Bird in a Cage: Chinese Law Reform after Twenty Years

I am grateful to the editors of this journal for inviting me to return to its pages to help mark the twentieth anniversary of its inaugural issue. History now tells us that publication of that first issue happened to coincide with the beginning of an extraordinary period in Chinese history that has seen extensive reforms transform the Chinese economy and Chinese society. These reforms, no less dramatic than the revolutionary transformations of the 1950s, have caused law to gain unprecedented importance in Chinese society. The Journal\u27s anniversary provides an opportunity to review some of the major characteristics of Chinese legal institutions as they have developed over the last twenty years, to speculate on their future, and to note some issues that they present to the United States. When I wrote in 1979, it was easy to summarize the state of Chinese legal institutions because they were so sparse. Although a judicial system had been created on the Soviet model in the 1950s, it had been politicized by the end of that decade after a brief period of liberalization, and then further wrecked by the Cultural Revolution. A new period of institution building began in 1979; reconstruction of the courts began and the law schools, closed for a decade, reopened. Most fundamentally, the policies of the Chinese leadership seemed to promise, as I noted then, attempts to conceptualize and articulate notions of law as an objective set of rules and standards to protect rights. \u27 At the time, there was only promise; my article cited no legislation giving shape to new institutions, because none had yet appeared. The evidence of impending change seemed clear, prompting me to pose some questions about what might lie ahead in the future. My earlier speculations still seem timely today, and I have revisited them below in this article. I have surveyed Chinese law reform and the obstacles to further reform more extensively in a book, Bird in a Cage: Legal Reform in China After Mao, whose title I have borrowed and from which I have drawn for this article