Criminal Justice Review

The American and Chinese approaches to social control offer two fundamentally different philosophical and experiential perspectives. While the rights of the individual are of paramount importance in the United States, and an exceedingly active formalized legal system is responding to these needs, the Chinese have adopted a vastly different approach. The hallmark of Chinese social control is the preeminent position of society, or the social collective, and there is a marked aversion to formal law or any judicial system. The core of Chinese social control is based on Confucian social ethics which stress self-discipline and subordination to the family and to the State. Under Chairman Mao, Confucian principles were wedded to Marxist-Leninist ideology, but China resisted the bureaucratized model of the Soviet Union. Current social control practices include a strong reliance on mediation, massive legal education, and rigorous neighborhood organization strategies. In those instances where formalized court processes are employed, the Chinese have adopted a strategy that coincides with the perceived needs of their socialist system. Recent events in China indicate clearly that, while their informal style of social control is relatively effective, by no means has it eradicated all forms of deviance. The consequences of the Chinese style of socialism and its concomitant mandate of social responsibility infer a denigration of individual rights.

Since 1914, China has had legislation permitting the police to punish minor violations administratively, that is, without obtaining a judgment of guilt from a court; penalties include fines and short periods of detention. This article traces the development of this legislation from 1914 to the present, showing how the violations involved have reflected the concerns of the government of the time. It demonstrates that, even as police have been given the right to inflict harsher punishments, they have also been subjected to greater accountability and control.

In the United States, and in Western nations generally, interpretation of constitutional provisions and statutes is considered to be the essence of the judicial function. In the People's Republic of China, however, the authority and responsibility for such interpretation is vested in the Standing Committee of the National People's Congress, the supreme legislative body of the land. This interpretive process is little understood outside China, and frequently it is not understood by Chinese lawyers; legal materials generally are not as readily available to lawyers in China as they are to attorneys in Western legal systems. This essay explains how that process of interpretation works, using substantive law only to provide examples of the procedures in operation. The essay assumes that knowledge of this particular process is fully as important as, and much less available than, knowledge of the main areas of substantive Chinese law, and this is the situation which it seeks to alleviate.

The 1988 Term of the Supreme Court of the United States ended on July 3, 1989. There were important decisions in the areas of the Fourth Amendment and the right to counsel, and there were several forays into the less clearly demarcated waters of the right to a fair trial and sentence. Two death penalty cases resumed the preceding term's consideration of capital punishment for persons under the age of 18, and another dealt with imposition of the penalty upon mentally retarded offenders. The balance of the Court's criminal justice agenda included a wide array of issues such as double jeopardy, prisoners' rights, racketeering laws, habeas corpus, civil rights actions, and the First Amendment. Some of the cases in these categories are beyond the scope of the present survey, as is the term's major abortion case, Webster v. Reproductive Health Services, 109 S.Ct. 3040 (1989), which arose in the civil context.