Vol. 10 No. 7 (July 2000) pp. 454-456.

BIRD IN A CAGE: LEGAL REFORM IN CHINA AFTER MAO by Stanley B. Lubman. Stanford, CA: Stanford University Press, 1999.

447pp. Cloth $65.00.

Reviewed by Amy L. Freedman, Department of Government, Franklin and Marshall College.

Stanley Lubman, a practicing attorney and a scholar of Chinese law, has succeeded in writing a comprehensive volume on legal changes in China since 1978. It is both informative to those who have some knowledge of China and its legal institutions and accessible to those whose background might be more limited. Lubman's goal in BIRD IN A CAGE is to link changes in legal institutions and practices to economic reforms that began in 1978. In doing so the key focus of the book is on the procedures and organizations involved in dispute settlement. These institutions include informal ones such as neighborhood mediators, official mediation, and arbitration or adjudication in the court system. The book also tries to illustrate the continuity and transformation that has occurred in legal customs and practices from imperial times until today. Ultimately, Lubman finds that, although real changes have occurred, laws and legal institutions still serve policy goals of the Chinese Communist Party leaders and law is still a tool of the Party. Although China increasingly represents a system of "rule by law," one cannot yet say that they practice "rule of law." As Feinerman (1991, 1997) notes, economic reforms could not have taken hold without at least moderate legal reforms as well. However, just as tremendous economic change has happened without significant political opening, Chinese legal reform has occurred without corresponding curbs on party or state power or the protection of civil liberties. Lubman comes to the same conclusion.

The strongest part of the book is the section on mediation. Lubman explains how mediation worked under the imperial system, under Mao, and today as China experiences rapid economic and social transformation. For centuries mediation, as oppose to judicial proceedings, has been the dominant form of civil dispute resolution. Under Mao mediation served three primary functions: resolving disputes; mass mobilization and promoting Communist Party ideology; and suppressing disputes that might interfere with Party goals. These functions served to supplement other means of state and Party control.

In general the goal of mediation is to arrive at a compromise between two parties, not to assign blame. In this respect I was reminded of the film THE STORY OF QIU JU in which a women seeks an apology from a village leader who kicked her husband in the groin. This caused the husband significant pain and Qui Ju feared that he might be unable to father children in the future. Qiu Ju treks from the most local official's office all the way up to the provincial capital to present her case. At each level officials attempt to mediate the dispute. They ask the perpetrator to financially compensate Qiu Ju and her husband, and he grudgingly agrees to do so. However, he will not apologize for his

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behavior and this rather than the money is what Qiu Ju seeks. To apologize would be to admit fault and the village leader is unwilling to lose face in this way. This exemplifies the Chinese legal system's goal of collective harmony rather than individual justice.

Among changes that Lubman discusses, he finds that mediation no longer implies political indoctrination. He also finds that there are now attempts to apply legislation and administrative rules to governing, legal education has been revamped, greater numbers of students are encouraged to enter legal professions, and there have been modest changes in the criminal code and criminal court procedures. Yet, despite these legal modifications enacted by the central government, it is not always clear from local application of these laws that a significant shift has really occurred.

BIRD IN A CAGE does not adequately address whether failures to modify the legal system stem from a lack of political will or from an inability of the central government to enforce changes that they have made. As the old Chinese saying goes "heaven is high and the emperor is far away," and it is difficult to know if enforcement is spotty because the central government is unable to enforce national laws on all corners of China's vast territory or if it is a question of political will. For example, rhetoric about protecting intellectual property rights may sound good to the international community, but perhaps powerful business or political elites have an interest in looking the other way when cheating occurs. Lubman explains that one of the consequences of economic reform has been the decentralization of power and the rise of non-state actors in the economy. He notes (p. 140) that there are inconsistencies between national and local application of laws. Additionally, there is chaos in policy making because the responsibility is shared between the National People's Congress, the standing committee, the State Council, and by provincial and local governments' ability to add specificity and details to national legislation. There is no uniformity in application and Chinese bureaucratic agencies at all levels have the power to issue and interpret their own rules and require lower courts to enforce them. As Lubman writes, "As localities increase their control over their own economic resources their power to broaden their own jurisdiction becomes increasingly problematic for the central government" (p. 144).

Although Lubman does a good job explaining this problem, it would have been useful to illustrate it with a detailed example. A graphic example of exactly this quandary is the issue of enforcing intellectual property rights and international copyrights. The central government has promised the international community that they will crack down on piracy and copyright infringement; however, knock-offs of computer software, music, apparel, and videos are easy to find on city streets. This shows that there is either a lack of political commitment to uphold international promises or that the government is unable to crack down on the factories and small shops that produce phony products. Overall, in discussing the concrete changes in the legal framework it is clear that the goal underlying the new administrative codes is to protect and promote economic growth and political stability. New laws address domestic economic transactions, foreign trade and investment, and bureaucratic decision-making and implementation. Despite the new legal framework to oversee economic reforms, laws generally impose obligations rather than ensure rights.

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The strengths of this book are that it addresses a topic little covered by American academics and it does so in a way that puts legal reforms within the broader context of overall reforms in China. Lubman succeeds in explaining how China's imperial legal tradition and Mao's inclusion of the masses in politicizing the mediation and adjudication of disputes still effects China's legal code and the likelihood of its reform today. It would have been useful had Lubman included a more comprehensive discussion of the differences among Chinese legal institutions. The dominant forms of dispute resolution in China, according to Lubman, are mediation, arbitration and adjudication; however, these terms are never clearly differentiated. Also, the reader is not informed when and what types of cases are addressed in each forum.

Lubman attempts to tie his work to larger questions of Western (American) perception of China's legal system, and the differences between Western legal foundations and traditions and those of China. Although the question of the West's perception of China is certainly a valid point for examination, outside of Lubman's discussion in chapter two, the issue is not readdressed elsewhere in the book. Similarly, I found the comparison of Western legal philosophy and its evolution to China's changing legal system problematic. The implication of such a comparison is that the Chinese legal code should become increasingly rationalization and autonomous (i.e. Westernized) as distinctions between state and civil society in China become more pronounced. This sort of argument follows much of the literature on democratization and economic development that predicts that democratization will follow economic liberalization. However, such a progression may not necessarily take place. As states like Singapore illustrate, it is certainly possible to have a capitalist economy, free markets, a relatively free society, and not to have an independent judiciary and the protection of civil rights and civil liberties. It seems entirely possible that China's economy will continue to liberalize and there will be increasing protection of property rights without corresponding changes to the independence of the judiciary and the protection of individual rights. China's current leaders seem hopeful that this is exactly the path China will follow. Regardless of China's political and legal future, Stanley Lubman's work on legal reform is thoroughly researched and should be read by those with an interest in the institutional underpinnings of change in China today.

REFERENCES:

Feinerman, James V. 1997. "The rule of law . with Chinese socialist

characteristics." CURRENT HISTORY 96 (611): 278-281.

Feinerman, James V. 1991. "Economic and Legal Reform in China, 1978-91."

PROBLEMS OF COMMUNISM 40:62-75