Huang, Philip C.C., Chinese Civil Justice, Past and Present, Lanham, MD: Rowman & Littlefield Publishers, 2010. xviii, 297 pp. $59.95 (cloth).
By Xiaoping Cong
As a leading scholar in the field of Chinese legal history, in the past two decades Philip C.C. Huang has produced a series of scholarly works that cover a wide range of topics, from the Qing legal code to the contemporary Chinese legal system. His current book, drawing mainly from his previous works, is both a further effort at constructing a theoretical approach to the study of legal history and a search for a better understanding of the unique characteristics of Chinese modernity.
In the preface and the introduction, the author first gives an overall review of the field of Chinese legal history while presenting his theoretical approach. According to Huang, the traditional legal system of China “suffered three devastating blows in the past century” (p. xii). The first occurred during the late Qing and early Republican period, when the Chinese legal tradition was replaced by imported Western laws in order to gain sovereignty for Chinese modern nation-state. The second blow struck during the Communist revolutionary period (1940s to 1970s), when the revolutionary legal system rejected both traditional law and the Western law adopted by the Guomindang legislature. The third and final blow took place after the late 1970s, with the beginning of the reform period. It was at this time that the Chinese legislative authorities rebuffed both traditional law and Maoist legal practices, beginning a wholesale importation of Western law.
According to Huang, the contemporary Chinese legal system has inherited three traditions: the legal tradition of the imperial past, Communist revolutionary practices, and legal ideas imported from the West in the last hundred years, when China came to face the power of Western modernity. However, Huang argues, studies of legal history in contemporary China often fail to recognize the historical consistency in which the endogenous practices and imported systems are entangled and interact. Moreover, contemporary legal scholars prioritize Western theories over Chinese legal pragmatism, ignoring that the legal formalism adopted from the West often creates more problems than it solves. Based on this diagnosis, the author proposes that we adopt a “history-of-practice” approach to researching Chinese legal history. His method intends to “spotlight the historicity of the humanistic and social spheres of life” and how practice interacts over time “with theory, representation, and institutions” (p. 2). The author also declares that “history-of-practice” is neither a purely empiricist method nor a purely retrospective approach; rather, he seeks to develop theoretical concepts that are appropriate to Chinese realities while “accompanied by prospective (i.e., forward-looking) moral visions” (p. 2).
In Chapters 2 to 4, Huang demonstrates his theoretical perspective and his research method by presenting the work he has developed over the past two decades, mainly his study on how the mediation method was used in various civil disputes and to what extent the state has been involved in mediation and community affairs from the Qing period to the reform era of the 1980s and 1990s. Huang argues that during the Qing period the state adopted a centralized minimalism in civil disputes, viewing them as “minor matters” (xi shi) and leaving them to be solved locally through community mediation. Only when community mediation encountered a deadlock did the Qing state exert its semiofficial influence on community affairs in the “third realm”—a notion Huang introduced in early 1993 when he sought to highlight the impossibility of applying Habermas’s theory of the “public sphere” and “civil society” to the interpretation of Chinese history. However, during the Mao era (1949 to 1976), the state power represented by local courts formalized mediation by making it a part of the legal process of civil disputes. Thus, it was this practice over time that made mediation, as a revolutionary legacy, an indispensable part of the contemporary legal system. In Chapter 5, Huang makes an insightful criticism of contemporary legal reform by pointing out that as a result of directly implanting Western law, the reform of evidence procedure that shifted responsibility for evidence gathering from courts to litigants in civil disputes had some “unintended consequences” (p. 125). The author worries that the domination of Western formalism in contemporary Chinese legal thought may lead the legal system to “emphasize formalities more than substance” (p. 135). In the conclusion, the author once again suggests that the development of the modern Chinese legal system represents a case of Chinese modernity that neither followed a Western model nor preserved Chinese tradition; rather, it is the result of social practices over time.
I find that Huang’s “history-of-practice” approach provides a valuable theoretical perspective and research method for studying legal history, but I would like to know more about the “prospective moral visions,” which do not seem to be clearly described in the book. The author’s macro-history approach to the study of legal practice has the advantage of helping us see through the historical imbroglios and grasp the main thread (if there is any) of social practices, but this perspective may fail to note some important details of the past that could tell us more about the motives behind the social changes. For example, the author conventionally accepts “Ma Xiwu’s Way of Judging” in the 1940s as the origin of the Communist state’s involvement in mediation during the period of the Shaanxi-Gansu-Ningxia Border Region (SGNBR); however, Ma’s example itself does not explain why and how the Qing state’s minimal involvement in civil disputes was transformed into the Communist state’s adoption of mediation as a required legal process. In most of the book the author bases his arguments on the analysis of a large number of legal cases; regretfully, I do not see a similar analysis of concrete legal cases for his argument on the origin of revolutionary legal practice in the SGNBR period. In addition, since the structure of the book centers on the study of mediation from different angles, similar arguments often appear in various places, and readers will find redundancies here and there.
Xiaoping Cong is Associate Professor in the History Department at the University of Houston. She is the author of Teachers’ Schools and the Making of Modern Chinese Nation-state, 1897-1937, published in 2007 by the University of British Columbia Press.
© 2011 by Twentieth-Century China Editorial Board. All rights reserved.