between administrative and criminal laws in which drug dependents, sex workers and others subjected to minor offences were situated. Accordingly, legislative and policy reforms were made to set up a series of new procedures and punishments (e.g., criminal reconciliation) to fill in the gap. Many of these procedures resemble legal experiences elsewhere (e.g., Germany, Japan, Taiwan or the United States), yet they are also distinctively Chinese in the particular context of the post-laojiao world. Similarly, Xifen Lin and Casey Watters demonstrate in chapter three how the presumption of innocence, arguably a global norm diffused to China, was enforced in limited and distorted ways in the Chinese judicial system, which, in turn, calls for a broader definition of the concept in order to fulfil its mission in protecting the rights of criminal suspects and defendants in China.
It is evident from those chapters on criminal justice that what the late-Qing and Republican governments struggled with in the early 20th century in connecting China with the global legal order is an ongoing, if not continuous, process of legal change that has extended well into the early 21st century. Even in seemingly more global-looking areas of law such as securities (chapter five), international trade (chapter six) or maritime law (chapter seven), convergence and divergence are simultaneously at work in shaping contemporary Chinese law. For instance, the launch of the free trade zones (FTZs) from 2013 onwards, as Wenwei Guan shows in chapter six, was a “selective adaptation” of trade liberalization policies, which reflects the so-called “Beijing Consensus” with its focus on self-determination rather than the free-market ideology characterized by the Washington Consensus. This kind of “selective adaptation” is an important reason why Chinese law often appears “too foreign to the Chinese and too Chinese to foreigners” as observed by Li Chen in his historical chapter (chapter ten).
In short, the two edited volumes can help readers navigate the growing literature of Chinese law from two complementary angles: one focusing on symbolic and discursive processes and the other emphasizing global-local dynamics. In contrast to the common wisdom that Chinese law is a highly instrumental system that primarily serves the interest of the Party-state, the collection of studies in these two books give anyone who seeks to go underneath this stereotypical view and fully appreciate the complexity and serendipity of China's legal system from the late 19th century to the present a great source of information. Furthermore, they also provide a cutting-edge and useful encyclopaedia of authors and references in the field of Chinese law. Even for non-specialists in China, many chapters are still useful guides to various areas of comparative and international law. As China is rapidly transforming itself into a global economic and political power, its legal system and discourses of justice might also exert influence beyond its borders. In this sense, the significance of the two books awaits testimonies of the future.