I just finished reading Embedded Courts by Kwai Hang Ng and Xin He. (I’ve linked to the Cambridge Univ. Press website; if you log in from an academic institutions, you may find it’s available to you free.) I cannot recommend this superb book highly enough. Although it focuses just on courts (an important part of a legal system, but not of course all there is to it), its analyses of the way courts work are immensely valuable for understanding other parts of the legal system as well. The authors combine years of fieldwork with sophisticated theoretical insights, and present it all in an engaging style that is refreshingly free of pretentious jargon. (For the record, jargon absolutely has its place in professional discourse; I just object to its being used needlessly, and more to signal membership in a tribe than to communicate to the reader.)
Here’s a very brief summary: The book argues that Chinese courts essentially operate according to a bureaucratic, not legal, logic. In other words, the courts are structured to act in ways that satisfy various bureaucratic imperatives, of which getting the law right is one but far from the only or most important one. This is not a mistake or failing of the system; it’s just how the system operates. Think of the president of a modern American university with a top football team faced with a charge of sexual assault against a star player. Call me cynical, but my guess is that considerations of “what actually happened and what is the right thing to do” are pretty low priority items. Instead, the president has to figure out how to satisfy booster alumni, angry faculty, bitterly divided students, the Department of Education, the press, and the wider public. That is the job, mutatis mutandis, of a Chinese court as well.
I can’t possibly do justice to the book in this brief summary, so blame me and not the authors if it doesn’t excite you. It’s not just what they say but how they show it that makes the book so good. Seriously, if you read (or recommend to someone else) one book on Chinese law, this should be it. I can’t think of a better one out there. (To authors who are my friends and might be offended: maybe I haven’t read your book yet!)
One final musing: is there a similarly insightful book on the Chinese court system published in China? Sure, Ng (from Hong Kong) and He (of PRC origin) were able to get access that non-ethnic-Chinese scholars with non-Chinese passports could never have, although they by no means had an easy time of it and worked hard for the access they got. But mainland scholars living in the mainland should have even better access, and yet to the best of my knowledge there is no book in Chinese like this. (My knowledge is limited; I could easily have missed it. Suggestions welcome in the comments section.) If so, isn’t that kind of weird? We wouldn’t expect the best book on the US legal system — one that understood the gritty realities as well as the high-level theory — to be written by German or Japanese scholars. My tentative explanation would be tripartite: (1) courts still operate so secretively that the access mainland scholars can get is actually not much better than the access Ng and He got; (2) the academic training scholars get is still much better outside China (Ng has a PhD from the University of Chicago; He has a JSD from Stanford); and (3) political restrictions on academic freedom prevent scholars even from starting along the road that led Ng and He to this book (e.g., their previous work), let alone ending up at this destination.
In any case, congratulations to the authors. This book deserves a wide circulation.