Ten years ago, when I told people I was writing a book on intellectual property in China, they joked that it must be a very short book. Such a response betrays a view which privileges outcomes while ignoring political, economic, social and normative structures and processes. In China, however, the former tend to be rather modest, while the latter are manifold, complex, contradictory, and critical to understanding state institutions and societal dynamics. Rachel Stern, too, focuses on process rather than on outcomes in her illuminating new book, Environmental Litigation in China, which she uses as a wormhole through which to document China's broader legal developments over the past dozen years.
Drawing from an extensive pool of English- and Chinese-language primary and secondary sources, internal documents and close to 200 interviews, Stern literally takes us into the courts, legal clinic offices and smoke-filled backrooms; as well as into the thought processes of the various actors – judges, lawyers, plaintiffs, defendants – involved in environmental litigation. Her principal argument is that the Chinese state is marked by a significant degree of ambivalence to which legal actors respond, often navigating, sometimes exploiting, as a way of overcoming traditional dilemmas of authoritarian regimes' approach to law.
Stern eschews a traditional political science approach in which the goal is to link variation between cause and effect. Instead, given the quality of her data, she wisely focuses on processes, teasing out various themes which, in turn, revolve around extensive discussions of the primary actors involved. Her questions focus more on what, how, and even when, than on why. She thus forces us to confront a messy world of contradictions, chance opportunities and sudden changes in thinking and strategy, one in which the more one attempts to generalize, the less one understands what is actually occurring.
Chapter five, the strongest in the book, takes us through the vertiginous world of incentives, constraints, opportunities and dangers that judges face every single day. Yet, even within this inhospitable climate, judges can – and sometimes must – innovate in unexpected ways. Similarly, chapter six is a thorough survey of environmental litigation lawyers, exploring their motivations, professional trade-offs, propensities toward political risk-taking, as well as their own ambivalence about serving the socialist state. Here, too, innovation occurs, whether consciously or not, particularly in the case of venue-shopping.
Chapter seven on international influences does not quite fit in as well as the others, but I am glad Stern decided to include it. Although highly visible, international activity's impact on environmental litigation in China is at best modest, for reasons ranging from structural (INGOs' propensity to focus on issues of human rights and democratization) to idiosyncratic (many Chinese use international legal training opportunities to work on their English).
The only dimension in the book I found somewhat wanting is her treatment of the state (chapter four). She draws from Migdal's “anthropology of the state,” in this case regarding the question of ambivalence. She makes a point of distinguishing “ambivalence” from “arbitrariness” (p. 100), embedding a degree of intentionality into the mix (which I think is warranted), but ultimately avoids further examining the state in a sufficiently systematic fashion. There is very little about how judges, lawyers, and litigants interacted with various government bureaucracies other than the environmental protection bureaus. She hints that this occurs (i.e. interaction with the agriculture bureaus on environment issues), but it would have been nice to have read a bit more on how this can actually positively affect outcomes more broadly. Similarly, Stern provides some excellent insights into how the CCP might actually strengthen the legal process, yet says practically nothing about the complex budgetary arrangements within the (primarily local) governments in which the courts she examines are embedded. Instead, she substitutes the idea of “political ambivalence” (“conflicting official [or quasi-official] signals, defined as observable indications of official preferences, regarding the desirability of state action” p. 4). As a result, the lion's share of her descriptions and discussions are about the behaviour of various state-, non-state and quasi-state actors in response to this ambivalence. But this is arguably an interactive process, not simply a reactive one.
Although her prognosis is not terribly heartening – over the past decade, things on the litigation front in China have changed relatively little – Stern does offer some important glimmers of hope. First, the entire legal professional profession appears to be much better trained than it was just a decade ago. Second, there appear to be a growing number of professional institutions – formal associations, merit-based designations and rigorous professional requirements – that allow legal actors to use their professionalism as a way of securing some autonomy from state demands. Thus they can carve out the legal “policy space” that is key to more effective governance, including the legal realm. Finally, the processes she has documented have provided an increasingly “sticky” and hospitable environment for “an elite conversation over public interest law” (p. 211).
In addition to the thoughtful narrative choices she makes (the book is replete with vivid anecdotes and examples), Stern writes in an extremely approachable manner. Her prose is precise, yet extremely engaging. She admirably avoids jargon. This makes Environmental Litigation in China far more accessible than most books on Chinese law. It will not only be stimulating for graduate students, but appropriate for upper-level undergraduates as well. It will appeal equally to legal scholars, China watchers in academic and in policy circles, and to those interested in law and society more generally.
