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December 3rd, 2013

Book Review: China’s Legal System by Pitman B. Potter

1 comment

Estimated reading time: 10 minutes

Blog Admin

December 3rd, 2013

Book Review: China’s Legal System by Pitman B. Potter

1 comment

Estimated reading time: 10 minutes

China’s struggle for the rule of law is at a critical juncture. As a key element of governance in the PRC today, China’s legal system affects not only domestic affairs but also China’s engagement with the world. But can a credible legal system emerge which protects the rights of citizens and international partners without undermining the power of the Party State? And is the Chinese Communist Party willing to embark on judicial reforms that may jeopardize its very survival? China’s Legal System is ultimately a thought-provoking discussion of the role of law in a dynamic and changing society, writes Stephen Minas.

This book review has been translated into German by Zoe Ng (Mandarin LN340, teacher Lijing Shi) as part of the LSE Reviews in Translation project, a collaboration between LSE Language Centre and LSE Review of Books. Please scroll down to read this translation or click here.

China’s Legal System. Pitman B. Potter. Polity. 2013.

Find this book: amazon-logo

By the time the Jinan Intermediate People’s Court took to the Internet to announce the guilty verdict of fallen political leader Bo Xilai, the court’s microblog account had attracted over half a million followers. Updates from the account had been reported in news media around the world.

The trial of Bo, a former member of the Chinese Communist Party’s powerful Politburo, underscored the scrutiny that China’s legal system faces as governments, markets, and media track developments in the world’s second largest economy. From the bankruptcy proceedings of one-time solar giant Suntech to the judicial reform reportedly flagged at the Communist Party’s  recent third plenum, China’s legal institutions have become a familiar sight in both the general and the business press.

China’s Legal System, by Pitman B. Potter, examines the structures and issues that lie behind these headlines. Potter is a professor of law at the University of a British Columbia who has written widely on different aspects of Chinese law, as well as a lawyer who practices in corporate law and arbitration matters involving China. The text is intended as a ‘research and learning guide’ for university students with general knowledge of China. Each chapter concludes with a set of ‘discussion questions’ and ‘suggestions for further reading’. (The book is part of Polity Press’ ‘China Today’ series and follows the excellent China’s Environmental Challenges.)

Potter’s analysis of the legal system of the People’s Republic of China (PRC) is distinguished by two features. First, he places the development of Chinese laws and legal institutions in their historical, political and economic contexts. This approach is particularly apt to reform-era China, which has pursued economic development in the wake of tumultuous periods of conflict and revolution. At the same time, particular legal issues are often deeply intertwined with China’s elite politics or political economy. Second, the book focuses on how law operates in practice, including an informative section on China’s courts and legal profession. While important laws and regulations are summarised, Potter goes beyond these to examine issues of enforcement, for example, concerning intellectual property rights.

China’s Legal System begins with an account of the ‘Development of the Socialist Legal System’ in China. This chapter begins with a brief but valuable introduction to contemporary China’s legal heritage. This includes Confucian ‘relational justice’, the flurry of law reform in the last years of imperial China, the laws of the Republic of China (which replaced the last dynasty) and legal practices in Communist-controlled base and border areas prior to the establishment of the PRC in 1949. Potter sees legal development in the years immediately following 1949 ‘influenced by contradictions between continuing revolution and institution-building’ and by conflicting beliefs about the value of formal law. The first PRC constitution was enacted in 1954; its drafting committee chaired by Deng Xiaoping. ‘I participated in the formulation of the Constitution’, Mao Zedong later recalled. ‘Even I can’t remember [it]’. Lawyers, judges and the law itself were repeatedly targeted by political campaigns, culminating in the disastrous Cultural Revolution.

Potter goes on to explain how the post-1978 leadership, centred on Deng, used law reform to restore order and facilitate economic development (with a joint-venture law among the first items of legislation). As China’s leadership pursued this instrumentalist approach, ‘the role of law has been focused on supporting substantive dimensions of economic development rather than building institutions and procedures that constrain the power of the Party/State’.

Image Credit: A man holds up documents describing his legal case as he sits in an
underpass, in which he currently lives, in Beijing (Sunny x CC BY-NC-ND 2.0)

The remainder of China’s Legal System is organised thematically, with Potter examining how law has been applied to three ‘challenges that confront the PRC today’: ‘Political Stability’, ‘Economic Prosperity’ and ‘Social Development’. While the book’s premise, that ‘law in the PRC today serves primarily as an instrument of rule for the Communist Party’, may itself be uncontroversial, its implications in the thematic areas identified can be intriguing. For example, Potter sees law’s ‘emergence … as a fully legitimate mechanism for governance’ (in the Chinese context) as having ‘opened new avenues for participation by an ever-widening proportion of society’.

A final chapter, on ‘International Engagement’, considers China’s participation in international regimes and foreign business relations. The PRC’s approach to international law has changed dramatically from the Cultural Revolution critique of ‘imposed policy preferences of bourgeois imperialism’. Today, argues Potter, the PRC participates in international regimes to further ‘its interests through the international system rather than in opposition to it’. Laws facilitating international trade and foreign investment are an example. Potter traces the expansion of foreign business relations from the predominance of the joint-venture model in the 1980s (a dynamic often characterised by the Chinese phrase ‘sleeping in the same bed but having different dreams’) to the many changes brought by accession to the World Trade Organization in 2001. By 2012, China had ratified over 90 bilateral investment agreements and Chinese official finance was playing a major role in China’s own overseas investment.

Potter is right to caution that ‘China should not be viewed as a passive recipient of international standards’ in this process of deepening international engagement. As Potter notes, senior Chinese officials have recently occupied key positions in international institutions such as the World Bank, the Asian Development Bank, and the International Court of Justice. The extent to which Chinese practices and policy preferences will influence international legal norms in the near to medium term is an open question. Transnational economic law and the international climate change regime are a couple of areas worth watching in this respect.

China’s Legal System is a thought-provoking discussion of the role of law in a dynamic and changing society. The text covers broad terrain and is necessarily concise, but there is something on most of the pages to prompt further reading or further research: China’s healthcare laws, approaches to media and the Internet and the interpretation of Hong Kong’s Basic Law are just a few examples.

Potter’s book would be of value both to China-watchers who are not specialists in law, and to lawyers and law students who are not (yet) focused on China. The issues canvassed by Potter may matter most to China’s 1.3 billion people and 200,000 lawyers, but they are also of increasingly international significance.

Stephen Minas is a research associate with the Foreign Policy Centre, London and an honorary fellow of the Centre for International Mental Health, University of Melbourne. Stephen was previously an adviser in the Office of the Premier of the Australian state of Victoria and has also worked as a journalist and as a staffer for members of the Australian Parliament. Stephen holds an MSc in International Relations from the LSE, where he studied on a Graduate Merit Award, and Honours degrees in Law and History from the University of Melbourne. He tweets @StephenMinasRead more reviews by Stephen

Note: This review gives the views of the author, and not the position of the LSE Review of Books blog, or of the London School of Economics.

书评:《中国的法律体系 》 Pitman B. Potter. Polity. 2013.

Review translated by Zoe Ng (Mandarin LN340, teacher Lijing Shi).

中国争取法治的道路面临一个紧要关头。作为中国统治的关键因素,其法律体系不仅影响中国内部事务,并影响其如何与世界交流。一个完善可信,能保护其公民和国际合作伙伴权益的,又不动摇中共权威的法律制度能形成吗?中国共产党是否愿意进行司法体制改革, 哪怕会危及其自身存亡?正如史提芬·棉那斯所说,《中国的法律体系》一书所探讨的是一个发人深省的问题: 法律法规到底能在一个讯息万变的社会中担当怎样的角色?


这本《中国法律体系》研究这些媒体头条后的结构和事件。作者波特先生是英属哥伦比亚大学法律系的教授。除了大量撰写中国法律各方面的文章外,波特先生同时也是一名执业律师,提供与中国公司法和仲裁事务有关的法律服务。这本书意在成为一本“研究和学习的指南”,其主要读者群为一些对中国已有基本认识的大学生,所以书中每个章节后都有相关阅读资料和讨论题的建议。(这本书为政治出版社(Polity Press)‘今日中国’系列中的一本,是优秀的《中国的环境问题》后的又一新作。)

波特对中华人民共和国的法律体系分析有两个特点。首先,他从中国的历史、 政治及经济背景出发,对其法律和法律制度的发展进行介绍和描述。这种写作手法特别切合改革时期的中国;中国在经历了冲突和革命的动荡岁月后追求经济发展。同时,具体法律问题往往与中国精英政治和政治经济学息息相关。其次,这本书旨在研究法律如何在现实中运行,并有一章节详细介绍中国法庭和法律界就业情况。 除了总结中国重要的法律条文和法规外,波特还进一步研究执行法律时遇到的问题, 譬如知识产权执法问题。

《中国的法律体系》以描述中国的‘社会主义法制的发展进程’开篇。首先是简洁实用介绍当代中国法律的文化根源。包括儒家的‘仁义思想’,封建朝代末期时的一系列法律改革,中华民国的法律(因为这取代了清朝三分之一的法律),以及共产党1949年前在解放区的法律实践。波特认为新中国成立后的一段时间其法律的发展进程持续被革命与制度建设两者之间的矛盾所影响,被对成文法价值的思想分歧所左右。中华人民共和国的第一部宪法于1954年颁布,其起草委员会由邓小平主持。毛泽东后来回忆道,“我参与了宪法的制定,但是连我也忘记 [宪法的细节]了。” 律师、法官和法律本身反复成为政治运动的斗争目标,从而酝酿形成灾难性的文化大革命。


Image Credit: A man holds up documents describing his legal case as he sits in an
underpass, in which he currently lives, in Beijing (Sunny x CC BY-NC-ND 2.0)

《中国的法律体系》的其余章节根据主题分类; 波特研究的是法律如何解决中共今天面临的三个挑战, 即政治稳定、 经济繁荣和社会发展。这本书的前提是‘法律主要作为今天共产党统治的工具’,虽然对这句话本身的争议性可能很低,但当投放在相关主题的框架下探讨时,这句话的含义令人深思。例如,波特认为,法律的“出现……,尤其(在中国)作为一个完全合法的统治机制”,‘开辟了不断增长的社群参与的新途径’。

最后一章的《参与国际事务》探讨了中国在国际制度中的参与及其境外业务关系。中共对国际法的态度已经产生了重大的变化,不再是文化大革命批判其为 “强加政策偏好的资产阶级(式)帝国主义”。波特认为,今天的中共参与国际制度不是为了‘反对它’,而是为了利用其‘国际系统以进一步推动国家利益’。促进国际贸易和海外投资的法律就是一个例子。从八十年代以合资企业为主 的模式 (中国常把这种形态形容为‘同床异梦’)到2001年加入世界贸易组织后所带来的改变,波特追溯了中国拓展三分之二的对外商务的路程。 截至2012 年,中国已经批准了超过90个双边投资协议,而中国官方金融力量亦在国家海外投资中发挥着重要作用。

波特警告说,在深化国际参与的过程中‘中国不应被视为被动的接受者’;这说法是有理可据的。正如波特所指出的,中国高级官员最近担任了世界银行、 亚洲开发银行和国际法院等国际机构中的关键职位。 但中国的处事手法和政策偏好到底会对国际法律规范构成何种短期或中期的影响还是一个悬而未决的问题。 从这个角度说,跨国经济法和国际气候变化制度这两个领域值得关注。


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This work by LSE Review of Books is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 UK: England & Wales.