A great deal of discussion about freedom in the People?s Republic of China has proceeded on certain assumptions about the role of the state and about law's place in helping define it. At the heart of these assumptions is the idea that the cause of freedom in China will best be advanced through the state's retrenchment and a concomitant ceding of power to non–state actors, particularly with respect to economic and social matters. This notion is perhaps most obvious in calls for the promotion of greater economic freedom via both the "privatization" of state– owned enterprise and an increasing reliance on market forces, but it also informs the view that such measures are or soon will be leading to a marked growth in political freedom. And it undergirds the conviction of most observers that what is termed the rise of civil society will perforce enhance personal freedom in China. As the noted Chinese scholar Liu Junning observed in a recent essay extolling Hayek, "almost all of those who shape public opinion in China are liberals [as] classical liberalism now dominates China?s intellectual landscape."
Law occupies a prominent position in this vision, being increasingly seen in both academic and policy circles as critical to the attainment for Chinese of fuller economic, political, and social freedoms. In part, the prominence accorded law is attributable to its perceived potential, however imperfectly realized to date in the PRC, to facilitate the above described transfer of power from state to society by limiting the spheres of life over which the former has authority and providing constraints as to the manner in which such authority is to be exercised. No less importantly, law is extolled for the vital role it has to play, once the state has receded, in establishing the proverbial "level playing field" on which a new society is to be grounded. In contrast to the avowedly political and highly particularistic manner in which the Chinese state historically reached into citizens' lives, law is commended for being facilitative, rather than determinative, providing a neutral framework through which citizens, each endowed with the same rights and each entitled to invoke the uniform procedural protection that formal adjudication is intended to provide, may work things out for themselves.
The government of the People's Republic of China has become increasingly concerned with its serious environmental problems over the past decade. One study suggests that as of the mid 1990's, urban air and water pollution alone cost the Chinese economy US $32.3 billion annually in premature deaths, morbidity, restricted activity, chronic bronchitis and other heath effects, which is equal to more than 9 percent of Gross National Product. That study estimates that 110,000 premature deaths occur each year, primarily in rural areas, as a result of indoor air pollution. General assessments of China's environmental problems run a range from the alarmist to the cautionary, but all agree that the problems are very serious.
In response, the Chinese government has taken a number of important and innovative policy steps to improve the situation. China was the first country to pass a national Agenda 21 policy. The PRC first established a leadership group on the environment under the State Council in 1974, and has repeatedly strengthened its institutional commitment to the environment since then. In 1998 this culminated in the creation of the ministerial–level State Environmental Protection Administration (SEPA) out of the former National Environmental Protection Agency (NEPA). The concern for environmental protection is now shown in five–year plans and through the overhaul and strengthening of environmental laws. Recent years have also seen the initiation of high profile environmental campaigns, such as that restricting the use of leaded gasoline in large cities and that promoting reforestation in the aftermath of the Yangzi River floods of 1998.
Yet the Chinese state has also been plagued with problems in implementing and enforcing its environmental policies, especially in rural areas. Serious local environmental abuse regularly occurs, especially where there are overpowering economic incentives to exploit the environment for immediate gain — it is not uncommon, for example, to see people causing serious erosion by opening steep slopes (beyond the 25–degree legal maximum) to agriculture in poor areas, or losing windbreaks by illegally harvesting roadside trees for firewood. Large, state–owned enterprises, often utilizing antiquated equipment, collective enterprises, which often create income for local governments (including street committees in urban areas) and township–village enterprises, which may lack adequate funds for clean production, are also all often polluting.
This article reports the initial results of a collaborative project on the successes and failures of environmental policy implementation in Anqing, a small city and its rural hinterland on the Yangzi River in southern Anhui province. Our goal has been to learn when and how local citizens become environmentally responsible, and to draw appropriate lessons for policy. This includes two broad topics: First, we show how citizens receive basic environmental knowledge through schools, the media, local meetings, or personal experience (such as health problems). Specifically, the sections that follow examine the hypotheses that environmental awareness comes from the experience of environmental problems, from environmental education, or from increased wealth. Second, we consider whether people are able to act on that knowledge through their economic choices or their political and legal options. We discuss in particular the roles of recent legal reforms and local elections.
American scholars and policy makers concerned with legal development in the People's Republic of China share a deep faith in the value of China developing a legal profession that operates as we would like to think our own does. Indeed, this idea is so deeply ingrained that it is rarely broken out for critical examination, but instead is treated as an obvious good, the attainment of which is essentially a matter of time. Virtually all such observers seem to assume that lawyers, whether out of idealism or self–interest or some blend thereof, will prove to be a principal force leading the PRC toward the rule of law and a market economy, while some go so far as to treat the development of an indigenous legal profession as crucial to the promotion in China of a more liberal polity.
The hidden assumptions regarding the Chinese legal profession found in both US academic writing and policy papers warrant a scrutiny they have yet to receive here or abroad. Lurking not too far underneath the surface of such portrayals are further assumptions about the inexorability of convergence along a common path, remarkably (surprise) similar to our own. Unexamined, such assumptions run the risk of leaving us with an impoverished understanding not only of the role that the emerging legal profession is playing in China, but also of both the complexity of legal development there more broadly and the limits of the ideology of professionalism in law. This, in turn, may generate unwarranted expectations on our part as to the manner in which change may come in China while reinforcing the inflated sense that far too many of us in the American legal world have of our own profession's historic importance.
This essay consists of three parts. After a brief discussion of the manner in which the PRC?s legal profession has been portrayed, Part One endeavors to depict, in more balanced terms, its growth over the past twenty years and its current situation, drawing in part on a series of interviews I conducted among Chinese practitioners between 1993 and 2000, as well as more conventional research sources. Part Two then seeks to explain why scholars and policy makers, particularly in the United States, have so misunderstood the development of the Chinese legal profession, suggesting that the problem may have as much to do with their appreciation of their own legal profession as with the difficulties of comprehending China's. The final part of the paper offers further thoughts regarding the challenges that we need to confront in thinking about the place of lawyers and legal development in the PRC.
As the People?s Republic of China (PRC or China) seeks to use law to address environmental problems, it faces daunting challenges, in terms both of the magnitude of environmental degradation it is experiencing and the capacity of its legal institutions. Pollution levels in the major cities in the PRC are among the highest on earth. Epidemiological studies indicate that the concentration of airborne particulates is two to five times the maximum level deemed acceptable by the World Health Organization. A noted World Bank study based on "conservative" assumptions estimates that as of the mid–1990s "urban air pollution costs the Chinese economy US$32.3 billion annually in premature deaths, morbidity, restricted activity, chronic bronchitis, and other heath effects." And new scholarly work suggests that the "health impacts fall disproportionately on women and children."
China?s lawmakers have not ignored these problems. The PRC has in recent years sought to enlist the law to address its environmental ills. In 1995 and then again in 2000, China undertook significant revisions of its principal air pollution law, while throughout the decade of the 1990s it promulgated discrete measures concerning coal production, acid rain, and associated matters. To date, these legal changes have at best had a minor impact on the Chinese environment, but as we know from Bruce Ackerman and William Hassler?s classic study of the making of air pollution law in the United States, "Clean Coal/Dirty Air," even in highly–developed legal systems, efforts through law to address such issues pose massive challenges.
This article examines the 1995 revision of the Air Pollution Prevention and Control Law (the 1995 APPCL). The struggles attending that revision warrant our attention not only because of the gravity of China?s air pollution, but for the revealing window they provide onto Chinese legislative development more generally. Through it, we can better understand the inner workings of what is, under the Chinese constitution, the supreme organ of state, the National People's Congress (NPC); the interface of the NPC with other organs of state, national and sub–national; and ultimately, the relationship of the Chinese state to its people. This has much to tell us about the particular limitations that prevented the 1995 APPCL from achieving more, the difficulties confronting overall efforts to deploy law to improve the Chinese environment, the growing politicization of environmental matters, and the challenges that the Chinese state faces as it attempts both to represent popular interest in more transparent governmental institutions and also to deepen its engagement in the international community as it prepares to accede to the World Trade Organization.
The Chinese have a long–standing tradition of using history to comment upon contemporary events. This article attempts to advance our understanding of the formal criminal justice process in late imperial China by reconstructing from archival materials and analyzing one of the most celebrated criminal cases in Chinese history — that of Yang Nai–wu and Hsiao–pai–ts'ai. It is a sign of the state of our explorations of the Chinese legal tradition that no Western scholar has ever written about the case, that no Chinese scholar has produced a definitive account of it and its overall significance, and that no scholar, Chinese or foreign, has yet charted in meaningful and explicated detail the full course of any imperial Chinese case that traversed the entire formal criminal justice system from the level of the district magistrate to the highest reaches of the imperial government...In addition, fluid had started to seep into the corpse's eyes and ears, further complicating the autopsy laid out in Hsi-yuan lu, the classic Chinese coroner's manual... In his memorial, Pien Pao-ch'uan did not restrict his criticism to Yang Ch'ang-chun and Hu Jui-Ian...