The interaction between the millennial dominant orientations of Chinese culture and the entire impact of modernization and of Marxism-Leninism is a story that is unfolding before our eyes, and we have no neat formula for predicting its outcome

By focusing on legal reforms this Special Issue of The China Quarterly draws attention to a group of institutions whose fate is crucial for China's future. The economic reforms that have transformed China since the late 1970s are generating new institutions and transactions that demand legal definition. The surge of foreign direct investment that has made China the world's largest capital-importing country makes necessary further development of the legal framework for foreign trade and investment. More-over, forces broader and needs deeper than those produced by economic development will also help to impel Chinese law reforms.

When the Chinese leadership turned its attention to creating a legal order after the end of the Cultural Revolution, one of its expressed concerns was to reduce official arbitrariness. Even though the totalitarian grip of the Chinese Communist Party has weakened since then, concerns about arbitrariness are no less and can only increase. Furthermore, if China is to cope with the many problems that are by-products of economic reform, including a decline in social order, spreading corruption and a general crisis of values, it will need strong legal institutions and a legal culture that promotes the rule of law. The rule of law has become an issue for many more Chinese than just their leaders or intellectuals.

A prevalent image of China, both historically and in recent times, has been that of a civilization spared the malady of too many lawyers that is said to beset the United States and growing numbers of other nations. For better or worse, so such thinking goes, China has sought to address its problems primarily through reliance upon morality, custom, kinship or politics, rather than formal legality, with the result that there has been relatively little need for individuals whose work lies in the law. No wonder that it was Shakespeare, rather than a Chinese author, who gave voice to the much-cited, if arguably misunderstood, call to “kill all the lawyers first.”

Thirty years ago, in his landmark study of how “a bill becomes a law” in the United States, Daniel Berman reminded constitutional scholars that policy-making processes have an enormous impact on the content of the laws they produce, and are not mere “technical devices” designed to permit orderly Congressional lawmaking. This article begins from the assertion that 16 years after the beginning of China's post-Mao political and legal reforms, scholars of Chinese politics and law need to pay greater attention to the impact which lawmaking processes have on the content of the laws and policies that this system produces. Specifically, it asks the following questions. First, how are national-level laws drafted in post-Mao China, and what are the politics of the lawmaking process? Secondly, what factors in the process affect the “life chances” of a particular draft law? That is, why do some laws win a place on the legislative agenda, while most drafts languish in obscurity, and still others emerge briefly, only to disappear later into the bureaucratic swamp? And finally, what systematic impact, if any, do the politics of the lawmaking process have on the content of the laws which the system produces?

When judgements are not executed, the law is worth nothing. – “The masses”

It is a staple of Chinese legal literature that the judgments of Chinese courts in civil and economic cases are plagued by a worryingly low execution rate. This perception should be taken seriously. When the President of the Supreme People's Court devotes significant space to it in his report to the National People's Congress, as did Zheng Tianxiang in 1988 and Ren Jianxin in subsequent reports, clearly something interesting is going on. Yet it would be a mistake to accept all reports at face value. A critical examination of the claims and the evidence can yield a richer picture of reality than has been presented by the literature so far.

The issue of whether court judgments can be enforced is important for a number of reasons, among which is its bearing on the relationship between the legal system and the economic system. Laws, courts and court judgments are part of the institutional framework within which economic reform is being carried out in China. Obviously, the rules of the game have to change. But the move from a hierarchically administered economy to a primarily market economy means more than just changing the content of the rules. It implies a whole new way of rule-making and rule-enforcing.

This article explores one particular way of making the rules mean something: the enforcement of a court decision that the implementation of a particular rule requires the performance of a particular act - typically, the delivery of money or goods.

Among the various classes of legal documents which have become publicly available in China in recent years, few are more interesting than the growing body of reported decisions by courts and other institutions. Usually resulting, directly or indirectly, from litigation or some similar process, these interpretative rulings and decided cases have appeared in increasing numbers in the nine years following the first publication of the Supreme People's Court's own gazette. Since then a number of general collections of judicial interpretations and abstracts of court decisions have been brought out, some of which pre-date the Cultural Revolution. The Supreme People's Court now supplements its gazette with periodical collections of reports of cases, and more specialized collections of interpretations and cases have been published to meet various specific needs, academic and professional.

Access to material of this kind on a larger scale than hitherto sheds light on various aspects of the Chinese legal system itself which for foreign observers were previously obscure. Moreover, although most of the cases and decisions which are published emanate from the higher levels of the legal hierarchy, they bring the reader closer both to the practical workings of the legal system and to the thought processes which guide it.

The question which inevitably arises is whether these newly available materials should be regarded as providing more than just a heightened awareness of the dynamics of Chinese society and its legal system. Outside China, the study of Chinese law is increasingly regarded not merely as a discipline for the description and analysis of a specialized category of Chinese institutions, but more importantly as a source of detailed prescriptive norms of the kind expected from legal systems in the world as a whole.

This article examines developments in the family law of post-Mao China. The expansion of the legal regime governing Chinese family life during the past 15 years has been extremely rapid and represents an important legal advance, although to some extent the developments are old wine in new bottles - a reconstruction in legislative form of pre-existing administrative norms already governing family life. In addition, the article necessarily considers a number of significant tensions or contradictions that have become apparent in PRC family law over the past decade or so.

At one level the post-Mao growth in the corpus of family law has a fairly clear meaning. The 1950 Marriage Law and the system of family law which it attempted to put into place were important elements in the generation of political support for the new regime. However, in the post-Mao era the rapid codification of family law has been in large part prompted by the leadership's concern to ensure stability, order and continuity in social life. In addition, the family has once more been installed as the basic unit of social life, a position enhanced by the declining social significance of the danwei or unit. The law has therefore been used to reshape the family in order to make it more consistent with the new economic and social orders being created in the era of reform. There is also a concern to strengthen the rights and interests of the socially vulnerable, and this too has influenced certain areas of family law.

The institutions of criminal law and their relation to human rights in the People's Republic of China are worth studying for a number of reasons. First, it is in the realm of criminal law and human rights discourse that much of the Chinese conception of law itself is worked out. Secondly, criminal law in China, like criminal law anywhere, carries with it a theory of social order and disorder that is worth looking at for its own sake. One of the challenges facing Chinese criminal law today is that of rejustifying itself in the face of the enormous social changes that have taken place since the beginning of economic reform and China's opening to the outside world in the late 1970s. Thirdly, as long as human rights remain a matter of international concern, one cannot ignore the institutions of punishment that govern one-fifth of the world's population. This article gives an overview of issues of criminal law and human rights as they affect Chinese society today.

The legal regime for foreign investment in the People's Republic of China over the past 15 years has reflected a basic tension between encouraging foreign business activities and maintaining state control over them. While China's policies may be viewed as attempts to pursue an independent path towards development, neo-classical and critical perspectives on the role of the state in economic development provide useful contexts within which to view the PRC's efforts at harnessing foreign investment in pursuit of economic growth. This article reviews the structure and performance of foreign investment law and policy in the People's Republic of China in the context of these alternative approaches to the role of the state in economic development.

Among the many extraordinary developments attendant to China's transition from the Maoist era, one of the most significant - both for China and the rest of the world - has been the growing participation of the f People's Republic of China (PRC) in the global community. Emerging from an isolation which was by turns self-imposed and externally enforced, the PRC has rapidly embraced a wide range of international T relations, including membership of most international organizations, in [ stark contrast to its situation before the late 1970s. For many reasons, this increasing involvement with other nations has necessitated far greater f attention to international law than was common during the Maoist period. At the level of public international law, many more treaties have f been concluded; with respect to international business, a burgeoning sector of China's domestic economy now depends on long-term foreign j investment fostered by protective regulations. Far-flung foreign trade and Chinese investments abroad have even forced the PRC government to f litigate actively as a defendant in foreign courts, a prospect almost unimaginable 20 years ago.