BOOK REVIEWS

Chen Jianfu, Chinese Law, Towards an Understanding of Chinese Law, Its Nature and Development

We have already noted with interest the appearance of the brilliant Bird in a Cage by Stanley B. Lubman((1). Here is another work of synthesis devoted to the latest developments in mainland Chinese law and the analysis of the nature of China’s legal system. Indeed, Chen Jianfu’s intention is to recount, in 415 pages, the major moments of a complex legal system that is still poorly known. The result of six years of research, Chinese Law is built on a simple and clear structure through 12 completely integrated chapters (introduction, historical analysis, constitutional law, sources of the law and codification, administrative law, criminal law, criminal procedure, civil law, family law, contracts, business law, investment and foreign trade law, conclusion), which tackle in great detail the major aspects of Chinese law (fundamental law and basic branches).

The first two chapters deal with Legal Culture, State Orthodoxy and the Modernisation of Law, then with Experience of Law in the PRC using an interdisciplinary approach and with a constant concern for historical accuracy. Due to the fact that Chinese law is profoundly rooted in history, Chen Jianfu is perfectly correct to insist upon a Confucian heritage((2), just as he insists upon the process of Westernisation of the law embarked upon at the end of the nineteenth century, shortly before the fall of the Qing dynasty, and carried on in a different way by the Republicans (pp. 3-30). As he acknowledges in the introduction to the second chapter (p. 31), the history of law in the People’s Republic of China (PRC) does not begin in 1949. Indeed, right throughout the work Chen Jianfu expresses his thoughts through a historical perspective, without which it would be impossible to understand the movement towards codification and institutionalisation, which began at the end of the 1970s. The fifth and sixth sections of the second chapter (“Legal Experience Under Deng’s Leadership” and “After Ideology—Continuing Westernisation/Modernisation of Chinese Law”) are particularly illuminating in this respect. He analyses the gradual transformation of a Marxist legal system into a Weberian one (p. 55): “Law-makers in China are looking for experience and models in Western countries, particularly in the pursuit for ‘rational’ law since 1992. In doing so, Chinese law is increasingly becoming ‘Weberian’ rather than ‘Marxist’”.

The chapter that deals with codification and that should be read in conjunction with the passages devoted to the elaboration of constitutional law, is a singular contribution to a subject that has hardly been touched upon (pp. 57-96)((3). The still open question of the hierarchy of norms is worthy of comment. If it is accepted that the Constitution (xianfa) is at the top of this hierarchy ahead of the basic laws (jiben falü) and the other types of laws (qita falü), nothing is said about the place of the numerous local legislation and laws and administrative regulations (difangxing fagui) often adapted locally as test pieces. The proliferation of often conflicting laws and the total absence of control over constitutionality can only discredit any legislative effort by making it “undemocratic, authoritarian and elitist” (p. 124). At a time when China is more than ever determined to base its development on its opening up to foreign capital, we could have expected some commentary from the author on the absence of measures concerning the status of international treaties ratified by China (I found only one or two allusions to the subject in the chapters on contract, and investment and foreign trade law). If the superiority of treaties over laws is implicitly granted, this is not enshrined in the PRC’s Constitution, something that gives rise to the problem of the necessary harmonisation of domestic and international law((4).

By way of conclusion, the author makes a measured but optimistic assessment of the undeniable progress that has been made in Chinese law in terms of codification and institutionalisation. Conscious of the limits of this normative evolution towards the much-vaunted yifazhiguo (rule of law) without any profound change in the political system, he calls for the practical realisation of the theories developed by Chinese jurists and sees in this a means of going beyond the present instrumentalisation of the law for ideological ends. However, Chen Jianfu warns those on China’s legal scene of the risks of the impossibility of or perhaps the partial enforcement of the legal provisions that would end up by helping to make them meaningless (see Chapters 6 and 7 on the law and criminal procedures).

The whole of the work demonstrates great intellectual honesty, which is clearly apparent from the very beginning in the Introduction: “In short, law is seen as having to be used to establish stability and order for economic development. The concern for justice and humanity and the protection of basic human rights have taken, and continue to take, a secondary place in determining and propelling legal developments”. It is also fitting to pay tribute to the richness of the work’s critical apparatus. The profusion of reference notes and the very solid bibliography (38 pages) show an in-depth knowledge of the field and an array of sources by a writer who teaches not only Chinese law, but also international law at La Trobe University in Melbourne, Australia.

We can therefore only praise the quality of this many-sided analysis; it being no easy task to formulate a substantive commentary on it. Some gaps common to many legal works on China may, however, be worth highlighting. It would have been good to have seen an important place given to jurisprudence, which now abounds in all areas of Chinese law and is taking on a growing importance in the interpretation of texts, as the author himself emphasises in the chapter on the sources of the law: “As Chinese laws (falü) are mostly made in general and vague (p. 106). In addition, experts often tend to forget that a jurisprudential analysis is, in its primary meaning (the science of law), the very essence of legal study.

The absence of a few texts of standard pieces of legislation or even some choice extracts from these texts provided as an appendix is perhaps regrettable. A glossary of the very many Chinese expressions and terms used throughout the book would have also been useful.

One cannot, however, do other than to warmly recommend, to both the specialist and the general reader alike, this excellent overview that puts the many stereotypical publications that are all too often trotted out on the subject in the shade.

Translated from French original by Peter Brown