This collection of essays by nonlawyers sets a great benchmark for Chinese law studies. Contemporary Chinese law studies, especially those conducted by lawyers, have not yet developed a consistent methodology for analyzing the fast-growing and complex legal system in China. One major obstacle is the difficulty of evaluating law enforcement and spillover effects on other institutions and on society as a whole. Consequently, lawyers frequently use state statutes as indicators of social changes. By contrast, the contributors to this book address a range of issues that are beyond rules and doctrines and are based on empirical evidence, discussing law and society, state and law, and legal mobilization. By looking at laws in action, they explore the rationale behind institutional changes and examine the ways in which laws may take root in China.
A neo-institutionalist approach is taken to address the various topics by analyzing interactions between institutions and actors under the concept of legal mobilization, such as administrative litigation vis-à-vis rural villagers (Kevin O'Brien and Lianjiang Li), labor law and the xinfang (letters and visits) system vis-à-vis workers (Isabelle Thireau and Hua Linshan), and anticounterfeiting laws vis-à-vis foreign investors (Andrew Mertha). Indeed, legal mobilization involves multiple players, especially state actors. The authors coherently illustrate distinctive Chinese characteristics of legal mobilization by omitting one traditional actor—the lawyer—while emphasizing another power actor—the local government.
The absence of lawyers in legal mobilization, in fact, reflects China's “dispute pyramid,” illustrated in the introductory chapter. This pyramid conveys the message that the majority of the Chinese people tend to tolerate their injurious experience or simply resort to first-party (such as self-help or protest) and second-party mechanisms (such as guanxi) to address their grievance. Lawyers, by contrast, are involved in court activities at the top level of this pyramid, where grievance is transformed into legal claims, which ordinary people rarely resort to. Nevertheless, the introduction of the role of local state actors and their interaction with private actors indicate some significant changes.
With focus on the role of local government, the contributors demonstrate a distinctive characteristic of China's rule of law transition—a dual-track development. On the one hand, local officials' financial incentives drive institutional changes; on the other hand, however, legal reforms without economic impetus are stagnant with poor law enforcement. Mertha indicates that local officials started enforcing intellectual property laws mainly due to concerns about losing foreign investment. Mark Frazier points out that pension law reforms are mainly aimed at relieving the government from financial burdens and transferring the costs to the private sector. Perhaps most stunningly, H. L. Fu argues that the laojiao system, namely the notorious reeducation through labor camps, has abandoned its rehabilitation role and been transformed into a de facto state-owned enterprise that uses its labor force to bail out local governments' budgets.
By contrast, the performance of laws and institutions unrelated to the economy is far less impressive. Thireau and Hua indicate that aggrieved workers receive little protection through the traditional petition system. O'Brien and Li also show that the development of administrative litigation remains slow, and those who finally win their cases against local officials would have difficulty getting the verdicts enforced.
Nonetheless, the authors demonstrate that the actors' diverse incentives and strategies for legal mobilization may lead to institutional diffusion even within those noneconomic fields. One case in point is associated with the central government's intention to implement centralized legal reforms to curb local protectionism, which has undermined the Chinese Communist Party's control over the bureaucracy. Competition among state actors may also induce better law enforcement. Most interesting are the pragmatic strategies developed by private actors, such as laborers, villagers, and foreign investors, in the pursuit of their rights. They have acquired knowledge about the state actors' mentality and even taken advantage of tensions among state agents to turn the rhetoric of their legal rights into reality.
Researchers addressing China's legal reforms inevitably ask, often implicitly, can current legal reforms drive future democratization? One school of thought optimistically argues that China will eventually democratize along with its rule of law. Contributors to this book are cautious. With her finding about a rising rights consciousness, Mary Gallagher points out elsewhere that foreign investors in fact help thwart political reforms while opening up economic reforms (see Gallagher, “Reform and Openness: Why China's Economic Reforms Have Delayed Democracy,” World Politics 54, no. 3 [2002]: 338–72). Stanley Lubman offers a pessimistic view in a recent paper about the potential positive causation between legal reforms and democratization (see Lubman, “Looking for Law in China,” Columbia Journal of Asian Law 20, no. 1 [2006]: 1–92). At the end of the day, the prospect of democracy will depend on the outcome in negotiating the tension between idealism and legal instrumentalism. This book is a good source for readers who want to grasp the dynamics of Chinese legal reforms and develop a comprehensive framework for observation and analysis before jumping to any quick conclusion.
