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Danny Gittings

Bird In A Cage: Legal Reform In China After Mao

by Stanley B Lubman

Stanford University Press $650

WHEN A BOOK jumps to the top of academic reading lists even before being published, it is a sign of either the author's high standing on that subject, or the dearth of serious literature in the area.

In this case, it is clearly a combination of the two.

There is no doubting the authority with which Stanford University Consulting Professor Stanley Lubman writes about the mainland legal system: he is one of the very few Westerners who has been following the subject for more than 30 years, long before China's opening up to the outside world made it a more fashionable and approachable topic.

Nor is there any disputing the lack of serious studies on a subject that until relatively recently few considered worth writing about.

Prior to the reforms that began in the 1980s - the mainland legal system was almost indistinguishable from other instruments of Communist Party control and of little importance to the outside world.

So, even before its publication, Bird In A Cage was not merely on the reading list for at least one locally taught course in modern Chinese law, but even flagged as the core reading text.

This is not just a book for scholars, however.

More readable than many legal works, it will certainly help those doing business with the mainland understand a little more about the structure and shape of the legal system they have to contend with.

It may also be of interest to anyone in Hong Kong who wants to know about a subject that can now have a profound impact on the SAR - as was demonstrated by last year's National People's Congress Standing Committee reinterpretation of the Basic Law during the right of abode saga.

The irony is that, as Lubman observes, it is questionable whether China has an effectively functioning legal system in any real sense of the term.

This is not just due to the patent injustices reflected in the show-trials of political dissidents and liberal use of the death penalty for criminal offences. The problems are equally severe in other areas, such as commercial law, that are of particular concern to those doing business with the mainland.

Mainland legislation continues to be written in such generally worded terms that it is difficult for foreign investors to know if they are breaking the law, especially when the precise meaning often hinges on 'clarifications' issued by Communist Party bureaucrats.

And while growing economic prosperity has brought many benefits, such as a more independent role for lawyers, it has also created fresh problems by enhancing the power of local authorities to defy Beijing's attempts to ensure the uniform application of laws throughout the country.

In one telling anecdote, Lubman notes how a local judge who dares to rule against the authorities in the area - upon whom he is entirely dependent for funding - will then find that the new building his court had been promised no longer gets built.

The author is certainly not on some anti-China crusade.

Instead he advises his fellow Americans to quit their 'sanctimonious' moralising and not 'hector' Beijing, with illusions that it will develop a legal framework that is a carbon-copy of that in the United States.

Lubman also does a good job of highlighting the huge impact that the impending accession to the World Trade Organisation will have on the mainland legal system, which will then be required to publish and administer all trade laws in a 'uniform, impartial and reasonable manner', something that is far from the case at present.

But he slips slightly by only mentioning in passing, and totally failing to analyse, the implications of China's 1998 signing of the International Covenant on Civil and Political Rights. This is a key human rights document that other scholars believe will have a far greater impact than WTO entry on a mainland legal system, which currently violates many of the covenant's key provisions.

But that is a small omission in an otherwise comprehensive review of this sparsely written about subject.

Bird In A Cage is not just an essential text for students of Chinese law but also recommended reading for anyone interested in the future path of the rule of law on the mainland.



Unravelling mainland law