Abstract
Based on a rare survey of criminal justice practitioners from one large coastal province in China, this study provides an application of Bourdieusian sociology of juridical practice in Chinese criminal courts. We test whether and how criminal trial outcomes can be predicted by using variables measuring various forms of Bourdieusian capital. We found that measurements based on self-reported efficacy of legal representation practices during the pretrial and trail stages (as activated judicial capital), more so than those indicating respondents’ personal and professional statuses (either inherited or acquired capital), yield greater and more consistent impact on the trial outcomes. Implications for future theory, methodology and Chinese rule of law reform are discussed.
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Notes
Discussion on ‘habitus’ is abbreviated here due to the focus on “capital” in this paper. It’s worth mentioning of a comparison made by Bourdieu [6:87] where he clarifies the differences between “habitus” and “habit” by stating that “habit is spontaneously regarded as repetitive, mechanical, automatic, reproductive rather than productive” while “habitus is something powerfully generative.”
This work was supported by the John D. and Catherine T. MacArthur Foundation (08-92318-000-GSS). The content of this article is solely the responsibility of the author and does not necessarily represent the official view of the Foundation.
Very high survey participation rates are common in both juvenile and adult studies conducted in China [27, 28]. The cultural norm of conformity continues to favor the researchers with regard to survey data collection. Potential bias in survey responses remains an interesting question to be answered.
Cities A, B, and I are the three largest in the Province. They have the highest GDP per capita measures, the most registered lawyers and, the most favorable lawyer density ratios. These are also the cities where all law schools in the province are located. It could be argued that the results from the study may be more representative of the efficacy of legal representation in large city criminal courts.
With China’s fast urbanization and economic development in the last three decades, massive number of rural peasants has migrated to the cities where they now occupy the bottom of the social stratification system. This migration has led to increased inequality and conflicts [29]. The so-called migrant workers have been perceived as an unstable if not dangerous social class, threatening social stability and becoming a target for crime control and prevention.
No multicollinearity problem was detected in any of the statistical models included. All VIF scores are below 4.0 [10].
References
Biddulph, S. (2005). Mapping legal change in the context of reforms to Chinese police powers. In J. Gillespie & P. Nicholson (Eds.), Asian socialism and legal change: the dynamics of Vietnamese and Chinese reform (pp. 212–238). Canberra: ACT: Asian Pacific Press at the Australian National University.
Bourdieu, P. (1971). Cultural reproduction and social reproduction. In R. Brown (Ed.), Knowledge, education and cultural change (pp. 71–112). London: Tavistock.
Bourdieu, P. (1977). Outline of a theory of practice. Cambridge: Cambridge University Press.
Bourdieu, P. (1987). The force of law: toward a sociology of the juridical field. Hastings Law Journal, 38, 805–853. Translated by Richard Terdiman.
Bourdieu, P. (1989). Social space and symbolic power. Sociological Theory, 7(1), 14–25.
Bourdieu, P. (1993). Sociology in question (translated by Richard Nice). London: Sage Publications.
Bourdieu, P. (1993). The field of cultural production. Cambridge: Polity Press.
Chan, J. (2004). Using Pierre Bourdieu’s framework for understanding police culture. Droit et Societe, 56–57, 327–346.
Dezalay, Y., & Madsen, M. R. (2012). The force of law and lawyers: pierre bourdieu and the reflective sociology of law. Annual Review of Law and Social Science, 8, 433–452.
Fisher, J. E., & Mason, R. L. (1981). The analysis of multicollinear data in criminology. In J. A. Fox (Ed.), Methods in quantitative criminology (pp. 99–125). New York: Academic.
Halliday, T. C., & Liu, S. (2007). Birth of a liberal moment? Looking through a one-way mirror at lawyers defense of criminal defendants in China. In T. C. Halliday, L. Karpik, & M. M. Feeley (Eds.), Fighting for political freedom: comparative studies of the legal complex and political liberalism (pp. 65–107). Oxford: Hart Publishing.
He, N. (2014). Chinese criminal trials: a comprehensive empirical inquiry. New York: Springer.
Hou, S., & Keith, R. (2011). The defense lawyer in the scales of Chinese criminal justice. Journal of Contemporary China, 20, 379–395.
Liang, B., & He, N. (2014). Criminal defense in Chinese courtroom: an empirical inquiry. International Journal of Offender Therapy and Comparative Criminology, 58(10), 1230–1252.
Liang, B., Lu, H. and He, N. (2015). Political embeddedness and its impact on Chinese criminal defense lawyers’ professional practice: an empirical testing. European Journal on Criminal Policy and Research (forthcoming).
Liu, S., & Halliday, T. C. (2011). Political liberalism and political embeddedness: understanding politics in the work of Chinese criminal defense lawyers. Law & Society Review, 45, 831–864.
Lu, H., & Drass, K. A. (2002). Transience and the disposition of theft cases in China. Justice Quarterly, 19, 69–96.
Lu, H., & Gunnison, E. (2003). Power, corruption, and the legal process in China. International Criminal Justice Review, 13, 28–49.
Lu, H., & Miethe, T. D. (2002). Legal representation and criminal processing in China. British Journal of Criminology, 42, 267–280.
Lubman, S. B. (2003). The study of Chinese law in the United States: reflections on the past and concerns about the future. Washington University Global Studies Law Review, 2, 1–35.
Luhmann, N. (2004). Law as a social system. Oxford: Oxford University Press.
Lynch, E. M. (2011). China’s rule of law mirage: the regression of the legal profession since the adoption of the 2007 Lawyers Law. The George Washington International Law Review, 42, 535–585.
Michelson, E. (2006). The practice of law as an obstacle to justice: Chinese lawyers at work. Law & Society Review, 40(1), 1–38.
Michelson, E. (2007). Lawyers, political embeddedness, and institutional continuity in China’s transition from socialism. American Journal of Sociology, 113(2), 352–414.
Michelson, E. (2008). Dear Lawyer Bao: everyday problems, legal advice, and state power in China. Social Problems, 55(1), 43–71.
Van Krieken, R. (2006). Law’s autonomy in action: anthropology and history in court. Social & Legal Studies, 15, 574–590.
Wang, J., He, N., & Yu, O. (2014). Research on the recognition of Chinese traditional values. Journal of Anhui Agricultural University (Social Science Edition), 23(3), 42–48.
Webb, V. J., Ren, L., & Marshall, I. H. (2011). A comparative study of youth gangs in China and the United States definition, offending, and victimization. International Criminal Justice Review, 21(3), 225–242.
Wu, X. (2009). Household registration, social exclusion, and rural migrants in cities. In G. Wu & H. Lansdowne (Eds.), Socialist China, capitalist China: social tension and political adaptation under economic globalization (pp. 29–54). New York: Routledge.
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He, N. Legal representation and trial outcomes: a bourdieusian analysis of chinese criminal court practices. Crime Law Soc Change 66, 491–506 (2016). https://doi.org/10.1007/s10611-016-9639-1
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DOI: https://doi.org/10.1007/s10611-016-9639-1