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Pitman B. Potter, The Chinese Legal System, Globalization and Local Legal Culture
Here is a salutarily realistic book on the law in the People's Republic of China and the place that it occupies within the political system, the economy and society. In six chapters and about 140 densely but lucidly written pages (followed by an extremely useful 75-page assemblage of notes), The Chinese Legal System sets out a rigorous and fairly complete survey of the enterprise, begun in 1979, of rehabilitating, and selectively adapting Chinese law to international standards. In its conclusionand, plainly, throughout the bookthis study marks out the work still to be done on the Chinese legal system to enable a rule of law and democratic politics to emerge or, at the very least, some respect by China for the norms prescribed by the World Trade Organisation (WTO), which the country has just joined. Pitman Potter is an American who has been settled for a long period in Canada, where he directs the Institute for Asian Research of the University of British Columbia; he is one of the leading specialists on contemporary Chinese law, and particularly well suited for the present task.
Those familiar with Potter's writing will recognise in various chapters analytical elements that he has published earlier in the form of articles or contributions to collaborative studies. Thus, the central enquiry of the book revolves around an idea that the writer has been developing for a number of years: the permanent tension existing between, on the one hand, legal norms outside China and, on the other, the legal culture within. Outside, he sees the norms as generally liberal and Western but now globalised, those from which Chinese reformers would wish to draw their inspiration; inside, he sees the state continuing to play a dominant role for reasons both traditionalthe imperial pastand modernthe communist revolution and the fear of dependence. But the construction of this book is new and original. Potter reminds us from the start how a basically instrumentalist and formalist approach to law, as favoured by Deng Xiaoping and his successors, has enabled China to overcome this contradiction between the influence of Western law and the national character by selectively adopting and adapting the former (Chapter 1). In the next (Chapter 2), he leads us into the maze of reforms of the politico-legal system to emphasise, quite rightly, their limits. These apply to the relative increase in the power of the National People's Congress, to the subordinationstill very strictof the courts to the institution of the Communist Party, to the judicial controlstill in its infancyof the administration and even to the impactdisappointingly unreliable to say the leastof CIETAC (China International Economic and Trade Arbitration Commission). Chapter 3 is devoted to contract law, one of the key areas of legal reform: indeed, recognising the legal force of contracts and also the autonomy of the contracting parties, in particular where the state is concerned, is essential to the building of what one might be tempted to call the economic rule of law. The writer shows that the unified law of contracts, promulgated in 1999 and enthusiastically welcomed, is far from removing doubts about China's capacity to accept the two principles mentioned above, sacrosanct as they are to Western lawyers. This difficulty arises, in part at least, from the persistent ambiguities of ownership agreements (land, developed sites, enterprises, industrial and intellectual property), discussed at length in Chapter 4. In effect, the state continues to occupy a central role, both as mediator and as owner: in other words, more than in most other countries, it remains in this field both judge and litigant. Next comes a chapter on human rights, which far from being limited to the problems of applying new penal codes (criminal law and procedure) proceeds to the important question of labour rights and other economic and social human rights (trade union law, social security). The book closes with a summary of the state of the law governing economic relations with the rest of the world on the eve of China's accession to the WTO (Chapter 6), and a description of the difficulties that the integration of China to the world economy will cause or intensify.
After closing the book, readers may have no illusions left as to China's capacity to introduce the rule of law. But they will not, for all that, have found answers to all their questionsfor two rather contradictory reasons. On the one hand, it is virtually impossible for the Chinese legal system, despite the reforms introduced in the second half of the 1990s, to respect the rules of the WTO in the area of legal reform: in the matter of transparency of regulations, conformity of local rules to national laws, equal treatment for domestic and foreign firms and, above all, recourse to legal action against the administration and the independence of the courts, the distance separating Chinese rules and practice from international standards is unbridgeable. If, in the first two areas, we may hope for some progress, one can hardly expect any real change in the situation without a change, not merely a change within the political regime, but a change of regime. Admittedly, the writer acknowledges that it would be delusory to expect China totally to comply with WTO standards; in his view, appropriate compliance or, more exactly, acceptable non-compliance should be required (p. 141). The question is whether the subordination of the judges to the Communist Party is an acceptable infringement of the standards. The answer ought obviously to have been no. It is yes for the following reasons.
Potter not so much discusses but rather interprets the question of the progressive development of contemporary Chinese law. We are all aware of the continuing political and cultural resistance; but is there not detectable a basic tendency in Chinese legal reform towards greater physical and moral independence of the individual, especially in relation to the state, towards a certain professionalisation of the courts and of lawyers and towards a more extensive role for the courts? Still more significantly perhaps, is the dialectic of advance and resistance limited to a contrast between contributions or loans from abroad and local obstacles or restraints? Despite its residual ambivalence about the law (p. 54), is not Chinese society itself one of the actors in this transformation? The desire for justice and equity, an essential element in Chinese legal culture, is growing. It is stimulated by the widening of inequalities, by the abuse of power among the governing class and also, we should remember, the new possibilities of defence against authorityor against its bureaucratic and economic networksthat the legal reforms have brought about (1). In this respect, the many welcome examples of legal cases offered by the writer do not betray any evident sense of changewhether for the better or for the worse.
Nonetheless, The Chinese Legal System is a timely publication. It will help the reader keep a cool head in the face of the political and legal changes China may undergo, as some are hoping for, and to evaluate what this developing countryeven as an active and well-intentioned member of the WTOcan and cannot achieve where legal reform is concerned.
Translated from the French original by Philip Liddell
1. On this subject, see Isabelle Thireau and Wang Hansheng (sous la direction de), Disputes au village chinois, formes du juste et recompositions locales des espaces normatifs, Editions de la Maison des sciences de l'homme, Paris, 2001; Isabelle Thireau and Hua Linshan, Le sens du juste en Chine. En quête d'un nouveau droit du travail, Annales, Histoire, Sciences Sociales, No. 6, November-December 2001, pp. 1283-1312.