ENGAGING THE LAW IN CHINA

Vol. 16 No. 9 (September, 2006) pp.757-760

ENGAGING THE LAW IN CHINA: STATE, SOCIETY, AND POSSIBILITIES FOR JUSTICE, by Neil J. Diamant, Stanley B. Lubman, and Kevin J. O’Brien (eds). Stanford: Stanford University Press, 2005. 256pp. Cloth. $49.50. ISBN: 0804750483.

Reviewed by Michael W. Dowdle, Clarke Program in Asian Law and Culture, Cornell Law School. Email: mwd26 [at] cornell.edu.

Particularly for those who tend to conceptualize China and Chinese law and politics primarily through more traditional, state-centric lenses, ENGAGING THE LAW IN CHINA is likely to be a very eye-opening read. For those who already see China as a complex mélange of social and political forces that cannot be accurately described by reference to a limited collection of rational, anthropomorphic intentionalities (such as those “of the party” or “of the leadership”), ENGAGING THE LAW IN CHINA will lend helpful support for their views.

Unfortunately, at the same time, the book also represents a missed opportunity of sorts. Over the past 15 years at least, many scholars have engaged in important interdisciplinary studies of law-in-action in China. In this sense, the larger theme of the book – that of promoting a supposedly new law-in-action scholarship for Chinese law – seems to be reinventing the wheel somewhat. One wishes that the book and its chapters would have done more to engage more with already existing literature in this area.

ENGAGING THE LAW IN CHINA explores what sometimes is called “law-in-action” in China. ‘Law in action’ challenges the dominant analytic methodology through which Chinese law and politics have traditionally been explored – that of neo-realism. Neo-realism attributes legal and political behavior in China to the rational, egocentric intentionalities of discrete political entities. The law-in-action literature derives essentially from two overlooked aspects of the human regulatory experience. The first aspect is that the actual impact of a particular legal regime on social behavior often differs significantly from that suggested by the law as it appears ‘on the books’ – i.e., as simply written down. Relatedly, the actual impact that a particular legal regime has on social behavior often does not correspond to any identifiable ‘intentionality’ of a particular set of political or institutional entities. Taken collectively, these two aspects recognize that the formal ‘law’ must negotiate an often highly complex field of institutions and relationships before it influences actual behavior, and that the cumulative dynamics of this field often cannot be captured via simplistic metaphors of political ‘power’ and intentionality.

ENGAGING THE LAW IN CHINA presents a number of empirical studies that explore this ‘law-in-action’ as it manifests itself in a diversity of regulatory environments. In Chapter 2, entitled “Suing the State: Administrative Litigation in Rural China,” Kevin O’Brien and Lianjiang Li explore the [*758] cat-and-mouse games by which local civil society and local political officials both use and manipulate the administrative litigation law and its corresponding legal system in rural China. They argue that understanding these games helps explain why the administrative litigation law has been both more and less effective than has been commonly suggested. It is less effective because political officials are surprisingly successful in devising strategies that impede the juridical impact of such litigation capacity – strategies that prevent such cases from reaching the courts, for example, or for capturing or otherwise intimidating the courts themselves, and for avoiding judicial enforcement of adverse judgments. At the same time, it has been more effective in the sense that petitioners are able to integrate administrative litigation into a larger package of ‘rightful resistance’ techniques that allow administrative litigation to reach far beyond the narrow confines of the courtroom.

The next two chapters can be seen as replicating O’Brien’s and Li’s demonstration of how the law in action in China is both shallower and broader than it is treated by more traditional analysis in the context of industrial dispute regulation. In Chapter 3, “Use Law as Your Weapon: Institutional Change and Legal Mobilization in China,” Mary Gallagher shows how the on-going juridification of labor dispute management prioritizes certain kinds of claims and problems, namely those that find ready expression in legal language, at the expense of others, namely those that are more easily expressed in moral language. This, in turn, has significantly skewed the law’s ability to address comprehensively China’s labor problems through judicial dispute resolution.

But in Chapter 4, Isabelle Thireau and Hua Linshan remind us that the courts are not the only vehicles through which the labor legal system expresses its authority. Thireau and Hua show how different populations tend to use different arenas within that labor system, depending on the problems they most often confront. They show how indigenous contract-based laborers, because their labor problems are most easily expressed in juridical terms, tend to gravitate towards more formal, legal forums, like courts and arbitration tribunals. By contrast, migrant labor, whose problems lend themselves to moral kinds of claims, are more likely to use letters and visitors offices, precisely because these offices better accommodate moral-based argument. Drawing from O’Brien’s and Li’s notion of ‘rightful resistance,’ they suggest that these two forums need to be seen as operating in tandem. And, when viewed in tandem, we see that labor law is indeed broadening the complaint spaces available to disaffected workers.

In Chapter 5, Mark Frazier looks at the related issue of pension reforms. He shows how the experience of pension reforms simply does not correspond to images of the Chinese “state” as a rationalized entity or as product of a simple set of rationalized principles of behavior (such as suggested by principal-agent analyses). Rather, he shows not only that the “state” – to the extent that term has any real analytic [*759] utility – is highly chaotic, but that the chaos may in fact be an affirmative structural element, at least for the present. For example, new rules and regulations do not serve so much to unify and centralize power and authority as they serve as framing devices for future negotiations. He further suggests that, given the current state of China’s economic and industrial environments, it probably could not be any other way.

Chapter 6, by Neil Diamant, looks to the past, exploring how the political system treated demobilized military veterans during the 1950s. Despite the fact that the State itself often asserted that military veterans enjoyed special political status and respect due to their willingness to serve the state, in practice they were generally marginalized and discriminated against, even by state officials, when they sought to reintegrate into civilian society.

Chapter 7, by Andrew Mertha, to some extent amplifies Mark Frazier’s complaint about traditional visions of the state, by exploring how, at least in the context of intellectual property rights enforcement, foreign commercial actors are increasingly involved in shaping state behavior. He wonders what this might imply for traditional notions that see both “state” and “civil society” in terms of innately autonomous and innately indigenous phenomena.

The last two chapters, Murray Scot Tanner’s “Rethinking Law Enforcement and Society” (Chapter 8) and Fu Hualing’s “Punishing for Profit” (Chapter 9) present the book’s most direct and compelling refutations of the traditional, state-centric visions of law and regulation. Tanner’s chapter assesses changes in how higher-level police officials – as expressed in internal publications – have come to view the phenomenon of social disorder in increasingly empathetic terms – i.e., as expressions of often legitimate grievances rather than as simple efforts to challenge the state’s political authority. He shows how this counterintuitive evolution simply cannot be explained through traditional command-and-control (i.e., ‘top-down’), or threat-and-compromise (i.e., ‘bottom-up’) models of state dynamics. Rather, he shows, it exposes the complexity of the institutional factors that comprise the political environment in which the police often find themselves. Fu Hualing’s chapter explores, again contrary to received understandings, how introducing profit-making incentives into prison labor facilities encourages prison administrators to improve their treatment of prisons so as to increase productivity – albeit at the possible expense of rehabilitation.

Individually, the chapters in this book present fascinating studies of how particular aspects of China’s regulatory environment works – or in the case of Diamant’s chapter, has worked – ‘in action.’ But the book may be less successful in its larger aims.

The editors indicate that their intention is to “begin spanning the gap between fields that have a lot to offer each other but have yet to really speak to one another” (p.5). These disciplines are supposed to include comparative legal history, political science, legal [*760] anthropology, and the sociology of law (p.4). But in fact, with the exception of Thireau’s and Hua’s essay, the substantive chapters in this book do not attempt to engage systemically with these other disciplines. Methodologically, the studies in this collection resemble many of those frequently found in the pages of CHINA JOURNAL or CHINA QUARTERLY – robust empirical studies whose actual theoretical engagement with outside literature is not particularly systemic.

The individual chapters also make little effort to engage relevant, existing literature in Chinese studies. For the last fifteen years, a significant number of scholars (including several who contributed to this book itself) working on Chinese law and regulation have indeed been trying to “span the gap” between Chinese legal studies and other relevant disciplines. Much of this earlier research would seem directly relevant – the work of Ching-Kwan Lee in the area of labor, for example, seems very relevant to Gallagher’s observations; Tianjian Shi’s earlier work with regards to internalization of political norms would seem a useful referent for Tanner’s study; and Linda Li’s work on professionalization and value formation in local government would have important implications for Frazier’s chapter. For the most part, however, the studies in this collection do not engage with prior literature.

And in this aspect, the volume replicates the large problems with contemporary American efforts to understand law-in-action in China. Like the studies in this book, American engagement with law, regulation and society in China still focuses primarily on the collection and narration of raw data. Little effort is made to contextualize observations against a larger field of other such studies. One wonders whether the principal obstacle to our greater understanding of China might, at the present time, lies not so much in inadequate primary information, but rather in an inadequate synthesizing of the information we have already collected.

Ultimately, interdisciplinary and comparative research and investigation are more about theory-building than about field work. And, although the editors are right to complain about contemporary scholarship failing to pursue such a wider picture, the studies in this collection also show just how hard it may be to do this in an intellectual environment which so privileges fieldwork and raw data collection over other forms of knowledge generation.

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