陈弘毅：社会法思想与现代中国的法律现代化（英文论文）
陈弘毅本文原标题为：Socio-legal Thought and Legal Modernization in Contemporary China: A Case Study of the Jurisprudence of Zhu Suli。中文标题为编者所译。
1.Introduction
Rapid, large-scale and far-reaching economic and social changes have occurred in China since the Chinese Communist Party decided in 1978 that China should embark upon the path of ‘reform and opening to the outside world.’ The changes include, among others, the transition from the socialist planned economy to a market economy, the gradual emergence of civil society, the reconstruction of the legal system (which had been totally devastated in the ‘Cultural Revolution’ era of 1966-76), and the official affirmation of the goal of establishing a socialist Rechtsstaat. These developments have provided a fertile soil for socio-legal thought in contemporary China.Legal sociology was an under-developed field of study in China before the 1980s. From the 1980s up to the present, much progress has been made in the development of a Chinese legal sociology. Western works on legal sociology have been translated into Chinese and introduced to the Chinese academic world.1 Books and articles on both the theoretical and empirical dimensions of legal sociology have been published.2 There are vibrant debates on key issues relevant to the future development of Chinese law. Examples of these issues include (1) the pathway of legal modernization in China,3 (2) the relationship between traditional Chinese legal culture and the quest for legal modernization,4 (3) faith in law,5 (4) civil society and legal development,6 (5) judicial reform,7 and (6) the contextual approach to legal research.8 This chapter, however, does not attempt to survey the whole field of socio-legal thought in contemporary China, for such an ambitious project would probably require a full-length book. Instead, this chapter provides a ‘case study’ of the socio-legal thought of one scholar. The scholar is Professor Zhu Suli, currently Dean of the School of Law at Peking University, one of the best-known legal theorists in China and probably the most original and controversial among them all. It is hoped that by studying his work, which to date consists of over 60 articles (most of which have been collected and re-printed in four books9), one can have a glimpse of the exciting ‘legal revolution’ that is taking place in China today and the interesting theoretical issues raised by it. This chapter will consist of the following parts. Part 2 provides some biographical information on Professor Zhu Suli (hereafter called ‘Zhu’), and introduces his general orientation to jurisprudence. Part 3 discusses Zhu’s thought on law and China’s modernization. Part 4 deals with his work on the relationship between formal law and informal law in China. Part 5 describes his scholarship on the judicial system in China. Finally, part 6 provides an overall evaluation of Zhu’s work, including both its contribution and its limitations. It also highlights the paradox revealed by this case study: Zhu as a committed member of the Chinese Communist Party10 and an adherent to historical materialism on the one hand, and as a believer in the market and Hayek’s ‘spontaneous order’, in Foucault’s understanding of power/knowledge, and in Posner’s pragmatic and economic approach to jurisprudence on the other hand.11
2. Zhu’s jurisprudence: Foundation and general orientation
Zhu was born in Hefei of Anhui in eastern China in 1955. He grew up in the eras of the ‘Anti-Rightist Campaign’ (1957), the ‘Great Leap Forward’ and the ‘People’s Communes Movement’ (in the late 1950s) and the ‘Great Proletarian Cultural Revolution’ (now officially periodized as 1966-1976). Before he gained entrance as an undergraduate to the Department of Law at Peking University in 1978, he had been in the army and had worked in a factory. He graduated from Peking University in 1982. In 1984 he began his postgraduate legal study at Peking University. In 1985 he won a scholarship which enabled him to study in the USA, where he subsequently obtained the degrees of LLM (commercial law and tax law), MA (American legal system) and PhD (interdisciplinary legal study). In September 1992 he returned from the USA and began his academic career in the School of Law at Peking University. In 2001 he took up his present position as Dean of the School. Zhu’s approach to jurisprudence is unconventional by contemporary Chinese standards. How he positions himself on the contemporary Chinese jurisprudential scene can best be seen from his categorization of the types of legal scholarship in contemporary China. He distinguishes between three types of Chinese legal scholarship that emerged after the rehabilitation of the legal system and of law as an academic discipline in 1978.12 The first is what he calls ‘political-legal discourse’, which was the first type of legal scholarship that arose after 1978. Examples of this kind of scholarship are discussions of the nature of law,
the legal system, the Rule of Law and legal transplant. While he recognizes that this kind of legal scholarship played a positive role in asserting the autonomy of law as a discipline, he seems to suggest that it is of limited intellectual value, and he predicts that it will decline in the course of social development. The second type of legal scholarship is a technical and specialized professional discourse based on the analysis and interpretation of legal concepts and rules. Zhu recognizes that there is a strong demand for this kind of scholarship on the part of the legal and judicial professions (or what he in his economistic language calls consumers in the market for such products of legal researchers). The third kind of legal scholarship explores the social life, reality and history that lies behind the law, and employs the concepts and methodology of the social sciences. Zhu believes that the kind of work he is doing is of this kind. In another essay, Zhu labels his methodology of legal scholarship as the ‘contextual’ approach.13 The scholar who adopts this approach attempts to understand a particular legal institution or rule in its historical and social context. His working assumption is that if the legal institution or rule has had a stable existence in the society concerned for a long time, then it must have been performing some useful functions in responding to some real needs of people or providing effective solutions to some real problems in society. In this sense, it should be considered legitimate and reasonable: the scholar should try with empathy to understand it in its social context instead of simply evaluating and then condemning it on the basis of certain moral values that are regarded as absolute and eternal.Zhu demonstrates how the ‘contextual approach’ works by applying it to analyze what he believes to be the basic legal features of the traditional Chinese family, including marriage at an early age, arranged marriage, prohibition of marriage between persons with the same surname, and the rules governing divorce. He attempts to explain them in terms of the prevailing social and material conditions of life in traditional China. For example, since life expectancy was low (he referred to studies which estimated the average age of death at 35 years old), early marriage was necessary to ensure reproduction. Early marriage in turn necessitated arranged marriage. The prohibition on marriage between persons with the same surname was designed to avoid birth defects. Zhu distinguishes between this ‘contextual’ approach and two other approaches identified by him. One is the approach of emphasizing ‘values’; the other is that of emphasizing ‘culture.’ The ‘values’ approach would, for example, condemn the institution of the traditional Chinese family as patriarchal and oppressive; the ‘culture’ approach would understand it as expressive of uniquely Chinese culture. Zhu criticizes the former for simplistically dismissing history as a mistake, and the latter for ignoring the material and social conditions in which people actually lived. Both approaches, as he sees them, have limited explanatory power. Zhu is however at pains to point out that the contextual approach does not mean the rejection of legal reform, but it does mean that more attention should be paid to the social transformations underlying legal change. He comments that ‘slavery as an institution collapsed not because people came to understand what is justice and human rights, but because of [the change in] the efficiency of slavery.’14 Changes in the social, technological, economic, environmental and other material conditions of life may mean that some of the existing legal institutions and rules (which are based on past social and material conditions) are no longer appropriate. New legal institutions and rules may therefore be necessary, and the ultimate test for their legitimacy should be based on a cost-benefit analysis. However, it should be stressed at this point that Zhu does not believe that it lies within the responsibility or capacity of legal scholars or jurists to construct new legal institutions and rules for society. In the preface to one of his books, Zhu writes:
‘I have always doubted whether jurists have the capacity to undertake the task of the construction of the Rule of Law. I still insist on my view that the Rule of Law is a nation’s enterprise, and the task for jurists is largely no more than the legitimation and understanding of this enterprise. Therefore, it is not superfluous but constantly necessary for jurists, on the basis of social praxis --- particularly social change in China, to reflect on the characteristics of jurisprudence, on the formation of modern Chinese jurisprudence and on legal scholarship and its methodology.’15
What, then, is jurisprudence as Zhu sees it? His view of jurisprudence is based on his view of knowledge and of law. Knowledge, to him, is always local rather than abstract and universal in nature.
It is directed towards problem-solving in concrete and specific situations. Similarly, law is a problem-solving enterprise directed towards social problems and social needs. As Zhu doubts the existence of knowledge as universal truth, he also rejects the proposition that the concept and practice of the Rule of Law as it exists in the Western world today has universal validity or ought to be taken as the norm by the Chinese people. As Zhu said to an interviewer:
‘There is no absolute knowledge, and the same applies to jurisprudence. Law is for solving practical problems. As different societies have different practical problems, so they need different knowledge. If we assume that all societies develop in the same way according to some principles of evolution, then all legal systems in the same stage of development are the same, and the relevant legal knowledge is the same. But this is impossible. Individuals and peoples form different traditions in their own society. So much of the existing knowledge, including foreigners’ knowledge or knowledge of people in the past, may not be applicable to China today. … What we need to solve is China’s problems. So you must study in detail China’s problems, and in researching these problems you will obtain a unique knowledge.’16
Thus Zhu is against three kinds of discourse in mainstream Chinese jurisprudence. One advocates ‘ruling the country according to law’ and engages in philosophical and theoretical expositions of the Rule of Law on the basis of Western Enlightenment and liberal thinking. Zhu calls upon his colleagues to turn their attention away from ‘words and concepts’ to real ‘problems and things’17 instead. A second kind of discourse promotes the use of law as a means for social change, and presupposes that jurists can play an important role in this regard. Here Zhu cautions that the law is not so powerful, and whether the law is effective depends on the ‘public choice’ of the people: ‘In this regard, the law, like language in society, is a public instrument. It is not the creation of one or a few geniuses, but is shaped collectively by and manifested in the actions of the people.’18 He stresses that ‘the people will make their own choices; … they themselves know what they need,’19 and it is not for jurists to impose a legal system on the people. The third kind of discourse which Zhu rejects is that urging that Chinese law and the Chinese legal system should ‘connect to the international railroad’ (i.e. converge with the international norms). He points out that the real questions are why and what should China learn from the West, and he also qualifies his position by saying that he is not against ‘referring to and borrowing from’ (jiejian) the Western experience:
‘In introducing Western scholarship, we should not regard it as Truth or as a remedy for the backwardness of traditional Chinese law or legal thought. … When I look back on the social development in China in the last ten or twenty years, I often feel strongly that the power of theory is not as big as what we imagine it to be when we inflate our self-image. The development of civil rights in Chinese society is largely a result of social and economic development rather than of the influence of theory or so-called enlightenment.’20
3.Law and China’s modernization
The mainstream paradigm of contemporary Chinese jurisprudential thinking is that of ‘legal modernization.’The premise is that China is not only economically backward (relative to the West) but also legally backward, and she therefore needs to ‘catch up’ in terms of both economic development (primarily by the ‘reform and open-door policy’ (gaige kaifang) and establishing a ‘socialist market economy’) and the construction of the Rule of Law. The latter is to be achieved largely by legal reform and legal transplant --- transplanting to China from the West advanced legal ideas, institutions and practices, particularly those that are conducive to the development of a market economy.Zhu, however, dissents from this mainstream paradigm of legal modernization. He is probably the leading critic of the concept of ‘legal reform’ (bianfa, which also be translated as ‘institutional reform’ or ‘using the law to promote social change’), of the thesis that ‘the market economy is a legal-system-based or Rule-of-Law-based economy,’ and of the idea of legal transplant. He advocates the contrary view that China’s ‘indigenous resources’ (bentu ziyuan) can supply the foundation for the development of the Rule of Law in China. In order to understand this thesis, we need first to consider Zhu’s conception of the Rule of Law and of the nature of the social change that characterizes modernity.Zhu’s understanding of the Rule of Law draws on the thought of Fuller, Hayek and Weber. Zhu agrees with Fuller21 that the Rule of Law is the enterprise of subjecting human conduct to the governance of rules,22 thus providing order and predictability in social life and human interactions.
Thus he defines the Rule of Law as ‘the rule of rules’ (or ‘governance by rules’).23 However, the rules in this regard are not limited to rules enacted by the State, or legislation. They also include, more importantly, the rules and norms that emerge in social life and the expectations and predictability generated by them.24 These rules and norms are unwritten and customary in nature (but Zhu does not use the term ‘customary law’ to refer to them), and are based on long-standing practices, habits and mores. They supply the basis for a spontaneous order (in Hayek’s words) of social interaction and cooperation. Insofar as this order has stability over time and predictability in its operation, it is an order under the Rule of Law. Zhu adopts Hayek’s distinction between ‘law’ and ‘legislation.’25 State-enacted legal rules can be of two kinds. One kind of State-enacted rules merely codify the rules that emerge spontaneously in social life.26 The other kind of rules (legislation) are consciously created or ‘rationally designed’ by the State for the purpose of social engineering. Like Hayek, Zhu is skeptical about such legislation. He emphasizes the limits of human reason or rationality in managing social change. He points out that the social order and its institutions, including its legal institutions and law, is the result of human actions (the sum total of the actions of countless people all rationally pursuing their own interests subject to the constraints arising from social institutions and rules) but not of human design.27 On the basis of his understanding of the Rule of Law, Zhu argues that the Rule of Law is not a unique product of modernity, but many traditional societies can also be said to be under the Rule of Law. Referring to Weber’s classification of the types of authority and of legitimacy --- that based on tradition, that based on charisma and that based on formal and rational law, Zhu suggests that both traditional authority and legal authority can be regarded as based on the Rule of Law, whereas charismatic authority corresponds to the Rule of Man.28 He points out that although the Rule of Law and the Rule of Man represent different modes of governance, they both aim to promote the people’s well-being in terms of social stability and economic prosperity. Both respond to the needs of a particular society at a particular point in time. Zhu does not agree with the mainstream view in contemporary Chinese jurisprudence of simply dismissing the Rule of Man as inferior to the Rule of Law. Insofar as the Rule of Man has also existed in history in some societies for significant periods, it also has its reasonableness within the relevant social contexts (for example, he points out that under conditions of rapid social change, the Rule of Man might be the most appropriate mode of governance).29 As far as China is concerned, Zhu is of the view that the Rule of Law did exist in some periods of Chinese history, although in imperial China, whether the Rule of Law or the Rule of Man was adopted depended ultimately on the ruler’s will. We now turn to Zhu’s view of the social change that ushered in modernity.30 Here he seems to employ T?nnies’ paradigm of the transformation of a Gemeinschaft into a Gesellschaft,31 and he also relies heavily on the Chinese sociologist Fei Xiaotong’s works on rural China.32 Traditional or pre-modern society is a society of a small size (such as a village in rural China) in which people are well-known to each other, and interactions and transactions among the same group of people are frequent and form a continuous course of dealings. This contrasts with modern urban industrial-commercial society, a society consisting of strangers to one another, in which many transactions are one-off. Whereas in traditional society, people can engage in social cooperation on the basis of unwritten rules and customary practices (which provide predictability and stability and thus supply the basis of the Rule of Law in a traditional society), the modern society of strangers finds it necessary to develop a modern form of the Rule of Law predicated on universalistic rules uniformly enforced within a large space by a centralized and bureaucratic state. Moreover, as the modern state is much more powerful and intrusive than the traditional state (which as in the case of imperial China did not really penetrate into local rural society), the modern Rule of Law attempts to control the exercise of state power by providing rules that are applicable to state institutions and officials. Zhu writes:
‘I believe that the emergence and development of modern Rule of Law and its substitution for the ‘Rule of Man’ in traditional society or its order is not the unfolding of a true moral philosophy or the realization of the moral ideal or rationality of humanity as described by traditional political and legal philosophers. It is instead an integral component of the social-structural transformation brought about by modernization as a historical movement that shaped the whole world in the last three or four centuries.
It is true that modern Rule of Law is a requirement of modern society. But the meaning of this proposition is perhaps not as customarily understood or expressed by many people, who hold that modern Rule of Law is mainly used by the moderns to solve the problems of traditional rural society and the problems of so-called authoritarianism or the unlimited exercise of power: this would be a unidirectional evolutionary view of law. On the contrary, the problem confronted is and merely is the guarantee and maintenance of the social order brought about by the modernity that has made possible the modern Rule of Law.’33
Turning to China’s efforts in its twentieth century history to ‘catch up’ with the West by embarking upon legal reforms and attempting to develop a Western-style Rule of Law, Zhu argues that the rapid social and legal changes in twentieth-century China in fact militated against the development of the Rule of Law. He points out that the Rule of Law, by its very nature, is a conservative force. It confers stability and predictability on social relationships; it tends towards the preservation of the status quo. However, China’s quest for modernization means that rapid and large-scale social and economic transformations have to be initiated by the State, using the law (State-centered law or legislation) as one of its principal means for achieving this objective --- hence the frequent reference to ‘bianfa’ (which, as pointed out above, can be translated alternatively as ‘legal reform’, ‘institutional reform’ or ‘using the law to promote social change’). The law is also used to construct in China the modern nation-state itself.34 This results in a situation in which the traditional order has broken down but no new legal order has been effectively put in its place.35Zhu does not believe that the Rule of Law in China can be realized by the State’s legislative efforts. Insofar as the Rule of Law is a rule-based social order in which rules are actually relied on by people in order to have predictability and stability in social life, it depends on the people’s customs, practices and morals.36 ‘Without a spontaneous order endogenous to social life, without the support of compatible informal institutions, the State’s formal institutions will lack a strong foundation,’ and ‘it will be difficult to develop a reasonable and legitimate order that wins general and long-term acceptance.’37 Zhu cautions against superstition about the omnipotence of state power and of legislation, or the slogan that ‘the market economy is a legal-system-based (or Rule-of-Law-based) economy,’ for much legislation may be ineffective in practice. He points out that the problem in the Chinese legal system is that the law enforcement organs and judicial organs complain that the legislators are out of touch with reality, and at the same time legislators complain that legal scholars are out of touch with reality.38 He also warns that if the law loses touch with the life of ordinary people, it may become no more than an instrument for the legal elite to promote their own interests.39What, then, is to be done to promote the Rule of Law in China? Here Zhu warns against the uncritical ‘transplant’ of Western legal norms and institutions to China by means of legislation, and advocates the utilization of ‘indigenous resources.’ ‘Indigenous resources’ mean primarily not Confucian or other classical texts but the ‘living law’ among the people today --- their customs, practices and the informal institutions that have developed spontaneously in social life.40 Zhu refers to the post-1978 developments of the household contract responsibility system of farming and of village and township enterprises as examples of how practices originating among the people themselves (rather than being initiated by the State) can play a creative role in forming and shaping new institutions.41 Therefore, Zhu calls upon scholars to pay more attention to the existing and developing practices and norms in Chinese society and ‘should not simplistically, on the basis of Western scholars’ formulations and criteria of the Rule of Law, deny that the customs and conventions that regulate social life in Chinese society are law.’42Zhu also stresses that the development of the Rule of Law in China is necessarily a gradual process that takes a lot of time:
‘The formation and recognition of any institution, rule, custom and convention in social life takes time. … Time is important in the formation of human concepts and modes of behaviour, and in the establishment of a social institution and its legitimacy. Time transcends the capacity of any individual or group of individuals; it is the work of ‘God’. … Time marks the accumulation of resources, the inheritance or transformation of tradition, and the establishment of legitimacy.’43
However, Zhu is optimistic about the long-term prospects for a modern-style Rule of Law in China. This is because in his assessment, after all the turmoil and trials of the twentieth century,
China has largely completed its task of social transformation.44 The basis of China’s economy has been transformed from agriculture to industry and commerce. A modern nation-state has been constructed; the social structure and culture have also been transformed. Zhu therefore believes that ‘the great transformations in Chinese society in the twentieth century have laid a firm foundation for the ultimate establishment of modern Rule of Law in Chinese society.’45 He thinks that the social conditions for developing the Rule of Law in China are more favourable now than in any other time in modern Chinese history. ‘In this sense, we are blessed.’46
4. Formal law and informal law
While Zhu recognizes that as a result of urbanization and the marketization of the economy, China is becoming a society of strangers or a Gesellschaft, and modern Rule of Law is indeed appropriate for such a society, he is concerned about the negative consequences of the imposition of Western legal norms on rural China where the Gemeinschaft still prevails. The traditional rural community and the urbanized community may have different legal needs:
‘We should not simplistically and easily sacrifice the order presently needed by Chinese rural society on the pretext of modernization. How to coordinate between the different needs in terms of law and the Rule of Law of the modernized cities on the one hand and the traditional rural communities on the other hand is a question which ought to be taken seriously by Chinese jurists and legislators. This is not only a technical issue but also a moral issue.’47
In a series of articles on the legal situation in rural China, Zhu argues against the view that Western notions of legal rights and legal relationships embodied in contemporary Chinese legislation are universal and objective. He suggests that they may not be appropriate for rural China, and may also conflict with its informal law and culture. He also points out that in such situations, it may be reasonable for people to behave in such a way as to ‘avoid’ the operation of imported legal norms. The first article48 in the series reflects on the issues raised by two movies, Qiuju Goes to Court and The Defendant Shangangye. Both movies depict the contemporary operation of the law in a small village community.
Qiuju was the wife of a man who was kicked in the lower part of his body by the village head. Qiuju went to various authorities and various levels of the court system trying to obtain a ‘shuofa’ (which may be translated as ‘words of justice’). She probably only wanted some form of official criticism or apology acknowledging that a wrong had been done to her husband, but in the end, the village head was arrested and punished by administrative detention. This was an outcome which Qiuju did not expect and could not understand, particularly as the village head was otherwise a conscientious official who saved Qiuju’s life on a separate occasion.
In the second movie, Shangangye was a Party secretary in a village. He is of good character and well respected by the people. A young woman villager seriously maltreated her mother-in-law and continued the maltreatment despite warnings. Shangangye had the woman arrested and paraded her in the village – a severe mode of punishment under local custom but not authorized by State law. As a result, the woman committed suicide. Shangangye was arrested by the police for false imprisonment and violation of the citizen’s right to freedom of the person.
Zhu disagrees with one common interpretation of the two movies, which is that they demonstrate that China is moving towards the Rule of Law. Instead he suggests that the two stories illustrate the tragic result of the conflict between the Westernized legal norms and institutions of the State and the local customs, expectations and ‘local knowledge’49 in rural China. The local customs and legal culture are simply disregarded by the imported law, which operates in such a way as to destroy the existing community bonds and relationships of solidarity in the local community. The imported system and the legal instruments under its disposal are not able to satisfy the needs and aspirations of the local people, and yet it refuses to give recognition to or be tolerant of the customary norms in which such needs and aspirations are expressed. ‘From Qiuju’s perplexity, we can say that the operational logic of the formal law in contemporary China is in some ways divorced from the social reality.’50Since the imported law may not operate in a reasonable manner in the circumstances of rural China, it may be reasonable for people to devise ways of avoiding the operation of the imported law. In another article,51 Zhu describes the following case as an example of the ‘avoidance’ of the law and hence of ‘legal pluralism’. M was in love with W, who was from another village. When they were having a date, M wanted to have sexual intercourse with W,
and when W refused, M raped her. W subsequently told her parents about this, and they reported the matter to the police. Before the police took action against M, M’s parents visited W’s home, and W’s parents agreed to enter into a settlement with M’s parents: M would marry W, and his family would pay to W’s family 5000 yuan; W’s family would withdraw the case against M. And although neither M and W had reached the minimum age for marriage, they were able with a friend’s help to obtain a marriage certificate. But this private settlement to avoid the law was discovered by the Government. The marriage was declared null and void, and M was prosecuted for and convicted of rape. Zhu disagrees with the mainstream view on this case, which is that it shows that people are ignorant about the law and there should be more legal education for members of the public. Instead, Zhu argues that this is a case in which the parties concerned were aware of what the law was, and yet deliberately and rationally chose to bypass the law, the formal operation of which would make all the parties concerned worse off than under the private settlement. The law was effective in the sense that it constituted the background and provided the starting point for the parties’ negotiation and bargaining. The parties rationally pursued their interests within the constraints of the formal and informal law, and the arrangement ultimately entered into by the parties was, in Zhu’s view, reasonable in the circumstances: In the small rural community in which the parties lived, it was in their interest to compromise and cooperate; the local culture is such that it is difficult for a rape victim to get married; the two families were friends and wanted to maintain their social relationship; W’s family needed the money. Zhu thus suggests that two kinds of law are in fact in existence in rural China: State law and minjian fa (which may be translated as ‘popular law’ or ‘people’s law’), the latter being constituted by the people’s customs, their traditional practices, behaviour and culture. This is a kind of ‘legal pluralism’, albeit not the same as the legal pluralism of colonial law and indigenous law for which the term was originally coined. Zhu suggests that the popular law may be understood as a kind of resistance to the State legal system that is modeled on Western law. He writes:
‘Some people simplistically regard legal modernization as a change in legislation and the legal system; they assume that once these are changed, the old law will disappear. Some people in their criticism of traditional Chinese culture consciously or unconsciously adopt an attitude of legal nihilism towards Chinese legal culture. They adopt the model and standards of the State law of modern Western states and deny that there was law in traditional China. On this basis, they think that a modern legal system can be constructed in China simply by strengthening legislation, strictly enforcing the enacted law and educating the public about such law. Thus they fail to see the power of the norms that in fact operate within Chinese society, and the difficult and long-term nature of building a modern unified legal system on the basis of such norms.’52
In the sequel53 to the article mentioned above, Zhu goes one step further to argue that people’s avoidance of the law may in fact be a source of institutional innovation of positive significance. He points out that in the course of the economic reform in China in the last two decades, many new practices emerged that were originally a form of avoidance of the existing law or policy, but they subsequently became acceptable and were institutionalized by formal legal rules. It would therefore be healthy and useful to have a system in which there is communication, compromise and cooperation as between State law and popular law. The latter ought not be regarded as backward or something to be abolished.54 On the contrary, jurists should from the hermeneutic perspective try to engage in empathetic understanding of popular law and contribute to the breaking down of the barrier between State law and popular law. He points to the development of a ‘mixed system’ of law. One possible version of this system would assume that the State law normally prevails but provide room for private settlement or ‘avoidance’ on the basis of popular law. Another possible version would give priority to popular law, restricting the role of State law to domains where State intervention is essential.55In another article56 Zhu discusses a case in rural China for the purpose of demonstrating how popular custom is in practice given recognition by Chinese courts even where it is not entirely consistent with State law. In this case, T committed adultery with M’s wife W. M made threats to T and his family. T initiated legal proceedings against M, and M counter-claimed against T. The court detained T (partly to protect him against M), and finally a settlement was arrived at by court mediation.
The settlement provided that T would pay compensation to M, and M would stop his threats against T. They would both contribute to pay the court fees for the case. Zhu points out that under State law, adultery is neither a crime nor a tort, thus M has no legal right to compensation from T and there is no legal basis for T’s detention. Zhu however suggests that although the settlement is technically contrary to State law, it is reasonable and based on the recognition of an unwritten customary norm accepted by all parties concerned that adultery constitutes an injury to the husband. The judge applied this norm, not because he identified with it in the cultural or moral sense, but because of pragmatic considerations --- disregard of this norm would lead to public anger in the local community in which the court was situated.
5.The judicial system
Zhu’s most ambitious work to date is represented by his latest book, Bringing the Law to the Villages,57 which is a masterpiece synthesizing empirical sociolegal research with theoretical analysis. The focus of the book is the operation of the ‘basic-level’ (jiceng) courts in China’s rural areas, and the empirical research takes the form of interviews with judges of basic-level courts in Hubei province and fieldwork in the Shanxi province. In the introduction to the book,58 Zhu identifies four reasons why the basic-level courts in China, rather than courts at higher levels of the judicial hierarchy, deserve to be studied as a matter of priority. First, ‘China’s problems are still mainly those of its rural areas. Most of China’s population still live in the rural areas, and one of the most important tasks in the modernization of Chinese society is the modernization of rural society.’ Secondly, modern law is mainly directed towards the urban and commercial society consisting of ‘strangers’ to one another; there is a gap in legal research regarding the needs of people in the rural areas. Thirdly, in terms of the numbers of judges and cases dealt with, the basic-level courts constitute the largest component of the Chinese judicial system. Finally, it is in the basic-level courts that the relationship between law and social reality is most vividly demonstrated and the most challenging issues are raised regarding the development of the Rule of Law in China.Also in the introduction to the book, Zhu reiterates his approach to and methodology of sociolegal scholarship. He points out that he adopts the framework of historical materialism and rejects historical idealism or the premise that legal development is largely a product of the intellect, of concepts or moral ideas. He also acknowledges his debt to modern sociology, the thoughts of Foucault and Bourdieu, the new institutional economics, and the study of ‘law and economics’. As regards methodology:
‘I have borrowed from the analytical perspectives of empiricism, functionalism and pragmatism (there is a degree of consistency among these three schools of thought). I emphasize that practice is the sole criterion for testing a theory, emphasize the practical functions of institutions and laws, and reject the a priori nature of metaphysics. I emphasize consequences that are observable and functions that are comparable, and reject empty talk or games of words such as conceptual analysis.’59
In a chapter60 in the first of the four substantive parts of the book, Zhu tackles the common criticism that the existence of adjudication committees in the Chinese courts is one of their gravest structural defects and obstacles to judicial independence. As all students of the Chinese judicial system would know, such committees have a legal basis in the Organic Law of the People’s Courts.61 Consisting mainly of the president, vice-presidents and divisional heads of the court, the adjudication committee rather than the collegial bench that has actually heard the case has the power to decide on difficult, important or ‘sensitive’ cases. On the basis of his empirical study of the operation of adjudication committees in basic-level courts, Zhu comes up with the controversial thesis that their continued existence in the basic-level courts is justified. Zhu cautions against the call for ‘convergence with international standards’ and the elevation of ‘judicial reform’ to an ideology. The fact that the adjudication committee as an institution does not exist in other jurisdictions does not necessarily imply that China must abolish it in its current drive for judicial reform. Zhu points out that insofar as an institution has enjoyed a relatively stable existence for a relatively long time, it may well have its rationales, may be responding to certain social needs or may be consistent with social conditions. It therefore has a prima facie legitimacy or reasonableness within its social context, and as such deserves to be studied, understood or even respected.62 On the basis mainly of interviews with judges, Zhu concludes that the adjudication committee as an institution in the basic-level courts (he does not propound any thesis regarding adjudication committees in higher level courts) is not only not detrimental to justice or judicial independence but plays a positive role in five regards.
63 First, the adjudication committee can serve to check the abuse of power (particularly corruption affecting decision-making) of individual judges. Secondly, the adjudication committee can help to unify the differing interpretations and criteria of law-application used by individual judges. Thirdly, given that many judges in the basic-level courts have low educational standards and limited judicial abilities, the adjudication committee can exercise a check upon the incompetence of individual judges. Fourthly, in rural communities in which judges have close ties with the local community, judges sometimes prefer to shift the responsibility for the final decision to the adjudication committee so as to resist attempts at interference with their work by powerful people or friends and relatives, or to resist the pressure of local public opinion. Finally, reference of a case to the adjudication committee may enable the leaders of the court to take administrative measures to coordinate with other government departments so as to provide a more satisfactory solution to the problems raised by the case (which problems cannot be simply resolved by a paper judgment) --- in this regard Zhu points out that the primary function of basic-level courts in rural areas is often dispute resolution and problem solving rather than the strict application of legal norms in rendering a judgment.
Despite his basic affirmation of the adjudication committee as an institution in the basic-level courts, Zhu does acknowledge that there are problems with it.64 One of them is that the professional standards of the adjudication committee are often inadequate. In this regard, Zhu proposes as a remedy the administrative re-organization of the courts, so that members of the adjudication committee would not necessarily be the holders of senior administrative positions in the court. His thesis regarding the separation of the administrative operations of the court from its judicial operations is further developed in another chapter of the book.
In that chapter,65 Zhu points out that Chinese courts have to discharge, in addition to judicial functions, quite a lot of administrative functions, such as organizing training programs for judges, organizing income-generating activities, participating in local anti-poverty work, etc. The administrative system in the courts, consisting of office-holders such as presidents, vice-presidents, divisional heads and vice-heads, was legitimately set up to perform such administrative functions. The problem as Zhu sees it is that the administrative system has then infiltrated the judicial operations of the courts and distorted their proper functioning in judicial decision-making. For example, although this practice is not required by law, a custom has developed in the court system whereby individual judges cannot render their judgment without prior approval of the judgment by their administrative superiors, such as the president, vice-president or divisional head. Furthermore, since these administrative office-holders within the court also play an important role in the appointment and dismissal of judges of the court, they are able to exercise disproportionate influence in the judicial work of the court.66 Zhu thus proposes by way of reform of the system the separation of the administrative functions of courts from their judicial function.
Apart from distinguishing the courts’ administrative function from their judicial function, Zhu in his book also draws a distinction between the ‘dispute resolution’ (or problem-solving in concrete and specific cases) function of the courts and their ‘rule application’ function (or contributing to the Rule of Law as governance by general and abstract rules), and discusses the possible tension or conflict between the two functions, and the apparent priority of the dispute resolution function in the work of the basic-level courts.67 Zhu illustrates the thesis by a case in which a woman who had suffered a lot from being battered by her son (because she refused to give him money) went to court seeking to terminate the mother-son relationship. There was no law that could be used to grant her such a remedy. Instead of dealing with the son under the criminal law (which would not ‘solve’ the real problem in this case), the judge devised the ingenious solution of arranging for her divorce from her husband (who had deserted her more than 20 years ago and could not now be found), so that she could find a new husband who could give her protection from her son. In another case,68 the plaintiff was a peasant who lost a leg in an accident for which the defendant was responsible. However, the defendant had no means to pay the plaintiff. The court arranged for the plaintiff to be assigned a job as a watchman so that his livelihood could be guaranteed. It asked the township government to provide tax relief to the plaintiff. It also persuaded the bank to lend money to the defendant so as to pay for the cost of the prosthesis (artificial leg) for the plaintiff as well as some compensation to him.
Finally, the court arranged for an additional sum to be paid as ‘social welfare benefits’ to the plaintiff by the farm for which the defendant worked. Commenting on this case, Zhu writes:
‘If the court simply decides the case according to law and only emphasizes its judicial function, the problem cannot be solved. This might not only lead to serious social consequences (e.g. somebody committing suicide), but the court’s authority would be completely lost because its judgment cannot be enforced.’69
The same case also illustrates another special feature of basic-level courts in rural China: Rather than serving as an impartial arbiter of disputes who is distanced from the parties to the case, the judge sometimes actually plays the role of a lawyer in helping a party to solve her problems.70 This is dictated by the fact that there are few lawyers in China’s rural areas who can cater for the people’s need for legal services. In these circumstances, the ‘judge’ in rural China may have to play a role quite different from a ‘judge’ in a commercial and industrial urban society. ‘Perhaps we should review afresh the rich content of the concept of the judge.’71A third feature of the work of the basic-level courts in rural China is that the courts often have to apply Western legal concepts enshrined in contemporary Chinese law to indigenous practices that may not fit well into Western legal categories. Zhu describes this as a tension between law and fact, or between the ‘standardized’ nature of modern judicial thinking and the ‘non-standardized’ nature of social reality in rural China.72 He cites as an illustration a case in which A was the owner of a cow. He bought the cow by partly using his own means and by borrowing from his fellow villager B. Subsequently B’s own cow died, and B entered into an ‘dahuo’ (which can be translated as ‘joining together’; note that the Chinese legal term for ‘partnership’ is hehuo, which is similar to but not exactly the same as dahuo) agreement with A whereby B waived his right to repayment of the loan, and A and B would share the use of A’s cow for farming purpose. After a few years a dispute arose regarding the distribution of the sale proceeds of cows bought with the sale proceeds of A’s original cow. The problem in this case was that the concept of dahuo is an indigenous one which is not recognized in Chinese civil law, which only provides for the concept of partnership. The court of first instance decided the case on the basis of partnership principles. The decision was overturned on appeal and a re-trial was ordered. Finally the court decided the case on the basis of the concept of common ownership. Zhu writes as follows:
‘The problem is that in Chinese basic-level and rural society, it is difficult to fit many disputes into the framework of legal concepts that has largely been transplanted from abroad.73 … The enacted law has always been more concerned with commercial life or the urban area, even though it carries with it the flag of universal civil rights. ... In every society, areas of the traditional rural economy are to some extent “land not reached by the modern law.”’74
However, Zhu accepts that change will occur as modern legal discourse penetrates into rural life. The application of legal concepts such as partnership or common ownership by the local court in the case just mentioned exemplifies this process whereby ‘a change in the conceptual world … will bring about a change in human behaviour.’75 The rural population may then rely more on lawyers and express their interests and expectations in modern legal language.76
‘As legal discourse continuously reproduces itself and continuously conquers new territories and bodies, the world will become standardized or re-standardized. … There will occur the process of continuous rationalization that Weber described, particularly as the market economy develops. … Confronted with such a picture, people will form their own judgment. Some will see the beauty of the colour of roses --- the modernization of the Rule of Law. But, I believe, there will be some (such as Weber and Foucault) who see in the roses the colour of blood. I do not want to make any evaluation of my own.’77
Another important thesis that Zhu develops regarding the basic-level courts is that there is a division of labour in terms of comparative advantage in the possession and use of different kinds of ‘knowledge’ and ‘techniques’ as between the basic-level courts and the higher courts.78 As mentioned above, the more pressing task of the basic-level courts is dispute resolution and problem solving; rule-application in the sense of developing the Rule of Law on a national scale is left to the higher courts. This does not however mean that the basic-level courts can afford to ignore the written norms in Chinese legislation. Zhu suggests that while their uppermost concern would be to ensure a fair outcome in a case that would be acceptable to the parties and to public opinion,
and they will also not be troubled by procedural niceties, they will still take care to use legal concepts and norms in the ‘packaging’ of their judgment, or to use law to legitimize their decisions. They will decide the outcome of the case first by relying mainly on their intuitions, and only then find the relevant law to justify their decision. They will also exploit the uncertainty in legal language so as to secure the desired outcome. They will select from the facts of the case those that can fit into the official legal framework. Before they give judgment, they will try if possible to secure a settlement by mediation. They will try to avoid the escalation of conflict. They will also pay special attention to the enforceability of the judgment and if necessary secure the cooperation of other local government departments in this regard. These, then, according to Zhu, are some of the characteristics of the specific kind of ‘knowledge’ and specific set of ‘techniques’ developed by China’s basic-level courts in the course of their problem-solving work.Finally, Zhu attempts to offer a sociopolitical explanation of the practice, developed since the early period of Chinese communism, whereby sometimes judges will, instead of summoning parties to the court, visit the locality of the case and try the case there and then.79 Zhu suggests that orthodox explanations in terms of the ideology of the ‘mass line’ or the force of tradition are inadequate because they fail to consider the underlying social, economic and institutional context of this practice of ‘bringing the law to the villages’ (which is also the title of Zhu’s book). In his chapter on this topic,80 Zhu cites a case in which a rural credit association tried to recover a debt from a peasant. The judge, together with the representatives of the credit association, went to the village in which the peasant lived. They visited his home together with the village cadre, where the ‘trial’ was held. In the end the peasant accepted a set of terms regarding repayment proposed by the village cadre. Zhu interprets this practice of the judge visiting the locality and holding a trial there as a ‘strategy of power’81: since State power is weak in and does not effectively penetrate some rural areas which can be described as the ‘peripheral zone’82 of State power, it needs to assert its authority and establish its relationship with the subject. The visit to the village and the ‘trial’ in the peasant’s home can thus be seen as a ‘reconstruction of a power relationship’.83
6. Conclusion
Zhu’s penetrating and insightful analysis of some of the most important issues arising from legal developments in contemporary China as presented above makes him one of present-day China’s most outstanding legal sociologists, or even perhaps the most outstanding among them. He is also by far the most controversial among them. As he himself acknowledges in one of his articles, some people label his thinking as ‘conservatism, postmodernism or dangerous thoughts’.84 His approach to legal scholarship as well as the substantive views he holds on a number of key issues clearly place him quite far apart from the mainstream position of most scholars of legal theory and of substantive law in contemporary China, who generally endorse the Western concept of rights, adopt a universalistic and Enlightenment-based discourse of legal modernization and legal progress, and advocate the reform of Chinese legal and judicial institutions in accordance with internationally accepted norms regarding the Rule of Law.85Zhu’s dissent from this mainstream paradigm is by itself an important contribution to the jurisprudential debate in contemporary China. It enables us to have a more balanced view of the whole picture. While most Chinese jurists assume that legal modernization is legal Westernization, Zhu cautions that Western norms and practices are not necessarily universally valid and applicable. While most Chinese jurists believe in the use of legislation to promote social and economic transformation, Zhu points out that the spontaneous order and customary practices that emerge from the rational choice of countless individuals cannot be easily dictated by the State’s legislative decrees. While most Chinese jurists advocate the Rule of Law, judicial independence and the protection of people’s rights on an abstract and philosophical level, Zhu calls attention to the social reality and the lifeworld of the people. While most Chinese jurists presuppose that enlightened legal ideas constitute one of the most powerful forces behind legal and institutional progress, Zhu relies on Marxist historical materialism in arguing that what ultimately matters are the material and social conditions in which people live, and that the ‘modern’ Rule of Law is a response to the commercialization, industrialization and urbanization of society rather than a liberation from despotism and authoritarianism.
He even reminds colleagues that ‘law talk’ might degenerate into an instrument of the power and privilege of the legal elite. Zhu’s empirical work on the basic-level courts in rural China and his theoretical reflections on the outcome of his study also constitute a very important contribution to legal sociology in contemporary China. There is a dearth of such empirical work in China today. Most Chinese legal sociologists engage in theoretical and philosophical study rather than fieldwork. Zhu’s work in this regard is therefore exemplary and ground-breaking. For example, his analysis of the adjudication committee in the basic-level court demonstrates how theoretical critique without an empathic understanding of the actual facts and practices and their rationales may well be inadequate and misguided. His study of the primacy of the dispute resolution and problem solving function of the basic-level courts demonstrates that the words ‘court’ or ‘judge’ can mean very different things in different contexts. Although Zhu’s contribution to jurisprudence and sociolegal scholarship in contemporary China is highly significant, his work to date is not without limitations and problems. First, his deliberate under-emphasis of the role and significance of legal ideas and ideals may be questioned. He affirms Marxist historical materialism as self-evident truth (note that it is still not permissible in contemporary China to openly in published writings reject Marxist historical materialism, and it is still considered ‘politically correct’ for a scholar to pay lip service to historical materialism even if one does not genuinely believe in it --- but in Zhu’s case he is a genuine and fervent believer in historical materialism), and has taken for granted theoretical presuppositions not necessarily grounded on an objective study of the relative significance of ideas on the one hand and of changes in material and social conditions on the other hand in the legal history of humankind.86 This issue regarding the role of ideas in legal development is not merely academic. For example, if Zhu is right, then scholars who spend most of their time developing theories of the Rule of Law or human rights or propagating them among China’s huge populace are largely wasting their time. Secondly, Zhu is apparently too quick and ready to accept that because long-standing practices and spontaneously evolving customs must have their rationales in social and material conditions (and the discovery of such rationales is, for Zhu, one of the most important tasks of the jurist in her attempt to ‘explain’ such practices and customs), they must be prima facie reasonable and legitimate. Zhu’s framework of thought apparently allows little room for independent moral criticism. The only kind of criticism he envisages is that because of a change in the social and material conditions, the existing customs and practices may no longer be appropriate on the basis of a cost-and-benefit analysis. The heart of the problem goes to Zhu’s view of morality,87 which he regards as based on the self-interest of individuals living and acting under social constraints and as largely explicable from the sociobiological perspective. Just as Zhu does not believe in the possibility of legal development being promoted by enlightened legal ideas, he also does not believe in the possibility of legal reform of traditional practices on the basis of a critical and humanistic moral evaluation that transcends materialistic and utilitarian considerations. This view is difficult to accept on the part of many people who believe in human dignity and the possibility of the moral progress of humankind. Take the issue of corruption, which is probably the most endemic and serious problem in contemporary China. Corrupt practices can be interpreted as a spontaneously developing customary practice resulting from officials promoting their self-interest under a certain set of institutional conditions. Extrapolating from Zhu’s theoretical presuppositions, corruption as a practice emerging during China’s transition from the planned economy to the market economy can probably be regarded as prima facie legitimate and reasonable, just as Zhu regards some practices of ‘avoidance’ of the law by the rural population as legitimate and reasonable. Since Zhu has not so far investigated into the problem of corruption in his writings, it is difficult to say that this would be his conclusion, and I suspect that if pressed he would not defend corruption. However, the fact that his ambitious theory of sociolegal study has not yielded any result so far on one of the most serious law-related sociopolitical problems confronting China today speaks something about the limits of the theory.88Thirdly, although Zhu cites Foucault fairly frequently in his writings and directly employs the Foucauldian conceptions of power and power/knowledge in some of his articles, he has never applied the Foucauldian critique of power to the Communist Party of China and the ruling apparatus in China today.
It is true that Chinese scholars are not yet free to criticize directly the Communist Party or the regime. But many Chinese scholars of jurisprudence have in fact severely criticized the abuse of power on the part of officials and judges, and advocated the Rule of Law as a solution to the problems of the abuse of power. Zhu has never joined in this ‘chorus’. On the contrary, he seems to suggest that this kind of talk about the Rule of Law is too metaphysical, abstract and conceptual to have any real intellectual value. The abuse of power does not appear in Zhu’s writings as a serious problem in contemporary China, neither does he provide any remedy for it. At a time when increasing criticisms of judicial corruption are voiced, Zhu defends the record of performance of the basic-level courts by pointing to the declining rate of appeals to higher courts over the years.89 On the whole Zhu appears to be more critical of the critics of the existing legal system than of the existing legal system itself. That is why he is considered by some as a defender of the status quo or a neo-conservative.90Thus in Zhu’s sociolegal thought, we find a curious mix of conservatism, pragmatism, economic analysis of law, postmodernism,91 nationalism, anti-‘Western ethnocentrism’92 and Marxist materialism. It seems that what distinguishes Zhu from his colleagues in Chinese jurisprudence is that while most contemporary Chinese jurists have come to subscribe to liberalism93 and its legal values as a faith and are explicitly or implicitly promoting liberal values as the guiding principles for the reform and modernization of Chinese law and legal institutions, Zhu has remained a skeptic as to such faith or ideology. The defining characteristic of Zhu’s jurisprudence is a healthy dose of skepticism --- inspired by diverse intellectual traditions such as Marxism, Foucauldianism, American legal realism and economic analysis of law --- regarding the Rule of Law as a liberal ideology.
Liberalism and the liberal version of the Rule of Law94 are still distant ideals for China, but they have already become the living reality of the Western world. The question for China is whether it can or ought to come closer to the liberal world and ultimately become part of it. This is the most interesting question raised by the contrast between Zhu Suli’s thought and that of his adversaries. But if Zhu Suli is right, then it is a question that legal sociology cannot and should not answer: it is a question that only the hundreds of millions of the people of China can answer in the course of time.
Annotation
1 See, for example, Falu zhidu: cong shehui kexue jiaodu guancha (1994) [translation by by Li Qiongying and Li Xin of Lawrence M Friedman, The Legal System: A Social Science Perspective (1975)]; Falu de yunzuo xingwei (1994) [translation by Tang Yue and Su Li of Donald J Black, The Behavior of Law (1976)]; Zhuanbian zhong de falu yu shehui: maixiang huiying xing fa (1994) [translation by Zhang Zhiming of Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (1978)]; Xianda shehui zhong de falu (1994) [translation by Wu Yuzhang and Zhou Hanhua of Roberto M Unger, Law in Modern Society (1976)]. These works form part of a series of translated works under the general editorship of Ji Weidong.
2 See, for example, Zhao Zhenjiang (ed), Falu shehui xue [Legal Sociology] (1998); Li Dun (ed), Falu shehui xue [Legal Sociology] (1998); Zhu Jingwen, Bijiao fa shehui xue de kuangjia he fangfa [The Framework and Methodology of Comparative Sociology of Law] (2001).
3 See, for example, Gong Pixiang, Fazhi xiandaihua de lilun luoji [The Theoretical Logic of Legal Modernization] (1999).
4 See, for example, Zhang Jinfan, Zhongguo falu de chuantong yu jindai zhuanxing [The Tradition and Modern Transformation of Chinese Law] (1997).
5 See, for example, Xie Hui, Falu xinyang de linian yu jichu [The Concept and Foundation of Faith in Law] (1997).
6 See, for example, Ma Changshan, Guojia, shimin shehui yu fazhi [The State, Civil Society and the Rule of Law] (2001).
7 See, for example, Zuo Weimin and Zhou Changjun, Bianqian yu gaige: fayuan zhidu xiandai hua yanjiu [Change and Reform: A Study of the Modernization of the Judicial System] (2000).
8 See, for example, Su Li, ‘Contextualism: An Approach to and Methodology of Research on Legal Systems’ [2000] 1 Zhongwai faxue [Peking University Law Journal] 40.
9 Su Li, Fazhi ji qi bentu ziyuan [The Rule of Law and its Indigenous Resources] (1996); Su Li, Yuedu zhixu [The Order of Reading] (1999); Su Li, Zhidu shi ruhe xingcheng de [How Institutions are Formed] (1999); Su Li, Songfa xiaxiang: Zhongguo jiceng sifa zhidu yanjiu [Bringing the Law to the Villages: A Study of the Basic-level Judicial System in China] (2000).
10 As revealed by himself in Order of Reading, above n 9 at 3.
11 Zhu has single-handedly translated most of Posner’s books into Chinese.
12 Su Li,
‘May be This is Happening: An Overview of the Development of Contemporary Chinese Jurisprudence’ [2001] 3 Bijiao fa yanjiu [Studies in Comparative Law] 1.
13 Su Li, above n 8.
14 Id at 52.
15 Su Li, Institutions, above n 9 at 1-2. This is my own translation from the Chinese original. Other quotations in this chapter from Professor Zhu’s works are similarly my own translations.
16 Su Li, Order of Reading, above n 9 at 278.
17 Su Li, above n 8 at 51.
18 Su Li, Institutions, above n 9 at 158.
19 Su Li, Order of Reading, above n 9 at 281.
20 Id at 64.
21 See generally Lon L Fuller, The Morality of Law (rev ed, 1969).
22 Su Li, Institutions, above n 9 at 242; Su Li, Order of Reading, above n 9 at 148; Su Li, ‘Dispute Resolution and Governance by Rules in Rural Basic-level Courts’ (1999) 2:1 Beida falu pinglun [Peking University Law Review] 80.
23 Su Li, Order of Reading, above n 9 at 148.
24 Su Li, Rule of Law, above n 9 at 8.
25 Su Li, ‘Modernization and the Rule of Law in Twentieth-century China’ [1998] 1 Faxue yanjiu (CASS Journal of Law) 3 at 7. The English translation of a condensed version of this article is Suli Zhu, ‘Paradoxes of Legal Development in 20th Century China from the Perspective of Mondernisation’ (1998) 28 Hong Kong Law Journal 429.
26 Su Li, Order of Reading, above n 9 at 161.
27 Id at 11; Su Li, Rule of Law, above n 9 at 20.
28 Su Li, Institutions, above n 9 at 234.
29 Id at 229-230, 237-238.
30 Su Li, Order of Reading, above n 9 at 151-166.
31 See Ferdinand T?nnies, Gemeinschaft und Gesellschaft [Community and Society] (1963).
32 See, for example, Fei Hsiao-tung, From the Soil: The Foundations of Chinese Society [translation by Gary G. Hamilton and Wang Zheng of the Chinese book Xiangtu Zhongguo] (1992).
33 Su Li, Order of Reading, above n 9 at 166-167.
34 Su Li, above n 25 at 3-4.
35 Id at 8.
36 Id at 6.
37 Id at 7.
38 Id at 10.
39 Id at 11.
40 See generally Su Li, Rule of Law, above n 9 at 13-14; Su Li, Order of Reading, above n 9 at 30.
41 Su Li, Rule of Law, above n 9 at 16.
42 Id at 21.
43 Id at 21-22.
44 Su Li, Order of Reading, above n 9 at 33; Su Li, above n 25 at 13.
45 Su Li, above n 25 at 14.
46 Su Li, Order of Reading, above n 9 at 33.
47 Su Li, above n 25 at 13.
48 Su Li, Rule of Law, above n 9 at 23-37.
49 Su Li, Rule of Law, above n 9 at p 27. ‘Local knowledge’ is a concept developed by the anthropologist Clifford Geertz and is the title of one of Geertz’s books.
50 Su Li, Rule of Law, above n 9 at 28.
51 Id at 41-58.
52 Id at 54-55.
53 Id at 59-73. The English translation of this article is Su Li, ‘More on Avoidance of the Law’ [winter 1998] Social Sciences in China 145.
54 Id at 65.
55 Id at 62-63.
56 Su Li, ‘Custom in Contemporary Chinese Law’ [2000] 3 Zhongguo shehui kexue [Chinese Social Science] 124.
57 Above n 9.
58 This introductory essay for the book has also been published separately in [2000] 3 Fashang yanjiu [Studies in Law and Commerce] 82.
59 Su Li, Bringing the Law to the Villages, above n 9 at 20.
60 Id at 88-145, also published separately as ‘Investigations and Reflections on the System of Adjudication Committees in Basic-level Courts’ [1998] 1:2 Beida falu pinglun [Peking University Law Review] 320.
61 See generally Albert H Y Chen, An Introduction to the Legal System of the People’s Republic of China (rev ed, 1998) at 104-127.
62 Su Li, Bringing the Law to the Villages, above n 9 at 90.
63 Id at 106-123. See also the two cases discussed by way of illustration at 127-136 of the same work.
64 Id at 124-127.
65 Id at 61-87, also published separately as ‘The Judicial Functions and Administrative Management of Courts’ [1999] 5 Zhongwai faxue [Peking University Law Journal] 36.
66 Su Li, Bringing the Law to the Villages, above n 9 at 73-78.
67 Id at 176-196, also published separately as ‘Dispute Resolution’, above n 22.
68 Su Li, Bringing the Law to the Villages, above n 9 at 131-132.
69 Id at 132.
70 Id at 316-317.
71 Id at 321.
72 Id 197-237, also published separately as ‘Intertwined with Facts and Law’ [2000] 3 Falu kexue [Legal Science] 3.
73 Su Li, Bringing the Law to the Villages, above n 9 at 216.
74 Id at 227.
75 Id at 235.
76 Id at 233-234.
77 Id at 236-237.
78 Id at 264-295, also published separately as ‘Revelations about the Judicial Knowledge of Basic-level Judges’ [2000] 3 Xiandai faxue [Modern Legal Science] 9 (part I); [2000] 4 Xiandai faxue [Modern Legal Science] 12 (part II).
79 Su Li, Institutions, above n 9 at 56-82.
80 Su Li, Bringing the Law to the Villages, above n 9 at 27-53, which is a re-print of the article referred to in n 79 above.
81 Su Li, Institutions, above n 9 at 63.
82 Id at 59.
83 Id at 67, 72.
84 Su Li, above n 22 at 90.
85 For general surveys of the field, see the following articles of mine: ‘Developing Theories of Rights and Human Rights in China’ in Raymond Wacks (ed), Hong Kong, China and 1997: Essays in Legal Theory (1993) 123-149; ‘The Developing Theory of Law and Market Economy in Contemporary China’ in Wang Guiguo and Wei Zhenying (eds),
Legal Developments in China: Market Economy and Law (1996) 3-20; ‘Confucian Legal Culture and its Modern Fate’ in Raymond Wacks (ed), The New Legal Order in Hong Kong (1999) 505-533; ‘Toward a Legal Enlightenment: Discussions in Contemporary China on the Rule of Law’ (1999) 17 UCLA Pacific Basin Law Journal 125.
86 This does not mean that Zhu has not written insightfully on aspects of legal history. See, for example, Su Li, Institutions, above n 9 at 83-99 (on the history of the case of Marbury v Madison), 127-151 (on the origin of the character fa – the Chinese character for the word ‘law’); Su Li, Order of Reading, above n 9 at 232-274 (on the history of social contract theory).
87 See, for example, Su Li, Order of Reading, above n 9 at 49-60; Su Li, Institutions, above n 9 at 15-43.
88 In a conversation with the author in 2002, Su pointed out that issues of officials’ abuse of power and corruption are political issues, including issues of supervision, rather than legal issues.
89 Su Li, Bringing the Law to the Villages, above n 9 at 393-421.
90 This is not to suggest that Zhu’s scholarly views were consciously influenced by politics. Indeed, unlike many Chinese legal theorists whose research agendas have been shaped by changing political slogans of the Chinese Communist Party in the 1980s and 1990s, Zhu’s scholarship has not apparently been influenced by the winds or atmosphere of Chinese politics. There is no question that Zhu is an independent scholar rather than a spokesman for the regime.
91 See, for example, Zhu Suli’s chapter on postmodern jurisprudence in Zhu Jingwen (ed), Dangdai xifang houxiandai faxue [Contemporary Western Postmodern Jurisprudence] (2002) at 41-50, and Su Li, Rule of Law, above n 9 at 268-291.
92 This is not to suggest that Zhu is anti-Western. As can be seen in this chapter, most of the analytical tools in Zhu’s intellectual apparatus have been borrowed from the West.
93 By ‘liberalism’ I mean here the political and legal thought founded in the 17th and 18th centuries by thinkers such as Locke, Montesquieu, Kant and the founding fathers of the American Constitution, as propounded in late 20th century by political and legal philosophers such as John Rawls and Ronald Dworkin. Liberalism privileges individuals’ rights and advocates the Rule of Law and constitutionalism as means for the control of political power, the abuse of which constitutes one of the gravest threats to the rights of individuals.
94 For liberal and non-liberal versions of the Rule of Law and their relevance to China, see Randall Peerenboom, China’s Long March Toward Rule of Law (2002).
