Vol. 10 No. 7 (July 2000) pp. 446-449.

CHINESE JUSTICE, THE FICTION: LAW AND LITERATURE IN MODERN CHINA by Jeffrey C. Kinkley. Stanford, California: Stanford University Press, 2000. 497 pp. Cloth $69.50.

Reviewed by Timothy J. O'Neill, Department of Political Science, Southwestern University.

What can "crime fiction," with its sensational stories of rogue cops, cynical private dicks, conniving lawyers, and depraved criminals, tell us about law and politics in today's People's Republic of China? According to Jeffrey Kinkley, it tells much. Crime fiction may be a popular genre appealing to our interest in the sensational, but it is also a mirror of what a society sees itself to be and, perhaps less clearly, what it aspires to be. Kinkley is confident that Chinese crime fiction is a "metonym for [not only all] modern Chinese literature" but also a "bellwether for the modern Chinese legal system" (p. 16).

The book thus aspires to be more than a literary treatment of what a Western reader might call crime, detective, mystery, or police dramas. It wants to be more than just "law IN literature," where literary treatments of the police, judges, prosecutors, attorneys, and detectives reflect genre conventions and stylistic creativity. The book also explores "law AS literature," where literature serves to support or challenge the legal status quo, seeking to mold elite and popular beliefs and behaviors.

The "law IN literature" theme centers the book on the conflicting impulses toward paternalism and adversarialism in Chinese literature and culture. Traditionally, the Chinese have depended upon police and judges to ensure public order. There were no truly adversarial hearings, no juries, and no complete publication of laws and rules. To this day the police settle more cases administratively than do criminal courts. Both judges and police are willing instruments of state power. The model of the wise and virtuous judge in contemporary Chinese crime fiction and society, hardening back to Judge Bao and to the Confucian rule of the righteous man, wars against the emerging model of public and predictable rules and procedures, the rule of law (p. 62). These models coexist with another "traditional dualism" afflicting post-Mao China: the assumption that moral and legal codes differ for superior and inferior members of society (p. 111).

The failure of law and legal institutions to earn high status in imperial China, Kinkley points out, reflected China's studied ambivalence about law and its perceived weaknesses: the law's orientation to punishment rather than rehabilitation, its stress on conflict in a society revering though seldom experiencing harmony, its emphasis on winning in a society where Confucian virtues taught obedience to roles and rites, not self-promotion. In brief, law was deemed insufficient because of its alleged insensitivity to QING, "human feeling" (p. 119). A recurrent motif in imperial era legal stories is the lawsuit as injury, launched against innocent victims

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while ineffective against the privileged and powerful. The victim must turn to a good judge for protection FROM the law (p. 148). The notion of law as a semi-autonomous force shielding the vulnerable from the depravations of the powerful was untenable, at least late in the imperial era. Only the "truly exceptional person" (p. 135), fortunate enough to hold high office, can impose a just order.

Chinese crime fiction's indigenous roots tap into a rich reservoir of imperial crime fiction stories; the best remembered being those by and about the near legendary Judge Bao. However, China also eagerly imported Western crime fiction genres during its "Golden Age" (1900-1949). Imitation followed by quick differentiation became the pattern. The model for adaptation is the Frenchman Maurice Leblanc's Arsene Lupin stories, themselves an adaptation of and challenge to British Arthur Conan Doyle's Sherlock Holmes thrillers. Leblanc imitated but challenged Doyle's Holmes, acknowledging the success of the opponent (Holmes specifically, the British Empire broadly) while asserting his own national superiority (French culture) (pp. 174ff.). So too China's Doyle (Huo Sang) and its Leblanc (Lu Ping) imitated the Western genre but also challenged it. They sought to create crime fiction with "uniquely Chinese characteristics."

China's "Golden Age" crime fiction authors were part of broader movements in China's literature. The May Fourth and New Culture movements, with their stress on language reform, use of the modern vernacular, rejection of Confucian norms and classic literary forms, their championing of women liberation, and the proud assertion of Chinese nationalism, sought to transform feudal China into a modern one (p. 194). In common with these broader literary and cultural movements, crime fiction authors adapted what they saw good in the West while rejecting Western materialism generally and veneration of courts and police specifically. They maintained the usual Chinese suspicions about the capacity of the law to provide genuine justice but also rejected older traditions of Confucian rites and morals. Resentment at the power of the West did not efface their anger at China's feudal past.

How has crime fiction fared under Communist China? Kinkley's answer makes the "law AS literature" theme explicit. Mao banned genuine crime fiction, replacing it with "anti-counterrevolutionary melodramas" about class enemies since private crime, an artifact of bourgeois societies, could not exist in a people's democracy (p. 255). Deng Xiaoping used crime fiction to popularized legal, political and economic changes during his "Four Modernizations" campaign. A world of class enemies, counterrevolutionaries, and foreign spies is transformed into "Hong Kong" - a society bedeviled by personal sins of greed, lust, and deception (p. 55).

Although it would soon lost a competition with journalistic coverage of crime and law, the years 1984-1986 were the "heyday of PRC crime fiction" (p. 283). Familiar patterns emerged. The Ministry of Public Security saw in the now officially sanctioned "legal system literature" (p. 243) an apt instrument to propagandize its interests. Police officers and prosecutors used crime fiction to educate the public about the role and rule of law, usually with an eye towards presenting themselves in the best light. The Ministry banned imported mysteries, purportedly to protect the public from decadent Western thrillers. Actually, it guaranteed that "healthy" domestic stories, with their "dedicated socialist Chinese

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cops," faced no competition from "bourgeois foreign detectives" (p. 297). This also ensured that the Ministry had cornered the market for its own published-for-profit stories.

Kinkley concludes that crime fiction in China is very much alive (p. 317). The evolving genre is slowly shifting from an attachment to a paternalistic legal system to an interest in a "truly adversarial" system. Even lawyers have acquired celebrity status in fiction and, to a far lesser extent, in reality. By the late 1980s, Chinese crime fiction authors were sufficiently confidant to attack not only the inadequacy of the police and courts, but also formal and informal structures of political power (party cadre, neighborhood committees, and work units), and social attitudes (pp. 338-339). All of this promises a push toward a more open and independent legal process.

The 1990s appear in the book's last two pages. Kinkley insists that there is now "a boom in legal actions, notably liability lawsuits and proceedings against local public security bureaus and land-use offices.. Adversarial legal consciousness rode in with the new consumerism and a new sense of confidence in the individual's ability to withstand government retaliation. Law cases became popular culture" (p. 358). This is overly optimistic. Things are better, but only as a matter of degree. The systematic harassment of dissidents, the crackdown on the Falun Gong, even Beijing's campaign to win the Olympics in 2000, which entailed the wholesale deportation of homeless and other "undesirable" people, attest to the legal system's continued service to state power. Lawsuits are more frequent, but neither the state nor the litigants are enthralled with litigation. Official campaigns to discourage formal use of the courts, coupled with newspaper reports about corrupt courts and abusive police, indicate that not all is well.

Kinkley's book is a fascinating meld of history, literature, and law. Unfortunately it does not cohere well. It lacks a strong narrative line, with too many sidebar excursions into post-modern literary criticism or lengthy plot summaries. A good editor should have taken red pen to Kinkley's literary conceits and self-conscious mannerisms.

The book has redeeming virtues. Its use of the law and literature model permits the uninformed reader to grasp how law IN literature and law AS literature have special significance in the Chinese context. Perhaps more than in any Western society, Chinese crime fiction has served as a role much greater than the sensational depictions of crime and the legal system. It has served as a state instrument to educate the populace in appropriate beliefs and practices, it has served critics of the state to challenge how law is actually practiced in China, and it has itself become a vehicle for legal lore and precedent. Since China lacks a history of case law, crime fiction serves as a surrogate, conveying decisions and principles of past law-appliers to inform and direct current ones (p. 159). Ironically, legal depictions in literary works are vehicles to communicate cases in a system that rejects case law as a mode for judicial reasoning and discipline.

CHINESE JUSTICE may be too detailed for the casual reader and too simplistic in its grasp of law and politics for the specialist. Nonetheless, the reader may learn something important about how past patterns repeat themselves in contemporary Chinese politics and literature. And how can one complain about a book with "factoids" such as that the formulaic American cop show, "Hunter," was one of

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the most popular shows on Chinese TV in 1989 (p. 363, n. 17)?