Document Type

Article

Publication Date

1994

Abstract

What can the study of Chinese law bring to the study of China itself? This Article first distills what we have learned. It reviews Chinese legal studies since their revival in the 1960s in the United States, where foreign studies of modem Chinese law has been most vigorous since the People's Republic of China ("PRC") was established. The major themes that emerged from research before the reform decade emphasized the politicization of law, the persistence of traditional cultural influences and the impact of bureaucratic practice on current institutions - all themes which remain important today. Since the advent of reform, the most notable studies of Chinese law have explored the extent to which emergent legal institutions protect and legitimate economic transactions, the activities of new or revived dispute settlement mechanisms, and the appearance of nascent conceptions of legal rights; meanwhile, ominously, the criminal process remains highly politicized.

The article then turns to methodological problems in the study of Chinese law. Much of what has been published on Chinese law in recent years, particularly in American law reviews, has amounted to little more than cataloging recent developments and explicating texts. Major obstacles to study are created by the object of study itself: China does not yet have a legal system; the continued relationship between law and politics remains obvious; law is often treated formalistically. Values derived from a Chinese culture that is itself in the course of change continue to shape both the outlines and activities of institutions, but are difficult to identify clearly in practice. Meanwhile, China itself remains closed to the student of law in practice.

Disciplines

Comparative and Foreign Law | Law

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