The editors of Comparative Perspectives on Criminal Justice in China have assembled an impressive collection of essays by scholars from Asia and the West which critically evaluate various aspects of China's criminal justice system. The volume is divided into seven parts with the core four sections – analysing the various stages of the criminal process – flanked by an introductory section containing two contributions (by Jerome Cohen and Mike McConville), a conclusion (by Stanley Lubman), as well as a multi-authored postscript commenting on the 2012 revisions to the Chinese Criminal Procedure Law, revisions which took effect after many of these contributions had been written.
Focusing on the core sections of the volume, part two examines the investigation phase of the criminal process with specific reference to the complex issue of interrogation of suspects and witnesses and tortured confessions. The empirical analysis by He Jiarong and He Ran, as well as the historical analysis of Ira Belkin, demonstrate a pervasive link between wrongful convictions and tortured confessions, as well as the long-running institutionalization, and even promotion, of the use of tortured confessions by officials. The contributions of part three introduce the complexities of the prosecution phase of the criminal process and focus on the problematic nexus between the plea (guilty or not guilty) and sentencing. Here, some of China's most distinguished criminal justice scholars draw on broad empirical analysis, as well as local test cases, to advocate specific reforms designed to increase consistency and fairness in the sentencing process, while Ian Dobinson provides a critical comparative reflection on the differing values ascribed to a guilty plea in the Chinese and Australian legal systems. Part four provides a multifaceted depiction of the role (or plight) of criminal defence lawyers in China. The empirical evidence demonstrates potential gains for a client if represented by a defence lawyer; however, this success is limited to specific areas of argumentation (Zuo Weimin and Ma Jinghua). More sobering, one sees that state-sponsored harassment is not the only impediment for a fair defence, but that its prevalence has, over time, engendered a high level of internalized self-censorship by so many defence lawyers (Elisa Nesossi and Lan Rongjie). Part five considers a range of issues external to the formal criminal justice process. While some contributions consider programmes introduced to curb specific social problems, nearly all the contributions of this section highlight the dangerous ways in which such procedures and practices may easily be manipulated for state or Party purposes.
Individually, each section provides valuable insight into the multitude of obstacles impeding effective reform on specific aspects of the Chinese criminal process. Yet, taken as a whole, the entire volume clearly demonstrates how various issues impeding reform at one stage of the criminal process directly or indirectly impede effective reform at other stages. For example, the extraction of false confessions via torture (part two) leads to problems related to introduction of evidence, to the plea process, or to sentencing during the prosecution stage (part three). This in turn frustrates the attempts by defence lawyers arguing the illegality of evidence obtained from their clients and can make the lawyers targets of harassment or prosecution (part four). Finally, the extensive and often ambiguously defined powers of the police, the inability to curb corruption and the politicization of criminal justice can negatively influence the criminal process at any stage (part five). The interconnected nature of such problems leads one to ponder how any single reform proposal could possibly deal with the enormous complexity of procedural reform in China.
One minor shortcoming of the volume is its uneven “comparative” perspective. A few contributions lack any engagement with comparison, while in others the comparison seems to be comprised of anecdotal jurisdictional differences that are never fully analysed or contextualized. This is not to say, however, that all of the contributions lack a comparative outlook, nor that all comparison must be inter-jurisdictional (one could make the argument that any multi-authored volume is implicitly comparative). The introductory contribution by McConville provides a lengthy and thorough comparison between China and the West and eloquently argues the value of comparison when studying Chinese law. Likewise, the findings in Dobinson's contribution, which examines conceptual and procedural differences related to guilty pleas in China and New South Wales, clearly demonstrate the potential gains of carefully crafted comparative research. For others, comparison is temporal or even theoretical. Belkin's contribution makes an historical comparison of the successes or failures of past reforms in China to the present, while Fu Hualing compares competing theories on the developmental trajectory of Chinese politico-legal corruption from the perspective of anti-corruption investigation. Each of these contributions clearly demonstrates the value of comparative engagement in Chinese legal reform analysis, but such engagement is not necessarily reflected in all the contributions.
On a related note, most of the inter-jurisdictional comparands selected in this volume are drawn from Western legal systems, yet the legal elements of the “West” are often, as is usually the case in Anglophone studies, defined implicitly or explicitly through the common law. Certainly McConville references continental law, as does Chen Guangzhong, yet the question remains as to what extent the very comparands selected limit the comparative project or limit the efficacy of any reform proposal predicated upon such analysis. Yu-jie Chen's analysis of Taiwanese lawyers' activism in pushing for reform both under and after martial law quite eloquently demonstrates the value of comparing Chinese legal developments to jurisdictions which have had similar historical, cultural, social or political backgrounds. Extending such a methodology, we could then ask whether or not comparative analyses of the social and political problems confronting the legal liberalization and development in jurisdictions such as Soviet and post-Soviet states or post-colonial states might illuminate specific targets or strategies of reform which prove more efficacious in China today.
Despite this minor critique, the authors and editors of this volume are to be commended for producing a valuable contribution to the study of Chinese law that will hopefully inspire future comparative research. As China settles in to a new leadership regime, the views presented in these chapters offer some hope, but a hope tempered with the reality of the magnitude of problems confronting any successful reform in China.
