Bird in a Cage: Legal Reform in China After Mao

Abstract

China has been building new legal institutions since 1979, and the Chinese leadership claims to be committed to attaining the rule of law. Bird in a Cage analyzes the principal legal institutions that have emerged and considers implications for U.S. policy of the limits on China's ability to develop meaningful legal institutions. The book first establishes the cultural and institutional context in which legal reforms take place. It traces the main features of pre-Communist Chinese legal tradition that sharply distinguish it from the West, the drastic impact on law of thirty years of Maoist rule, and the major economic and social changes produced by reforms that influence the operation of the new legal institutions. The current scene is marked by a partially marketized economy, a dilution of the control over society by the central Party-state, and expanded personal freedoms. Political decentralization has increased the power of the local Party-state and frequently produces strong alliances between local governments and businesses. Reform has also generated a crisis of values: Communist ideology is hollow, while corruption and disorder are increasing. The book analyzes the Chinese leadership's ambivalent policy, which praises the rule of law even while insisting on the dominance of Chinese Communist Party over Chinese society. The author then surveys the major reforms, which include creation of new rights and transactions in a remarkable flood of legislation, revision of criminal law and procedure, and the emergence of a nascent administrative law aimed at curbing bureaucratic arbitrariness. Against this background, the book examines in detail the principal institutions for resolving disputes. Extrajudicial mediation is still widely used but the yearly total of mediated cases is no longer increasing. Informal dispute-settlement is no longer infused with Maoism but is still a tool to maintain public order. The judicial system has been reformed and the courts' caseload is increasing, but the organization of the courts, the selection of judges, and the operation of the judicial process itself suggest that Chinese adjudication more resembles bureaucratic decision-making than judging in the West. The courts are still used instrumentally, to implement changing policies. Conflicting policy characterizes judges as professionals, but continues to view them as soldiers of the state. The book emphasizes the influence on legal reform of its historical, cultural and institutional context. The localism that has increased since 1979, for example, often distorts the outcomes in cases and undercuts the national character of the judiciary and of Chinese law itself. Influences that are traceable to both tradition and the Maoist period still lead officials and the populace to value legal institutions only lightly. But the reforms have also begun to change Chinese legal culture, and many Chinese are coming to desire greater legality and the stability it promises. The limited reach and slow pace of legal reform to date, together with continuing obstacles to further sustained reform, raise implications for US policy toward China. The author urges that on human rights issues, insistent but diplomatic pressure is preferable to public hectoring. On Chinese membership in the World Trade Organization (WTO), he argues that U.S. has not adequately stressed the improvements that China must make in its legal institutions in order to meet the transparency requirements that all WTO members are bound by treaty to observe. He further warns that the weakness of Chinese legal instititutions may give rise to large numbers of disputes that could overload the dispute resolution processes of the WTO. The book argues that U.S. policy makers must neither moralize nor assume that the rule of law is irrevocably alien to China. Chinese law can only grow slowly, no matter how urgently the West may desire quick progress, and Western expectations must be restrained.

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 265 citations exist upstream.