China’s Turn Against Law

Law was supposed to be the solution. 

Horrified by the chaos of the Maoist era, Chinese authorities rebuilt their legal system in the 1980s and 1990s.  They trained judges in law.  They allowed lawyers a degree of autonomy to represent their clients.  They emphasized the need to resolve disputes in court - and according to law - rather than through politicized struggle sessions.  They even enacted administrative laws giving citizens limited rights to challenge the power of local officials.  Central to all of these efforts: a search for stable institutions to resolve citizen grievances, albeit under firm Party control.

But Chinese leaders are now turning against these reforms.  Some concerns are practical.  They now criticize the earlier emphasis on professionalizing the judiciary, viewing it as inappropriate for rural Chinese courts hampered by a lack of legally-trained personnel, and often handling disputes according to time-honored local traditions.  Other concerns are political.  Central authorities worry that decades of official rule-of-law rhetoric are fueling surging numbers of petitions and protests by citizens seeking to protect their rights, and even leading some officials to perceive law as superior to Party policy.  They also fear that China’s cadre of public interest lawyers might emerge as a core of Mideast-style protest movements.

This has generated a backlash.  Official harassment of legal activists and public interest lawyers is increasing.  Since 2008, central authorities have launched campaigns to reinstall Chinese judges with the proper respect for Party doctrine.   And Chinese authorities are making strong efforts to shift citizen disputes away from court trials, decided according to law.  Instead, they are placing heavy pressure on judges to resolve cases through mediation, and reviving extrajudicial Maoist-era mediation institutions that had fallen in disuse during the reform era.

To be sure, law has not been abandoned in China.  Authorities continue to promulgate statutes.  Citizens continue to invoke legal norms to protect their interests.  There is still some room for progressive legal reform.  Nor are Chinese developments without precedent.  Litigation has fallen out of favor in American courts as well.  Nations such as India and the Philippines are resuscitating traditional mediation as part of a global reconsideration of legal norms and institutions transplanted from the West. Indeed, the revived Chinese emphasis on mediation may produce some useful local experiments with alternatives to court trials that may help respond to the pressing problems facing rural Chinese parties and judges.

But the new track is problematic.  Despite being cloaked in the language of mediation, the primary focus of these shifts is not on assisting parties to voluntarily resolve their own grievances (although that may be a beneficial result in some cases).  Rather, the aim is suppress conflicts and block citizen petitions from rising toward central officials – at all costs.

As a result, Chinese authorities have toughened career and financial incentives facing judges.  Those with high rates of out-of-court settlements are rewarded.  Those who issue decisions resulting in aggrieved parties petitioning higher officials are sanctioned.  Party officials are advancing new propaganda models for Chinese judges to emulate.  Judge Chen Yanping, selected as a national “model judge” in 2010, has been hailed by state media for resolving over 3100 cases in 14 years, without a single petition by a dissatisfied party, nor a single reversed case.  Her secret?  Avoidance of law, adherence to Party doctrine, and an unflagging determination to press for a mediated settlement in absolutely every case that comes before her.

This is not mediation.  Rather, it is political pressure disguised in mediation garb.  And it is has severe effects.  Some Chinese judges complain of having to resort to arm-twisting of parties to reach their mandatory target ratios for mediation.  Others report throwing legal norms out the window entirely, or even using their own court budgets to pay off disgruntled parties who threaten to stage protests. 

In either case, it is the institutional authority of the courts that suffers - undermining the legitimacy of the judicial system in the eyes of those parties who do not receive a fair hearing of their grievances, while convincing others that the court system is nothing more than a paper tiger to be pushed around with well-organized protest strategies, regardless of the legitimacy of their demands.

This is the real risk posed by the decision of Chinese officials to turn against their own legal reforms of the last several decades.  They built legal institutions in an effort to govern China with a more stable set of norms.  Now, in a single-minded quest for the short-term appearance of social stability, they are undermining China’s long-term prospects of actually achieving it.

[This is the abstract for my new article, "China's Turn Against Law" (forthcoming 2011)]