By Haiyan Lee
Reviewed by Paul Katz
MCLC Resource Center Publication (Copyright September, 2023)
Haiyan Lee. A Certain Justice: Toward An Ecology of the Chinese Legal Imagination Chicago: University of Chicago Press, 2023, xii + 352 pp. ISBN-13: 978-0-226-82524-3 (cloth) / ISBN-13: 978-0-226-82525-0 (paper) / ISBN-13: 978-0-226-82526-7 (e-book).
A Certain Justice: Toward An Ecology of the Chinese Legal Imagination represents a pioneering achievement in our understanding of Chinese legal culture as well as its significance in the context of judicial systems worldwide. Haiyan Lee has amassed and boldly explored an astonishing array of literature, ranging from the writings of Lu Xun 魯迅 (1881-1936) and Hannah Arendt (1906-1975) to the Cultural Revolution “model opera” (樣板戲) The White-Haired Girl (白毛女) and Hans Christian Andersen’s The Little Mermaid.
The main goal of the study is to present an overview of how Chinese forms of justice have been conceptualized and practiced from the dynastic era to the present day. Lee endeavors to achieve this goal by exploring texts that have largely been overlooked yet possess the potential to address significant philosophical questions concerning truth, freedom, humanity, etc., particularly literary works that shed light on justice’s place in the complex realities of human life. The author’s views have been profoundly molded by a comparative perspective resulting from her experiences as an immigrant academic as well as from he “enduring fascination” with American legal culture (ix).
The theoretical framework applied in A Certain Justice features a “tension-filled triune” formed by justice, law, and morality (2). A second triune involves the Chinese ideas of qing 情 (human feelings), fa 法 (the law of the land), and li 理 (cosmic order), which Lee posits as being roughly equivalent with customary, bureaucratic, and divine forms of law (4-5). However, the heart of her analysis lies in the concepts of “high” and “low” justice as organizing principles “to make sense of the political-legal culture of a nonliberal society” (in this case China; 7-8), with the former highlighting the “legitimacy and moral supremacy of the ruler” (achieved via penal law) and the latter “fair treatment” of individuals (during civil law procedures; social justice). One of the author’s main arguments stresses the “subsumption of low justice under high justice,” with high justice consisting of actions rulers deem to be justified. Moreover, in order to ensure the attainment of high justice, low justice may on occasion be curtailed, made partial, or otherwise modified (5, 21, 27).
A Certain Justice consists of six chapters. Chapter 1 treats high justice as seen in the spy thriller, a genre repeatedly lauded by Lee as the “romance of the state par excellence” (27, 33, 69). Such stories are said to encompass high justice because one goal of espionage is to undermine the state’s moral authority (39), but the theme of high justice does not always shine through in some of the works discussed. In one example, Mai Jia 麦家’s In the Dark (暗算)—about a top-secret intelligence unit—includes stories about the successful decoder Blind Abing who commits suicide after learning that his wife’s child is not his own, and a female mathematician known as “Clingy Huang” falling to her death in a squat toilet. Chapter 2 describes instances of low justice achieved by PRC citizens via illicit acts of resistance recounted in “stories of dissemblance and duplicity,” which the author labels “subaltern hypocrisy” (27, 72). There are also fascinating accounts of sexual hypocrisy by PRC officials (99, 102).
In chapter 3, the author examines forms of transitional justice as seen in two waves of political trials in post-1949 China: the mass trials of the 1950s-1960s (said to center on collective guilt and revolutionary high justice), and the trial of the Gang of Four and subsequent political trials (individual guilt and bureaucratic low justice). The ways in which such trials could feature both high and low justice is vividly depicted in the story of The Bloodstained Shirt (血衣)—about a widow seeking justice for her wronged husband—with the author stating that low justice could only be achieved for individuals whose cases were subordinated to the CCP’s high justice goals of strengthening socialism and Party rule (117, 119). The author also makes the important point that the Party’s inability to guarantee low justice can potentially undermine the legitimacy of its rule (143). Chapter 4 assesses forms of exceptional justice for Japanese and Nationalist “war criminals,” while also considering how their captivity could result in “profound ideological and identity transformations” (175), explored in depth in an “excursus” on brainwashing (177-186).
Chapters 5 and 6 extend the book’s scope in fascinating new directions. In the former chapter, Lee pays special attention to poetic justice as seen in the shift from socialist realism to postsocialist magical realism, which provides another means for high justice to thwart low justice (190, 218). One striking example is the venerable tale entitled “The Foolish Man Who Moved the Mountain” (愚公移山), retold by Mao Zedong as a story expressing the CCP’s ability to remove the peaks of imperialism and feudalism via the “superhuman strength and power of the collectivity” and the “magic of collective action” (195-198). The links between these lofty ideals and the idea of high justice are not entirely clear, however, which is also the case for the discussion of Amitav Ghosh’s work on climate change (201-203). This chapter is also noteworthy for broaching the idea of “compensatory justice” (mentioned only one time in the book)—namely, people’s justice and poetic justice (190).
Further modifications of the book’s original definitions are found in chapter 6, with high justice being extended into the realm of environmentalism and low justice expanded to include animal rights, with a “pragmatist approach to multispecies justice” that “stops short of asserting that all things exist equally” situated between the two (256-257; see also 29). The focus on justice is prominent in the author’s discussion of the violent order of the natural world (220-221), or the complex emotions resulting from the slaughter of animals at the Taipei Zoo during the Pacific War (242-243, 246, 251). The same cannot necessarily be said, however, for the inclusion of Yang Zhijun 杨志军’s 2005 novel The Tibetan Mastiff (藏獒), which covers themes such as courage, loyalty, pacification, and assimilation (234-239), while also portraying some mastiffs as able to “transcend their biological nature and act willfully like humans” (239). Here, the links between these moving tales and ideas of high or low justice are not fully explained. It is also interesting to note that, although this chapter contains a discussion of Yann Martel’s Life of Pi (259-260), it does not mention Ang Lee’s widely popular and award-winning 2012 film adaptation. (Lee’s 2007 film Lust, Caution [色戒], which did not do well in China but arguably counts high and low justice among its major themes, is cited on p. 67).
The book’s conclusion summarizes the author’s main argument—namely, that the Chinese legal imagination has been structured by a division of justice into high and low forms situated along a vertical axis “that render it opaque to those acculturated in a liberal state of law” (262). In addition, the author makes the thought-provoking claim that the vertical orientation of Chinese legal culture has resulted in its developing a highly inclusive nature, with all manner of actors (human and non-human alike) being able to “ply the highways and byways of justice” (284).
As is the case with any pioneering endeavor, A Certain Justice raises a number of points that merit further scrutiny. Apart from the issues briefly mentioned above, one might also consider the significance of religious beliefs and practices in both the Chinese legal imagination and judicial procedures. Despite occasional unfortunate instances of pejorative terms like “occult” and “superstition” (20-21, 23, 194, 302), the author clearly recognizes the privileged status that moral/substantive justice holds alongside (or even above) legal/procedural justice, including highly popular ideals such as retribution (報應; 23, 217). Lee does not closely investigate the place of the transcendent in the Chinese legal imagination, although she does observe that China’s traditional bureaucratic order could extend to the heavens and the underworld (3), that the imperial state’s legitimacy depended in part on the Mandate of Heaven (天命; 4), and that Chinese society has “relied heavily on the community and divinity foundations for the elaboration of its moral systems” (15-16). One cannot help but wonder whether further consideration of religion’s place in Chinese legal culture might help provide answers to some of the questions raised in the book. In chapter 2, for example, Lee asks “how low justice is attainable when law is largely absent or when laws (and policies that have the force of law) are the very source or instrument of injustice” (27). The author suggests that the answer is hypocrisy, but one might also argue that judicial rituals offered a legitimate means for people to pursue justice, including making an oath of innocence in a temple when accused of wrongdoing during disputes or in a court of law, or filing an underworld indictment against a plaintiff or defendant. Similarly, in chapter 6, the author raises the question of whether “low justice [can] be extended to where law does not reach without jeopardizing or clashing with high justice.” Again, one answer to this question might be judicial rituals, which were often tolerated by Chinese states (or Western/Asian authorities that ruled over Chinese people), despite the fact that they could be labeled “superstition.”
Judicial rites constituted an integral component of the Chinese judicial continuum, which also included, but was not limited to, informal mediation. While the author is aware of the “renewed interest among legal scholars in the tradition of mediation and other informal methods of settling dispute” (271), A Certain Justice tends to overlook ritual practice in favor of an almost exclusive focus on mediation, based in large part on research by Philip Huang. Accordingly, in her examination of Zhang Yimou 张艺谋’s 1992 film Qiuju Goes to Court (秋菊打官司), the author draws on Huang’s idea of a “moral vacuum” to emphasize the “total absence of an alternative center of moral authority in the village” due to the lack of “respected clan elders or local gentry” (276). This may be true for some areas of post-1949 China, but for most of Chinese history a village’s moral authority could also be found in its local temple(s). In short, both mediation and judicial rituals were part of the judicial continuum, which was more than “the imbrication between the earthly and otherworldly judicial universes” (20-21); instead, it formed a cogent cultural system for dispute resolution, including formal legal procedures, mediation, and rituals, acts that could be done in succession or at times in tandem, and were available to commoners, elites, and officials alike.
One might also point to the importance of Chinese religious literature in the spread of judicial ideals. While the author claims that “justice as fairness has always had a grassroots appeal, even if it is downplayed in written culture produced by the elites” (30), Chinese elites consistently composed religious texts pertaining to the ideology of justice (the ways in which the gods administer justice for people in this life and the next) that also merit consideration as works of literature, one prime example being “morality books” (善書). Both the ideology of justice and judicial rituals persist in many parts of the Sinophone world today, thereby giving pause to the assertion that as “Chinese society grows more affluent, stratified, and mobile, customary law, or whatever is left of it after the ravages of history, is increasingly inadequate in dealing with the frictions of social and commercial life” (6, 222, 302).
A Certain Justice adopts a comparative perspective that proves both highly stimulating and profoundly challenging. For example, the author is perfectly correct in stating that Chinese legal culture “has maintained a high degree of continuity . . . and has diverged widely from that of the modern liberal West” (2). (The term “liberal” appears four score and many times more in this study.) However, the assertion that such a culture “cannot come into focus unless it’s set against another, far more hegemonic culture of justice . . . one that frames the universal discourse of human rights and saturates our global mass culture” (x) constitutes more cause for concern. Regardless of whether or not justice as practiced in the “modern liberal West” is hegemonic or saturates mass culture worldwide, it should be (and has been) possible for scholars of Chinese legal culture to research this topic in its own right while fully appreciating the achievements of China’s judicial realm. Some of the author’s views may have been shaped by her concerns about “Orientalist” points of view (mentioned prominently on the book’s webpage), expressed in admonitions against a flawed “image of China as a land of Oriental despotism where law is at best window dressing and at worst an instrument of coercion and tyranny” (4) as well as “persistent Orientalist disparagement of China’s legal institutions and practices” that portray China as “a legal backwater” (187-188). The author seems particularly troubled by the fact that, despite the rise of China as a superpower, “its vision and practice of justice [continue to be] treated as a pale, floundering, and negligible sideshow to the legal drama of defending liberty and upholding human rights in the global north” (9). Here the author appears to be tilting at windmills, since, based on the annotation accompanying these assertions, such deplorable stereotypes tend to be more prevalent in popular works such as film and crime fiction, carrying little weight among the majority of scholars in the field of Chinese legal studies one assumes are the intended audience of the book.
Other comparisons appear a bit too broad, such as the following: “With the worldwide rise of authoritarianism and populism, it behooves us to take seriously the contestation or sidelining of liberal values and the trajectories of political-legal development in the global south that may well foreshadow what is to come for the global north” (10). Leaving aside the problems of populism, authoritarianism, and liberal values, neither the global south nor the global north possesses unified legal systems: those of the US, the UK, and Germany are hardly identical, which is also the case for those found in China, India, Indonesia, etc.
Finally, there are a few howlers, such as the claim on page 80 that “lying or dissemblance is not proscribed by the Ten Commandments and other religious canons” (in the King James Version of the Bible, the Ninth Commandment states “Thou shalt not bear false witness against thy neighbor”). In addition, the standard translation of the term for women drafted as Japanese military prostitutes during the Pacific War (慰安婦) is “comfort women,” not “comfortable women” (162), while using “medicine man” as a label for Tibetan practitioners (236) hardly seems appropriate given its history as a term of disparagement for America’s Indigenous peoples.
The above points in no way detract from A Certain Justice’s overall scholarly significance, however. By drawing on a vast and diverse body of textual evidence that allows us to better appreciate the vibrant diversity and unique contributions of Chinese justice to global legal cultures, Haiyan Lee has achieved conceptual breakthroughs with the potential to inspire future generations of scholars for years to come.
Paul R. Katz
Academia Sinica