Book Review: Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation

By Alyssa Thurston

Yun Zhao and Michael Ng (eds.), Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation (Cambridge University Press, 2017). 326 p. Hardcover $116.

China has implemented “a series of legal reforms of varying scales over the past century, borrowing models from a disparate range of countries”[1], a practice that has continued under the current Chinese president, Xi Jinping. Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation gathers Chinese law and legal history scholars from around the world (but predominantly from mainland China and Hong Kong) to evaluate Chinese legal reform “taking into account the country’s engagement with globalisation, increasingly complicated domestic situation and historical experiences of legal transplantation.”[2] Distinctively, the book incorporates research on legal reform from the mid-19th century onward for “a more nuanced view…of the drivers and factors underpinning the Chinese model of learning from, and at the same time shaping, the world’s legal order.”[3]

The book’s two sections delve into the present and the past. The first section’s chapters trace reform in different areas of Chinese law under Xi Jinping and generally since 1979, the year the country launched its “reform and opening up process”[4] that was the catalyst for “unprecedented economic growth”[5]. Sarah Biddulph examines attempts at criminal punishment reform policy questions that arose following the 2013 abolition of laojiao, or “re-education through labour”[6]. Xifen Lin and Casey Watters look at differing views, incorporation, and enforcement of presumption of innocence in international and Chinese criminal procedure law. Shucheng Wang assesses domestic judicial enforcement of human rights law in China, an “illiberal state”,[7] comparing it to enforcement in liberal democratic states. Chao Xi and Xuanming Pan review the impact of “foreign norms and local conditions”[8] on the development and enforcement of Chinese securities law and regulation, and Wenwei Guan compares China’s “‘market-authoritarian’” economic and free trade development model with the “‘market-democratic’” model of the West[9]. Liang Zhao analyzes the “disharmony”[10] of maritime judicial practice in China, arguing for resolution through adopting the common law doctrine of precedent. Björn Ahl focuses on the implementation of the Convention Against Torture in China via legislative and judicial reforms since 2010. Finally, Yun Zhao reviews China’s progress in developing legal protections for online privacy and suggests areas for further improvement.

Part II looks back to Chinese history and legal reform, with the first two chapters particularly engaging in their critical focus on the “self-Orientalising”[11] of Chinese law in the late 19th and early-to-mid 20th centuries. Li Chen highlights how China’s thousand-year-old legal system came to be perceived as “traditional” (and thus in contrast with Western or modern law) not only by external Western entities, but also internally by Chinese officials and legal reformers of the late Qing dynasty. Michael Ng studies a 2002 Hong Kong family law case and the court’s reliance on “century-old…flawed and…Orientalist”[12] judicial practice based on an imaginary distinction between “pre-transplant customary Chinese law” and “post-transplant modern Chinese law”[13].

Billy K.L. So and Sufumi So trace the adoption and evolution of commercial dispute resolution mechanisms in China through the practices of the early 20th-century Shanghai book industry. Maria Adele Carrai looks at how China‘s unilateral repeal in 1926 of the Sino-Belgian Treaty of 1865 demonstrated the dual adoption and rejection of Western notions of equality and sovereignty, which “contributed to renegotiations of”[14] international law concepts. Zhaoxin Jiang concludes by studying the role and leadership of the judiciary in Republican China (1912-1948) and how that history might inform Chinese judicial reform today.

While events in 2020 have thrown much about the world into disarray, China will likely continue to be a global leader[15] and interest in its legal system and ongoing legal reform is unlikely to wane. Chinese Legal Reform and the Global Legal Order is a valuable reference source on the development of Chinese law since the late Qing era, and (true to the book’s title) how the country has both adopted and adapted foreign legal models to shape a comprehensive and unique modern legal system.

 

 

[1] Yun Zhao & Michael Ng, The Law, China and the World: An Introduction, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation 1 (Yun Zhao & Michael Ng eds., 2017).

[2] Id.

[3] Id. at 1-2.

[4] Wenwei Guan, China’s Free Trade from SEZs to CEPA to FTZs: The Beijing Consensus in Global Convergence and Divergence, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 107.

[5] Id.

[6] Laojiao was a “much-maligned administrative detention power” previously used to punish so-called minor crimes, that had been “abolished without putting a clear alternative power or powers in its place.” Sarah Biddulph, Punishments in the Post Re-Education Through Labour World: Questions About Minor Crime in China, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 15.

[7] Shucheng Wang, Judicial Approach to Human Rights in Transitional China, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 64.

[8] Chao Xi & Xuanming Pan, Public Enforcement of Securities Laws: A Case of Convergence, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 81.

[9] Guan, supra note 4, at 106 (quoting Stefan Halper, The Beijing Consensus: How China’s Authoritarian Model Will Dominate the Twenty-First Century 134 (2010)).

[10] Liang Zhao, Achievements and Challenges of Chinese Maritime Judicial Practice, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 125.

[11] Li Chen, Traditionalising Chinese Law: Symbolic Epistemic Violence in the Discourse of Legal Reform and Modernity in Late Qing China, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 208.

[12] Michael Ng, Judicial Orientalism: Imaginaries of Chinese Legal Transplantation in Common Law, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 212.

[13] Id. at 213.

[14] Maria Adele Carrai, China’s Unilateral Abrogration of the Sino-Belgian Treaty: Case Study of an Instance of Deviant Transplantation, in Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation, supra note 1, at 257.

[15] Simon Tisdall, Power, Equality, Nationalism: How the Pandemic Will Reshape the World, Guardian (N.Y.) (Mar. 28, 2020), https://www.theguardian.com/world/2020/mar/28/power-equality-nationalism-how-the-pandemic-will-reshape-the-world.

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