¹ This review article does not deal with problems of periodization or of holistic analysis. Nor does it deal with what happens to the Chinese criminal process during times of major social disruption, such as the Great Leap of the late 1950's or the Cultural Revolution of recent years.

² Members of the bourgeoisie, for example, tend in like cases to be treated more harsh, ly as suspects and defendants than do members of the peasantry or proletariat.

³ On these points and others, see Lung-sheng, Tao, “The Criminal Law of Communist China,” Cornell Law Quarterly, LII (Fall 1966), 43–68Google Scholar; Fushun, Lin, “Communist China's Emerging Fundamentals of Criminal Law,” Amerian Journal of Comparative Law, XIII (Winter 1964), 80–93Google Scholar; McAleavy, Henry, “The People's Courts in Communist China,” American Journal of Comparative Law, xi (Winter 1962), 52–65CrossRefGoogle Scholar; Michael, Franz, “The Role of Law in Traditional, Nationalist and Communist China,” China Quarterly, xix (January-March 1962), 124CrossRefGoogle Scholar–48; Buxbaum, David C., “Preliminary Trends in the Development of Legal Institutions of Communist China and the Nature of the Criminal Law,” International and Comparative Law Quarterly, xi (January 1962), 1–30CrossRefGoogle Scholar; , Buxbaum, “Horizontal and Vertical Influences Upon the Substantive Criminal Law in China: Some Preliminary Observations,” Osteuropa-Recht, x (March 1964), 31–51Google Scholar; and Blaustein, Albert P., ed., Fundamental Legal Documents of Communist China (South Hacken-sack 1962), ix-xxixGoogle Scholar. For an intelligent account of the experiences of two Americans with the Chinese criminal process in the early 1950's, see , Allyn and Rickett, Adele, Prisoners of Liberation (New York 1957Google Scholar).

⁴ Skolnick, Jerome H., Justice Without Trial (New York 1966Google Scholar), 8. Professor Skolnick, a widely recognized authority on the criminal process in the United States, is an associate professor in the Department of Sociology and a Research Associate of the Center for Studies in Criminal Justice at the University of Chicago. My approaches in this review article reflect a substantial intellectual debt to Professor Skolnick's work.

⁵ Although it is not here appropriate to discuss these differences at great length, the subtlety of the differences can be indicated by a brief and limited comment on Professor Fuller's, Lon L. approach, which is set out in his “Collective Bargaining and the Arbitrator,” Wisconsin Law Review (January 1963), 3–46Google Scholar, esp. 18–42.

Fuller argues, in part, that the kinds of questions that can be solved by adjudication are intrinsically limited. Judicial institutions are peculiarly unsuited to deciding questions involving “apportionment,” polycentric problems in which, as in a spider web, if one pulls a strand here “a complex pattern of adjustments runs through the whole web.” Polycentric problems are typically those before administrative agencies.

The sorts of problems amenable to judicial action are (1) “more-or-less” issues, where “all of the possible decisions may be represented within a single dimension,” such as tort cases where an award can range from zero to x dollars; and (2) “yes-or-no” issues “between parties with opposed interests, no other interests being directly affected by the outcome.” While Fuller does not say that courts should never try to resolve poly-centric problems, he tends to feel that courts should be very hesitant to do so since, given “the procedural restraints normally surrounding judicial office,” the courts should not risk undermining their institutional effectiveness and authority by recklessly venturing to do what they by nature are not well constituted to do.

I have two related reservations to Fuller's approach, which at times seems perilously close to a dichotomous approach to adjudicative and administrative decision-making. First, interests other than those of the parties directly involved are always affected in judicial, as well as in administrative, determinations. Judicial decisions, after all, are not simply relevant to the parties immediately before the court; they also act as precedents. In so far as one believes that in judicial decisions the impact of the decision should be limited to the parties before the court, one is faced with the bizarre result that appellate decisions, which by their nature have a broader impact than those of courts of first instance, are in some way less judicial than the latter. To point out, legalistically, that other parties are not “directly affected by the outcome,” while true in a formal sense, presumably may be of little significance in fact.

Second, many, and probably all, issues are more or less polycentric. It is convention, based upon the consensus that provides the foundation for judicial institutions, which allows us to consider particular issuesas if their ramifications were not infinite. But every issue decided in court is like a pebble dropped into a pond; it creates waves that affect, infinitesimally perhaps, all waters within the pond's expanse. Again, the implicitly polycentric nature of all issues often is clearest at the appellate level, particularly in important constitutional cases, where the range of considerations is endlessly complex, implicitly if not explicitly involving basic decisions on how society will allocate its resources (e.g., Brown v. Board of Education and the whole line of recent cases affecting the rights of criminals).

It is true that the polycentric issues involved are judicially resolved only at a very high level of generality, but it is important to recognize that the most fundamental sort of allocative decisions are made by the judiciary, as well as by the legislature and by administrative agencies. Perhaps Fuller's main point is simply that polycentric issues can be resolved more concretely, more explicitly, and more conveniently by a number of nonjudicial institutions. With that point, I am in fuller agreement.

⁶ Selznick, Philip, “The Sociology of Law” (June 1966Google Scholar), revised draft of an article published in The International Encyclopedia of the Social Sciences. The assumptions that have grown up around the basic principle of Anglo-American criminal law that a criminal statute is void if its scope and meaning are vague are confronted in Remington, Frank J. and Rosenblum, Victor G., “The Criminal Law and the Legislative Process,” University of Illinois Law Forum (Winter 1960), 481Google Scholar–99. It is there argued that the prevailing condition of criminal law in the United States is one of ambiguity, resulting in the intended or unintended delegation of broad discretion to enforcement agencies to decide what conduct is to be subjected to the criminal process.

⁷ , Weber, On Law in Economy and Society, ed. Rheinstein, Max (Cambridge, Mass., 1954), esp. 334Google Scholar–37.

⁸ , Schurmann, Ideology and Organization in Communist China (Berkeley 1966), esp. 1–16Google Scholar. For contrasting review articles of this important book, see Fairbank, John K., “The State That Mao Built,” World Politics, xix (July 1967), 664CrossRefGoogle Scholar–77; and Pfeffer,” Contradictions and Social Change in Communist China,” Pacific Affairs, xxxix (Fall and Winter 1966–1967), 349Google Scholar–60.

⁹ I was stimulated to adopt this perspective by Skolnick's Justice Without Trial.

¹⁰ The Morality of Law (New Haven 1964). Fuller's approach, which I here adopt in part, like much of social science may overrationalize reality by trying to treat it as “system.” I recognize the problem and admit my own complicity in the use of such an approach.

¹¹ Ibid., 39.

¹² Ibid.

¹³ Cohen, Jerome A., “The Criminal Process in the People's Republic of China: An Introduction,” Harvard Law Review, LXXIX (January 1966), 528Google Scholar.

¹⁴ It should be noted that the issue of analogical application of the criminal law often is treated separately from the more general issue of statutory interpretation. But statutory interpretation, ideally involving construction of the purpose or spirit of the law, frequently involves analogical reasoning. The problem of adequate warning is at the core in both issues. Our rules of statutory interpretation requiring strict construction of ambiguous provisions in favor of the defendant reflect an awareness of the close relation between statutory interpretation in general and analogy.

¹⁵ Fuller, 59.

¹⁶ Schurmann argues that all organizations have their own ideologies (p. 18).

¹⁷ Specifically, Professor Cohen includes offenses the Chinese would style administrative offenses under their Security Administration Punishment Act (SAPA). SAPA, virtually unmentioned in previous literature in the field,” is the nearest thing to a criminal code [for minor crimes] that China has produced” (p. 24).

¹⁸ See n. 13.

¹⁹ Perhaps it should be made clear here how narrowly the category of “specialists” must be defined. For example, many graduates of this country's foremost law schools probably would be excluded from the category. On the basis of personal experience, I can attest that at least as late as 1961 it was possible, because of the extreme emphasis on the case method on judicial elements and judicial perspectives, to graduate from the Harvard Law School without a realistic conception of how the criminal process operates in the United States.

It might seem that my criticism of Professor Cohen for not accomplishing what he did not attempt to do is gratuitous. However, because of the prevalence of myths and biases about our own and the Chinese processes, I feel that my comments are justifiable. In this context comparative perspectives must be explicitly stated if communication is to be successful.

²⁰ Packer, Herbert L., “Two Models of the Criminal Process,” University of Pennsylvania Law Review, cxiii (1964), 1–68CrossRefGoogle Scholar. The discussion below of these two models is based upo n this fine article.

One problem with Professor Packer's treatment of th e American criminal process is his slighting of th e function of the Due Process Model in crime control itself. Since notions and symbols of due process in our culture are imbedded in the very legitimacy of government, a crucial degree of compliance with the law is induced by the ideal and assumed operation of the Du e Process Model. I am indebted to Professor Edmund W. Kitch of the University of Chicago Law School for this point. Presumably, the increasing awareness today of the limited impac t of this model in practice is not unrelated to rising doubts concerning the legitimacy of some of our institutions and to rising crime rates.

In focusing on Packer's two analytic models, I do not mean to imply that various organizations, suc h as the police, are free of political and other pressures affecting behavior of members. If in this broader perspective some positions taken in this article suggest a lack of sympathy for complex problems faced by police, to some degree this is attributable to my primary concern wit h the quality of effective justice, whatever circumstances may be pled in extenuation. For a very recent and partial survey of th e quality of effective justice in Chicago from the point of view of the Director of the Illinois American Civil Liberties Union, see Miller, Jay, “Verdict: Guilty—Racism Masks Chicago Police,” Focus Midwest, vi (1968), 10–15Google Scholar.

²¹ Packer, 12.

²² Ibid., 13.

²³ Due process in this sense is not synonymous with legality, understood as rule-following. Du e process, as used here, involves rule-following plus a commitment to substantive positions that epitomize the entire development of Anglo-American liberal culture.

²⁴ Packer, 17.

²⁵ Ibid., 23.

²⁶ Skolnick, 13.

²⁷ Packer, 49.

²⁸ Ibid., 56.

²⁹ Pp. 81–82.

³⁰ Skolnick, Jerome H., “The Sociology of Law in America: Overview and Trends,” Law and Society, a supplement to Social Problems (Summer 1965), 4–39Google Scholar, at 17.

³¹ In this regard, see Joseph Goldstein,” Police Discretion Not to Invoke the Criminal Process: Low Visibility Decisions in the Administration of Justice, “Yale haw Journal, LXIX (March 1960), 543–94. For a revealing case study of the problem of judicial control of police, see Schwartz, Herman, “Stop and Frisk,” Journal of Criminal Law, Criminology and Police Science, LVIII (1967), 433CrossRefGoogle Scholar–64.

³² Skolnick, Justice Without Trial, 197.

³³ Ibid., 233.

³⁴ Ibid., 110.

³⁵ Ibid., 174–76.

³⁶ The broader applicability of the concept of “crimes without victims” to China—involving, for example, black-market transactions or, generally, crimes against the state—is one way of accounting for China's high levels of police initiative and all the practices associated therewith.

³⁷ Skolnick, Justice Without Trial, 112–38.

³⁸ Ibid., 215.

³⁹ For a relevant discussion of the public defender office, see David Sudnow,” Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office,” Social Problems, xii (Winter 1965), 255–76. Qualifying some of Sudnow's points, Skolnick, Jerome H. deals with the problem more generally in “Social Control in the Adversary System,” Journal of Conflict Resolution, xi (March 1967), 52–70CrossRefGoogle Scholar.

⁴⁰ Skolnick, Justice Without Trial, 146. Again, if only because in China the category of persons who anticipate repeated future encounters with the police may be broader than in the United States, inhibitions among suspects and defendants there may tend to be more generalizedt than in the United States.

⁴¹ Ironically, the counterpart in China to indigents in the United States probably is the bourgeoisie, who are inhibited increasingly from asserting their rights by their entire life situation since 1949.

⁴² Carlin, Jerome E. and odiers, “Civil Justice and the Poor,” Law and Society Review, 1 (November 1966), 9–89CrossRefGoogle Scholar, at 56. This article provides a devastating critique of the de facto and de jure class bias of the entire American legal system. In fact, it is not altogether clear to me that the class or status (or race) of a suspect or defendant is less relevant to the probable disposition of his case in the United States than in China. Only the good guys and bad guys are changed to protect the respective systems. In this regard, see also Sudnow.

⁴³ Skolnick, Justice Without Trial, 45, 105.

⁴⁴ Ibid., 83.

⁴⁵ Fuller, 72–73.