BOOK REVIEWS

Robert Heuser, Einführung in die chinesische Rechtskultur

In his new book, Robert Heuser, Professor of “Chinese legal culture” at Cologne University in Germany, intends from a perspective that is both historical and comparative (p. 28), to give an overall view of the “totality” of the legal order of contemporary China (p. 17), while putting the emphasis on the People's Republic of China (PRC). He defines the “legal order” as the sum of the juridical rules in force, of their interpretation in case law, and of the structures and responsibilities of state institutions. The notion of “legal culture” encompasses the juridical order, its functioning, its influence on real life and its relationship with the past (pp. 24-25). On the basis of this programme, which is set out in the “Preface” (pp. 17-18) and in the “Introduction” (pp. 23-40), Heuser presents in 17 chapters “the factors that form China's legal culture” (pp. 41-184), “the sources of Chinese law” (pp. 185-238), “the courts and the lawyers” (pp. 239-258) and “the objectives of the law” (pp. 259-470). In the “Conclusion” (pp. 471-472), he examines the “manifestations and possible orientations of future changes in China's legal culture”. Practically every field of law in the PRC is treated more or less exhaustively. Concrete cases are used sometimes to illustrate the subject under discussion, and nearly always the academic opinions of certain jurists are advanced in detail (with an inclination by the writer towards “progressive” positions, a marked sympathy with the spirit of the late 1980s). Only the commentaries on private international law (pp. 371-374) and public international law (pp. 193-194) are written with less accuracy and diligence than the other parts of the book. With that reservation, the reader is comprehensively informed of the developments of legal mechanisms in the PRC between 1949 and 1998. Heuser rarely omits any significant legal rules—from our own point of view, a rare but an important omission nonetheless are the Regulations Concerning Complaint Letters and Complaint Visits (xin fang tiaoli) of October 28th 1995 (these should have been mentioned on p. 293). It is interesting to note that the writer does not dwell unduly on the so-called “Confucian” nature of the PRC and that, on the contrary, he emphasises the relationships between the ancient philosophical school called “Legists” / “Legalists” (fajia) and certain new tendencies in the legal system of the PRC; and he frequently mentions the persistent influence of Marxist and Soviet socialist concepts (pp. 37-38, 42, 146-150, 156, 354, 385, 402, etc.). Even so, in Heuser's view, Chinese legal culture does not belong to the family of socialist law, but constitutes a legal culture sui generis (p. 39). There are several elements that moderate just a little the high opinion we have formed of this book. Some legal terms are not translated in a coherent form and some proper nouns are not correctly reproduced. Thus, the translations of the Chinese words fa and falü are not consistent. Heuser alternates between translating these terms as “law” (Recht, pp. 26, 32, 59, 80, 293, 300, 472, etc.) and “statute” (Gesetz, pp. 32, 68, 71, 79, 93, 220, 288, 296, 382, etc.). The glossary of Chinese characters does not contain all the Chinese words mentioned in the text and the list of abbreviations is not complete. Heuser's book shows weaknesses when it comes to the extra-legal field of the socio-political environment created by the Chinese Communist Party. For its “social engineering”, the Party uses not only the laws but in principle all the elements of the so-called superstructure, such as the language, the fine arts, literature, officially recognised religions, customs, ethical standards and, primarily, the Party's own norms (luxian, fangzhen, zhengce), which dominate Chinese law (fa/falü). The basic defect of Heuser's book is the overestimation of the influence of law in the PRC. This tendency to see the world through lawyer's spectacles is closely linked to his way of seeing the “law” more in the very wide German sense of Recht than in the narrow Chinese sense of fa / falü. For example, the traditional Chinese rites are described as “customary law” (Gewohnheitsrecht, p. 71). Moreover, Heuser considers political norms (zhengce) as a source of law (fayuan) (pp. 38, 206-208, 238). One explanation for this arises from article 6 of the General Principles of Civil Law of 1986, which lays down that civil activities must be in conformity with the law and, in the absence of law, “must be in conformity with the ‘political norms' (zhengce) of the state”. Another argument would have it that “political norms” function in the same way as laws (p. 187) and that, in the mind of the average Chinese peasant, the difference between fa and zhengce is, at the very most, tenuous. If one adopted Heuser's viewpoint, one would also have to consider as a “source of law” social morality, since according to article 6 of the Regulations on the Organisation of People's Mediation Committees (June 17th 1989) “mediation must be practised in conformity with the law, […] the political norms (zhengce) of the state and, in the absence of such prescriptions, in conformity with social morality (shehui gongde)” (p. 212, note 9). To our knowledge, no Chinese lawyer is willing to consider political norms as a part of Chinese law. The official tendency to transform political norms into law demonstrates precisely that political norms are not a “source of law” (fayuan) in themselves. Here we should stress that Robert Heuser's position, which consists in trying to squeeze nearly all the social norms that he perceives in China into a one-size-fits-all category called “law”, reflects a very common tendency in the West, the influence of which is also spreading among some Chinese and Japanese lawyers. In sum, Heuser is merely repeating what is said by nearly all Western specialists (1). Heuser's book has been honoured, in China, by a laudatory review written by the eminent Chinese lawyer Mi Jian, Professor at the China University of Politics and Law (2). For our part, we shall recommend this book to anyone wishing to undertake a detailed and up-to-date survey of the Chinese legal world.

Translated from the French original by Philip Liddell