Balancing Society and the Individual in Judicial Justice

Abstract

The importance of reviewing Chinese criminal law and supporting legal discourse, so as to identify and confirm the meanings which the Chinese attach to their newly emerging legal concepts, is obvious.¹ Professor Jonathan Hecht is one commentator who has noted the importance of monitoring and evaluating the Chinese criminal law system so as to create ‘a base of knowledge about Chinese law and practice from which to promote China’s compliance with international norms’.² Western evaluation has often critiqued Chinese ‘state instrumentalism’ and ‘legal positivism’.³ The current transition in Chinese politics has generated controversy over two related questions. How best to describe the essential nature of the contemporary Chinese state: as, for example, ‘mature totalitarianism’, ‘consultative authoritarianism’ or ‘fragmented authoritarianism’? And is the contemporary trend more towards civil society or state corporatism? This chapter’s analysis asks a third, but obviously related, question. How does change to the underlying principles of the criminal law system factor into contemporary regime change, as the jurisprudential axis of the criminal law shifts from class struggle to market reform?