Out of the Pan and into the Fire: Well-Intentioned But Misguided Recommendations to Eliminate All Forms of Administrative Detention in China

115 Pages Posted: 20 Apr 2004

See all articles by Randall Peerenboom

Randall Peerenboom

La Trobe University - Faculty of Law and Management; Oxford University - Centre for Socio-Legal Studies

Abstract

One of the most heavily criticized aspects of the PRC legal system has been the use and abuse of various forms of administrative detention. Many legal scholars and human rights activists, including former United Nations High Commissioner for Human Rights Mary Robinson, have recommended that China eliminate all or some of these forms of administrative detention. I argue that while reforms are clearly needed, we need to consider the purposes of administrative detention and the particular problems that have arisen in association with each of its various forms, and then decide whether eliminating detention will help or hurt those currently subject to it.

Upon closer examination, eliminating all forms of detention is likely to hurt the vast majority of those the reformers are seeking to help. Most critics of administrative detention are equally if not more critical of the criminal law system. And yet eliminating administrative detention will push many marginal offenders into the harsh and decidedly unfriendly penal system, force them to live with hardened criminals, and result in their being forever stigmatized as convicts.

I also take up the question of what, if anything, the many serious problems in the criminal law and administrative detention systems tell us about legal reforms in China more generally and the efforts to implement some form of rule of law. Undoubtedly inconsistent with rule of law in many ways, especially with respect to how they are implemented, the criminal law system and various forms of administrative detention are often portrayed as representative of China's failure to establish rule of law or particularly telling in terms of the deficiencies of the legal system as a whole. But are they? I suggest not. What distinguishes criminal law from other areas of law is that there is little support for criminal law reforms on the part of the public because the vast majority of the citizenry sees such reforms as harming rather than furthering their interests.

Consistent with the general pattern elsewhere, modernization, industrialization, urbanization and the turn to capitalism have led to spiraling crime rates. China's weak legal institutions have been unable to stand up to the combined pressure coming from an angry public demanding heavy punishments to deter criminals, and a political regime seeking to shore up its legitimacy by pandering to the public's appetite for vengeance. Cultural preferences for social stability, a tendency to favor the interest of the group over the individual, and the lack of a strong tradition of individual rights further undermine the efforts in recent years to strengthen the criminal justice system and better protect the rights of the accused.

Finally, rather than simply criticizing the current system for its shortcomings, I suggest reforms to the administrative detention system.

Keywords: administrative detention, criminal law reform in China

Suggested Citation

Peerenboom, Randall, Out of the Pan and into the Fire: Well-Intentioned But Misguided Recommendations to Eliminate All Forms of Administrative Detention in China. Northwestern University Law Review, Vol. 98, No. 3, p. 991, 2004. Available at SSRN: https://ssrn.com/abstract=530723

Randall Peerenboom (Contact Author)

La Trobe University - Faculty of Law and Management ( email )

Department of Economics and Finance
Victoria 3552, 3086
Australia

Oxford University - Centre for Socio-Legal Studies

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

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