Abstract
Chinese culture and law have many features. Both have been flexible and adaptive for centuries and, both were radically reshaped in the twentieth century. With a focus on China’s attempt to accelerate its legal and criminal justice reform efforts in the past two decades, this study shows in a limited fashion what the effects of some of these innovations have been: they are modest at best. The current Chinese juridical practice is set in a political climate that can be defined as adaptive authoritarianism where elements of the rule of man, rule by law, and rule of law coexist. The field of Chinese criminal justice can be figuratively described as a “fenced-off playground with paternalistic guards.” (The Economist 2013) There is a general recognition that China’s economic ascendance in recent decades has created a genuine dilemma pitting a liberated (and increasing liberal) grassroots economic spirit against the old, stifling political constraints induced by the government. In particular, researchers have noticed the expanded expectation for the Chinese court to serve not only as impartial and effective adjudicators of private disputes but also as necessary checks on state power (Liebman 2008).
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Notes
- 1.
The quote was originally used to describe the current status of Chinese internet.
- 2.
The President of the Supreme People’s Court pointed out in his 2009 Annual Report (SPC 2010) to the National People’s Congress a major problem due to shortage of judges overall, quality of judges in the peripheral regions (central and western), and exploding caseloads in large and medium sized cities. See also Liebman (2007).
- 3.
It is allowable in simplified criminal trials where the defendant has already pleaded guilty to the charge and the estimated sentence is under 3 years of imprisonment.
- 4.
Liang (2008) describes that procurators sometimes refuse to stand up when the judges are entering the courtroom to showcase their equal or superior occupational status.
- 5.
A recent example is the 2011 Annual Report released by the US Congressional-Executive Commission on China. The Report states that “During the Commission’s 2011 reporting year, the Chinese government’s failure to uphold legal protections for criminal suspects and defendants, promote transparency of the judicial process, and implement legal reforms highlighted ongoing programs within the criminal justice system.” (p. 80) The Report went on to introduce actual cases (with real victims’ names used) in each of the seven areas: abuse of police power, pretrial detention and prisons, arrest and trial procedure issues, arbitrary detention, medical parole, and capital punishment.
- 6.
China participates irregularly in the World Value Survey (WVS). The 2007 WVS-China survey and the 2006 WVS-USA survey are the closest comparison we can have.
- 7.
Pye’s ([1968] 1992) writing on the spirit of Chinese politics touches upon the paradox between a Chinese “superiority complex” (i.e., historical greatness and longevity of Chinese civilization) and a Chinese “inferiority complex” (e.g., scientific development, modern economic, military, and political power). The Chinese lack of sustainable enthusiasm and conviction for westernized reforms and modernity is in sharp contrast to the experience of Japan.
- 8.
For example, Liebman (2007) cited the explicit warning from Cao Jianming-the Vice-President of Supreme People’s Court that the People’s Courts need to follow Party leadership and avoid negative influence of Western rule of law theory.
- 9.
The propaganda operation is increasingly sophisticated. For example, a White Paper on Chinese Judicial Reform (State Council Information Office 2012) is released via Internet with the assistance of the State Internet Information Office. The White Paper manages to avoid making any mention of CCP leadership or directives. It references Chinese traditional legal heritage and uses language such as “learning from the legal advancement in human civilizations” prior to descriptions of western-inspired reform measures such as sentencing guidelines (where American influence is evident), case guidance system (inspired by but distinguishable from the Common Law Case Precedent system), case management system (drawing from modern management theory), simplified trial procedure (which came out of a plea bargaining experiment), judicial transparency and democracy, right to counsel, right against self-incrimination, exclusionary rules, witness protection system, community correction, and etcetera.
- 10.
Unlike the hammer-shaped “gavel” used in the west, an “oblong, square piece of hardwood of about one foot long” was used by Chinese imperial magistrates when conducting trials in ancient time. Chinese call it 惊堂木 or “wood that frightens the hall.” (van Gulik [1956] 1997: 315).
- 11.
The so-called “people’s jury system” uses carefully selected local citizens to participate in trials in consultation roles. The group (7–9 people, aged 23–70) may express opinions that are not legally binding. The “innovation” is intended to enhance legitimacy of the court and increase transparency of the trials.
- 12.
The deposed former CCP General Secretary Zhao Ziyang commented in an audio-recorded interview before his death that “the primary stage of the socialism is capitalism.” The official uses of languages such “socialist market economy” rather than “capitalism” and “socialist rule of law” rather than the common (western) notion of rule of law can be viewed as another example of Bourdieusian “misrecognition.”.
- 13.
Likewise, Stanley Lubman (2003) made the study of law in action (rather than texts) a major recommendation to western scholars.
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He, N. (2014). Conclusion: Making Sense of Chinese Criminal Trials. In: Chinese Criminal Trials. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-8205-5_9
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