This article considers some of the formidable intellectual problems involved in studying the Chinese criminal process. Much can be learned about another country by studying its legal institutions; a study of sanctioning institutions promises insight into a society's view of order, deviance, individual rights, and the allocation and application of punishment. But how can foreign institutions most perceptively be studied? Only rather recently has analysis of the American criminal process become notably more sophisticated. Our own inexperience coupled with China's alienness and the lack of accurate information threaten to impede perceptive studies of Chinese institutions. But the problem is pressing and scholarship may moderate the distorted perceptions which the People's Republic and the United States now have of each other.
This article suggests that we can best study Communist Chinese legal institutions by defining their functions in Chinese society and examining their relation to their bureaucratic and political environment. We stand to gain not only better understanding of the complex revolutionary Chinese nation, but insight into the way American lawyers view other non-Western nations. The student of Chinese legal institutions must cross not only obvious cultural frontiers, but also more subtle frontiers of methodology and imagination. Unless successful in making this transition, American inquiries into non-Western legal institutions may distort the subject of study.
This article reviews the institutions which comprised the Chinese criminal process before the onset of the "Great Proletarian Cultural Revolution" in 1965 and traces some of the major changes in Communist Party policy toward those institutions. (Because they may not survive the Cultural Revolution or may be drastically reconstituted in the future, they are discussed in the past tense.) Study of the Chinese criminal process may be particularly fruitful in leading to insights into Chinese legal and administrative processes generally. Since the People's Republic was established in 1949, criminal law has been the most frequently discussed legal subject. Also Chinese Communist attitudes toward criminal law clearly reflect their attitudes towards social control, coercion and political leadership generally. As a first step in defining the perspectives needed to study these matters, I will discuss some possibly helpful readjustments in research outlook, in particular the importance of studying Chinese legal institutions as they have been shaped by extra-legal forces such as Communist policies toward the role of bureaucracy in revolutionary and post-revolutionary China. The article concludes by applying a functional approach to the problems of defining the most important influences on the operation of the Chinese criminal process, and by suggesting the kinds of insights into Chinese society which studying the process may provide.
Stanley B. Lubman,
Form and Function in the Chinese Criminal Process,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/chinese_legal_studies/3