Complementing the burgeoning scholarship on Chinese law and legal institutions, Woo and Gallagher's book takes on the formidable task of presenting an interdisciplinary inquiry into how contemporary Chinese law and legal institutions work to resolve civil disputes. The result is a well-crafted volume of eleven contributions, written by academics and experts, organised into three themes: legal development and institutional tensions, dissemination of the law, and the law from the bottom up. Woo and Gallagher's introduction situates the chapters within the overarching objective of understanding law in action as opposed to law in books and how the law shapes social behaviour. This approach necessitates looking at Chinese laws and legal institutions within their economic and social context along with their ongoing evolution as the Chinese government increasingly looks to law as the means to maintain social stability. Contributors utilise a wide range of methodologies to examine these questions, including historical narratives and empirical studies to learn about popular attitudes.
The first theme explores features of Chinese legal institutions and the relationships between courts and others. In their contribution, Fu Hualing and Richard Cullen present an engaging historical narrative tracking legal reforms in the Supreme People's Court (“SPC”) from 1978 to the present time. Many early reforms, initiated at the behest of the SPC itself, shifted the focus of the courts from mediation to adjudication. Reformers sought to professionalise the judiciary by moving away from the traditional role of the judge as a social worker persuading disputants to conclude their disagreement, to a dispassionate judge listening to legal arguments and deciding the correctness of claims to rights and entitlements. Yet, as Fu and Cullen demonstrate, the reforms produced a number of unintended consequences by raising expectations and stressing procedures and the adversarial process over popular notions of substantive justice. Disappointed litigants increasingly petitioned political authorities in Beijing to complain about the courts, prompting the Chinese government to declare that the courts had neglected their duty to promote social stability by resolving disputes through compromise. Critics argued that reforms were premised on an exaggerated normative influence of the law and failed to enhance the legitimacy of courts given that the judiciary became less responsive to social needs. Since 2006, the courts have partly reversed course to reemphasise mediation as the best solution to civil disputes while recalibrated judicial incentives reward mediated outcomes. Fu and Cullen conclude that the reformers made themselves a hostage to fortune. By overreaching and moving too quickly, the reforms built up expectations but failed to improve court performance while distorting the role of the Chinese judiciary in ensuring a harmonious society.
Turning to look at how legal norms are popularly perceived and disseminated among Chinese citizens, the second theme presents detailed empirical evidence on the effects of legal change and the implications of new legal rules on social tradition. Sida Liu's unique article in this section examines more than two thousand legal opinions appearing in a popular legal advice column from 1979 to 2003. During that time, the language used by lawyers in responding to various civil disputes changed significantly. Early on, lawyers relied on moral discourse and longstanding traditions to fit their advice within the social and political context of the disputants, using language such as the “judicial practice of our country”, “fair and reasonable”, “the spirit of our laws”, “carrying forward a self-effacing manner”, and “the right attitude”. Over time, these moral directives disappeared in favour of technical discussions of legal rules and advice formulated on the basis of structured legal arguments. Liu describes the new language used by lawyers as disinterested and rigid, while the process of dispensing legal advice became a “cold ‘vending machine’ detached from ordinary social life” (p. 263). The formality of contemporary legal advice is seen by Liu to frustrate communication between lawyers and Chinese citizens, making it difficult for lawyers to resolve disputes and pursue social justice. Unlicensed providers of legal services, including so-called “barefoot lawyers”, have sought to bridge the gap at the local level. Liu concludes that the earlier legal opinions provide a valuable lesson for Chinese lawyers to improve their communication with ordinary citizens to increase understanding and acceptance of the law.
In its final theme, the volume considers the potential of the law at the ground-level to bring about broader social change. Benjamin L. Liebman's fascinating contribution explores the tension between legal doctrine and populist pressure in the Chinese courts. An intricate system of letters, visits, and petitions is utilised by millions of litigants each year to pressure courts to rule in their favour or to change court decisions, challenging a common perception that Chinese courts operate under top-down directives. Notably, the Chinese government's emphasis on maintaining social stability coupled with a system of incentives to reward judges for concluding disputes with finality produces courts that are extremely sensitive to populist pressure. Complaints can be brought by litigants to the court directly or to other government or party offices, in which case they provide a mechanism for political leaders to obtain information. In Hubei, petitioners are entitled to meet with the judge who decided their case while the mobile telephone numbers of all judges in Nanhe County are posted in public and judges are required to keep their phones on twenty-four hours a day, seven days a week. Most petitions involve areas of law in which the judge exercises some discretion. Complaints often relate to criminal cases, especially those imposing a death sentence, cases where court judgments have not been enforced, cases where plaintiffs lost as a result of insufficient evidence, cases involving sensitive topics such as land disputes and housing relocation, and cases dismissed for lacking a recognised legal claim. Chinese judges admit to feeling tremendous pressure to satisfy petitioners even though the complainants may lack an understanding of the law and what the courts can provide. In one case, a court changed its decision and awarded compensation to a petitioner who threatened suicide if the court did not rule in his favour. Judges sometimes even pay petitioners directly to avoid an escalation of the complaint and are rewarded for reducing the number of petitions. Liebman concludes that while the petition-system provides a channel for diffusing grievances, the fact that it works creates incentives for further complaints and the escalation of demands. Interestingly, courts may use the existence of petitioning to resist interference from powerful interests in deciding cases, given that an appearance of bias is likely to result in a complaint. In any event, the petition-system demonstrates the Chinese preference for social stability over legal doctrine.
Woo and Gallagher's book succeeds in its objective by capturing an unprecedented snapshot of Chinese law on the ground, taking the reader inside legal institutions as they work to resolve civil disputes. In addition to posing a number of useful questions to direct further research in this area, the volume provides lessons that can be applied to legal reform projects in other countries. In short, this collection of scholarly work on Chinese civil dispute resolution makes a valuable contribution to the English-language literature on the Chinese courts and will be of tremendous interest to comparative lawyers, students of courts, and those interested in legal institutions situated within their economic and social context.
