Cambridge, Malden, Polity Press, 2013, 267 pp.
Review by Rogier Creemers
How does one begin to understand Chinese law? How does one do justice to the complexity of the legal (re)construction process that has taken place since the late 1970s? Observers must navigate between the Scylla of teleological approaches that too easily assume trajectories towards ill-defined notions of rule of law and democratisation, and the Charybdis of historical determinism. They must do justice both to a continuing dominant view of law as an instrument of state power and the agency of lawyers, judges, academics, and activists inside and outside of the legal system who seek to develop and apply their own conceptions of professionalism and justice. They must explore the influences of socialism and foreign legal transplants, and the impact of autochthonous traditions and concepts. They must cater to the preconceptions of legal scholars, for whom the relative immaturity of China’s legal system is sometimes difficult to conceive, and those of China experts, who are often predisposed to seeing law as merely a continuation of politics and power and lacking autonomous existence.
Enter Pitman Potter’s most recent book China’s Legal System, which seeks to provide the sort of primary introduction to this topic that has, thus far, been sorely lacking. Potter’s approach in this volume is to present China’s legal system as a historical artefact, constituted through the vagaries of twentieth century statecraft. In the first section, Potter leads us along the legal development from the last days of the Empire through the Republic and on through the People’s Republic. He succinctly identifies continuities, such as the reinterpretation of relational justice, and disruptions, paying particular attention to Maoist nihilism and the subsequent restoration of some idea of law as central to contemporary governance.
The next three sections address how law has served efforts to generate political stability, economic prosperity, and social development. Under the heading of political stability, Potter, like China’s rulers, lets Party leadership precede a discussion of the renewed formal, constitutionally defined structures of state power, including the National People’s Congress, administrative agencies, courts, and legal practice. Lastly, he situates criminal justice and administrative detention in a broader coercive order aimed at deterring behaviour deemed to endanger stability. The section on economic prosperity explains how, after the demise of class struggle as a dominant political concern, the ideological emphasis shifted to the “productive forces” in the process of development. Starting from notions of “corporatism” and “clientelism,” Potter from the outset qualifies the extent to which law has been able to provide predictability and certainty for economic actors. Furthermore, by contrasting economic law as a mode of state policy implementation and as a facilitation of autonomous economic interaction, Potter puts his finger precisely on the nub of some of the most conflicting elements in the relationship between law and the market. At a more technical level, this section addresses the fundamental elements of contract and property law, as well as taxation and its relationship to economic growth. Turning to questions of social development, Potter points at the profound conflicts between the single-minded pursuit of economic growth and social concerns, which he divides into traditional and emerging categories. On the traditional side, we find labour relations, healthcare, education, and the rights of women and ethnicities. Emerging concerns include media and the Internet, environmental protection, and corporate social responsibility. Yet, in spite of efforts to create regulatory norms in these fields, Potter acutely draws into question the permanence and consistency of the government’s commitment to ensuring implementation in practice.
The last section is dedicated to Chinese interaction with international law and engagement with international regimes. It ably describes the ambivalence with which these matters were approached: during the Mao era, China denounced international law as bourgeois, yet sought to join the UN. After 1989, China was ostracised from international society, yet rapidly expanded its dialogues in areas as diverse as trade and human rights. China’s WTO membership has had a profound influence on its domestic legal order, yet in other areas, such as environmental regulation, China has sought to limit its commitments.
This volume is principally directed at students, and must therefore be evaluated as such. Potter’s narrative recounts little that isn’t known to more experienced observers and scholars of Chinese law, nor does it offer novel theoretical insights. But that is not the point. Rather, this book must be assessed on the contribution it could make to providing the next generation of China law researchers with the initial tools and concepts with which to tackle the issues mentioned earlier in this review. Within these parameters and the approach that Potter has taken, this book succeeds admirably. At all times, Potter avoids unnecessary jargon and abstruseness, and provides useful discussion questions and reading suggestions at the end of every chapter. Substantively, the nuance and sensitivity of his previous works shines through. Perhaps most importantly, Potter shies away from making grand statements on the future of Chinese law, leaving it to the reader to ponder the complex issues he raises.
The answer to the question of whether this reviewer would use this book in an introductory course on Chinese law is unreservedly yes. However, it is also necessary to point out that despite the breadth of the issues tackled in this book, it is not comprehensive. It tells us relatively little about, for instance, the processes of legislation and enforcement, or about black letter law in many areas. This criticism should, nevertheless, not be laid at Potter’s feet. Rather, the pithy and incisive insights with which this volume is replete should enable a course organiser to set deeper discussion topics, supplemented with more specialised reading.
Rogier Creemers is Rubicon Scholar at the Centre for Socio-Legal Studies, University of Oxford (email@example.com).