Tuesday, May 5, 2009

Howson on Xu, Trial of Modernity: Judicial Reform in Early Twentieth-Century China, 1901-37

Nicholas Calcina Howson, Michigan Law School, has posted a Review of Xiaoqun Xu, Trial of Modernity: Judicial Reform in Early Twentieth-Century China, 1901-37. It appears in the American Journal of Comparative Law (Spring 2009). The abstract is brief, so here is an excerpt from the introduction:

Professor Xu Xiaoqun reminds us that [contemporary] struggles [over law and politics in China] have a much longer pedigree, stretching back to the end of the nineteenth century and China’s first fraught encounter with “the West” and one idea of “modernity.” Further developing his own work, as well as the prior scholarship of Alison Conner, Kathryn Bernhardt and Philip Huang, and others, Xu describes in great detail attempts at judicial “reform” and “modernization” in the critical late Qing and early Republican period of 1901-1937. Why “critical?” Because this is the period when China’s last imperial dynasty fell and a new governance system was mooted, and when China attempted the creation of political and legal institutions to underpin a “modern” and democratic polity under some notion of the “rule of law.” In his personal introduction, Xu points to the importance of that prior effort at legal construction for today’s struggle in contemporary China, noting correctly that “[t]he project of striving for judicial modernity in Republican China and its ramifications offer clues to, and help an understanding of, the achievements and limitations in the similar project in post-Mao China, since many parallels between the two can be found” (p. xii). How very true, and vital, this introductory comment seems when we compare He Weifang’s and Xiao Han’s arguments on judicial independence, uttered in 2008, and the first Republican Minister of Justice’s articulated reform aims from 1912: “Judicial independence is the key element of a constitutional state and the spirit of a country based on the rule of law; yet judicial independence can stand only after complete institutions are built” (p. 59). In effect, and perhaps rather sadly, the conversation in the near-century between 1912 and 2008 has changed very little—and it is that conversation which Xu Xiaoqun unpacks with immense skill in this minutely-researched new book.
The full review is here, and the book is here.