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The post-Mao era has almost universally been called one of construction of China’s legal system. But while great changes have taken place in China’s public order and dispute resolution institutions, other things have changed little.
Donald Clarke argues that the scholarly community has accumulated over the past four decades several observations about China’s order maintenance institutions that are increasingly difficult to explain using the conventional vocabulary and concepts of legality. China has been building a system for the maintenance of order and the political primacy of the Chinese Communist Party, not for the delivery of justice. He urges that we should not make ethnocentric assumptions about how various institutions in China — or indeed in any society with which we are not familiar — do or should operate merely based on similarity of (translated) name or apparent isomorphism. If too many observations don’t fit the model, then it’s time to change the model, not to dismiss the observations.
Donald Clarke is a specialist in the law of the People’s Republic of China, focusing particularly on corporate governance, Chinese legal institutions and the legal issues presented by China’s economic reforms.