Chinese Justice: Civil Dispute Resolution in Contemporary China is a collection of 11 essays on civil justice in the PRC, covering mainly the period of the 1990s and early 2000s. These substantive papers are preceded by an introduction by both editors which explains key aspects of the essays, and conclude with Margaret Woo's reflections on the broader significance of their findings for the development of “Chinese Justice from the bottom up” (pp. 380–402).
This is an important and interesting book. Its processual and institutional concerns include mediation (especially in and around the court), control of judges, the legal profession, local legal-affairs officers, popular legal attitudes and recourse to law, legal advice columns in the media, and constitutional litigation. The emphasis is on changes in legal culture emerging from “the bottom up,” and more specifically on changing dispute processes and resolutions. The book offers important food for thought for not only legal specialists, but also political scientists, sociologists and cultural anthropologists. On the other hand, given the emphasis on local experiences of dispute resolution, it is perhaps a little surprising that no essay is focused especially on the key institution: the people's mediation committee. In a sense, the book is a rather “court-” and “administration-” focused examination of civil justice.
Perhaps the most interesting essays are the studies, especially found in part three, which explore issues and developments in “law from the bottom up.” Benjamin Liebman's essay, entitled “A populist threat to China's courts,” explores the disproportionate concern of the People's Courts with protests, petitions and public opinion, and the difficulties populist pressures pose for the courts' embrace of rule of law principles. As Liebman observes, robust avenues of popular complaint in the PRC – somewhat paradoxically encouraged by an authoritarian regime – may put so much pressure on judges that “a single individual, standing with a sign stating ‘grievance’ outside a local court, has the ability to sway a court's decision” (p. 311). It turns out that the courts are once more placing the emphasis on the use of mediation, in a manner which resembles the so-called “Ma Xiwu adjudication method,” in the hope that mediation will reduce the flow of cases to the grievance channel of “letters and visits” (p. 303). In the last section, Liebman's reflection on the influence of petitioning on courts points to the fact that while remaining weak in political terms, courts are gaining importance as fora for dispute resolution. Nevertheless, they will continue to face challenges in embracing the “law principles,” as long as these principles are designed for achieving substantive outcomes which prioritize political ideology, rather than procedural fairness.
The study by Fu Yulin examines “grassroots” legal services in the countryside. She suggests that “when seeking to resolve disputes, Chinese rural citizens will seek out ‘legal’, administrative, governmental, as well as self-exercised social remedies in a blended and interesting mix” (p. 315). The continuing demand for the grassroots services, and grievants' willingness to explore a whole range of dispute resolution possibilities, encourage Fu to conclude that China's leadership should avoid reliance on a “singular supply model” for the development of legal-services offices (p. 339).
The final substantive chapter of the book is Thomas Kellogg's exploration of the “judicialization of the constitution” (xianfa sifahua). Kellogg concludes with a mixed message. There is a slowly evolving rights consciousness in society arising in part from cases relating to the constitution. However, an unintended consequence of rights assertion in the courts may also be the imposition of tighter controls on civil society, “in particular on those lawyers and civil society groups who have taken the lead in bringing constitutional cases to court” (p. 376).
Other essays in the book are organized into two sections. In the first, entitled “Legal development and institutional tensions,” four studies deal with how legal institutions (including judges, private lawyers, legal-service workers and legal-affairs workers) are serving to enforce rights, merely containing public discontent, or in fact doing both. Contradictions between the function of various agencies are also noted. Fu Hualing and Richard Cullen provide an excellent essay on access to civil justice issues, analysing developments in terms of an oscillation from “mediation justice” to “adjudication justice” and then both to “neo-mediation” over the past 20 years or so. The authors conclude that the CCP needs to commit itself more firmly to civil justice reform if access to justice progress is to be made (pp. 56–57).
The essay by Carl Minzner on the use of discipline for dealing with judges who decide cases incorrectly stresses continuity in official approaches: “the imperial Chinese heritage lives on” (p. 58). Although not formally sanctioned by the Supreme People's Court, there is an enduring deployment of discipline by local courts in order to punish judges whose decisions in the cases they handle are deemed to be “wrong” (cuo'an) because they have been reversed by an appellate court. Douglas Grob offers an important contribution on the “administrative legality” at China's grass roots, where the local legal affairs office (fazhiban) holds the key for the implementation of formal legislation. This is particularly reflected by its roles of mediating administrative conflicts arising in the course of local implementation of national law, as well as reviewing issues that may not be dealt by the court in an administrative reconsideration.
The first section ends with Randall Peerenboom's essay, which explores the development of the legal profession with particular reference to its relationship with the economic growth in China. The legal profession in China, as Peerenboom explains, varies by expertise and by region like elsewhere in the world. But, overall, competition between the legal profession (the law firms) has helped with the enhancement of professionalism at every level. On the other hand, in China, where the economy remains heavily regulated and the rule of law is not fully established, lawyers may seek to “maintain close relations with government officials” so as to “keep up with the rapidly changing regulatory environment and have the connections and judgment to anticipate future changes and the consequences for their clients” (p. 134). As a matter of fact, there is also very limited space for Chinese lawyers to conduct “political lawyering” of the kind found in more liberal democratic societies (p. 134).
In part two of the collection, entitled “Pufa and the dissemination of law in the Chinese context,” four essays deal with issues of popularizing knowledge of the law. Landry's study of “popular trust” is a significant attempt in understanding mass perceptions of legal institutions in China. One interesting finding provided by the essay is that residents in the areas held strongly by the Kuomintang in the past seem to have better trust in courts than in those held by the CCP. Landry suspects that such difference is largely attributed to the Nationalists' successful establishment of the courts and other legal institutions before the Communist takeover, and that these Nationalist efforts may have indeed exerted an impact on the ordinary people's legal awareness, including their trust in the courts.
In the next essay, Ethan Michelson and Benjamin L. Read make another interesting attempt in measuring “perceptions” of the masses towards legal institutions. On the basis of survey findings, Michelson and Read identify a gap between “institutional performance” and “popular expectations” in China, and that Chinese people often assess their personal experience with the court in association with the substantive outcome. They also conclude that the reason for the persistence of such a gap is because of the “portraits of substantive justice trumping procedural fairness both in traditional Chinese culture and in socialist legality” (p. 197). The following essay by Mary E. Gallagher and Yuhua Wang examines perceptions of the legal system from the perspective of labour disputants. Their findings echo those of Michelson and Read, namely that those who have experience with legal institutions evaluate the system negatively while those who have not hold the opposite view.
In the last essay of part two, Sida Liu highlights the changing nature of legal work in China through a comprehensive analysis of 2,077 “cases” published in the legal advice column in the journal the Democracy and the Legal System. As Liu notes, rapid legal reform has in effect broadened the gap between the legal system and social life, leaving lawyers struggling to cope with the demand to pursue social justice, and encouraging the emergence of community-based legal service providers to fill local needs. He also concludes with the observation that, ironically, while lawyers are increasingly willing to use legal norms in contemporary China, citizens are being gradually alienated from formal norms, and instead re-embracing their cultural or social traditions.
Overall, this is a robust collection of essays, and an important guide to China's uncertain progress towards a more law orientated society.
