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Chinas Turn Against Law Notes

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MINZNER China's Turn Against Law--Chinese authorities are reconsidering legal reforms they enacted in the 1980s and 1990s.
These reforms had emphasized law, litigation, and courts as institutions for resolving civil disputes between citizens and administrative grievances against the state.
Central Party leaders now fault legal reforms for insufficiently responding to (or even generating) surging numbers of petitions and protests.
Chinese authorities have drastically altered course. Substantively, they are de-emphasizing the role of formal law and court adjudication.
o They are attempting to revive pre-1978 court mediation practices. Procedurally,
Chinese authorities are also turning away from the law.
o They are relying on political, rather than legal, levers in their effort to remake the
Chinese judiciary.
These Chinese developments are not entirely unique. American courts have also experienced a broad shift in dispute resolution pat terns over the last century. Litigation has fallen out of favour. Court trials have dropped in number. Alternative dispute resolution mechanisms have increased. Observing such long-term patterns, Marc Galanter concluded that the United States experienced a broad "turn against law" over the twentieth century.
China's shift also parallels those in other developing countries. In recent decades, nations such as India, Indonesia, and the Philippines have resuscitated or formalized traditional mediation institutions.
o This is part of a global reconsideration of legal norms and institutions imported or transplanted from the West.
o Despite these similarities with global trends, this Article argues that Chinese leaders'
shift against law is a distinct domestic political reaction to building pressures within the Chinese system. It is a top down authoritarian response motivated by social stability concerns.
This Article analyzes the risks facing China as a result of the shift against law. It argues that the Chinese leadership's concern with maintaining social stability in the short term may be having severe long-term effects—undermining Chinese legal institutions and destabilising the count

Finally, this Article argues for rethinking the trajectory of Chinese legal studies.
Scholars need to shift away from focusing on formal Chinese law and legal institutions in order to understand how the Chinese legal system actually operates and to recognize the direction in which it is heading.


In the early twenty-first century, Chinese authorities turned against law
Similarities exist with the American "turn against law" over the twentieth century, as characterized by Marc Galanter.
o Trial rates are declining. Court presidents and administrators are expressing a new official preference for mediation, rather than adjudication. Suspicion of lawyers has risen. A new narrative has emerged which views litigation as a pathology to be cured, and law as cold and unresponsive to human need
The Chinese shift has a broader component as well. Procedurally, Party authorities are relying on political levers to remould the Chinese judiciary.
o Chinese authorities are altering financial and pro motion standards facing judges in order to steer them toward mediating, rather than adjudicating, cases. MINZNER China's Turn Against Law
Party propaganda authorities are presenting Chinese courts and judges with an official depiction of their roles that is a dramatic reversal of the emphasis on judicial professionalism prevalent in the 1990s.
o These trends are playing out against the background of Party political campaigns that are reasserting tighter control over the Chinese judiciary, cracking down on public interest lawyers, and attempting to curtail the influence of foreign rule-of-law norms among Chinese judges and officials.
o The official Chinese turn against law, and back toward mediation, is thus tied to a politicized rejection of many legal reforms advanced in the 1980s and 1990s.
Such statements are subject to important caveats. Law has not been abandoned in China.
State authorities continue to issue statutes and regulations. Citizens and corporations continue to invoke legal norms as they seek to protect their interests. There is still some
(albeit reduced) room for progressive institutional reform in China under the "rule of law"
Current developments are not without precedent.
o Law has never been far removed from Party politics in China, nor has the judiciary been independent of Party control.
Chinese Party officials supported legal and court reforms during the 1990s and early 2000s for their own political purposes.
o Even at the height of this reform wave, limits existed as to how far such activity could go.
o And current struggles in the Chinese judiciary find historical echoes in swings between professionalism and populism that have deeply marked both imperial and modern Chinese history.
Legal reforms pursued in the 1980s and 1990s have been halted or reversed. Chinese legal intellectuals are voicing alarm.
o Ji ang Ping, one of the key drafters of China's post-1978 civil and administrative codes, has warned that "China's rule of law is in full retreat."
Shifts in Chinese dispute resolution do bear similarities with developments elsewhere.
o Officials and scholars in many countries are raising questions regarding the appropriate role of formal law and court adjudication in dispute resolution.
o They are searching for effective alternatives to litigation to respond to (and resolve)
citizen grievances.
o In many countries, such efforts involve reviving traditional mediation institutions or founding new on

But China's shift against law, this Article argues, is different. The shift is not being led by lawyers or parties who are opting out of the court system in search of alternatives to litigation.
 Nor is it being implemented by neutral entities with a degree of independent legitimacy.
Rather, China's turn against law is a top-down authoritarian political reaction to growing levels of social protest and conflict in the Chinese system.
o Chinese leaders face increasing social unrest generated by civil conflicts between citizens, and between citizens and the state.
o Yet Chinese officials remain unwilling to allow the gradual emergence of independent legal institutions capable of dealing with such disputes—precisely the reform track pursued by some in the late twentieth century. Instead, Party o--- MINZNER China's Turn Against Law-authorities are imposing (or re-imposing) ideological and bureaucratic controls on the court system in the name of social stability.
o Such efforts are loosely clothed in the language of mediation or alternative dispute resolution (ADR), but this does not accurately reflect their true nature.
 Their main focus is not on assisting parties to resolve their grievances
(although this may be a beneficial side effect in some cases).
 Rather, it is aimed at preventing legal conflicts and citizen petitions from rising toward central officials.
 As the top Chinese Party official in charge of political-legal affairs has stated,
the aim of these reforms is to ensure that "small problems do not leave the village, large problems do not leave the township, [and] conflicts are not passed up to higher authorities.
Shifts in Chinese dispute resolution efforts are not entirely negative.
o Excessive emphasis on formal litigation and trials during the 1990s corresponded poorly with the realities of rural Chinese courts.
o The new policy line may concentrate official and scholarly attention on concretely analyzing the mediation practices that actually dominate the workload of these courts.
o It may produce some practical changes that respond more effectively to the very real difficulties that they face. And it may open up some room for useful ADR
reforms throughout the Chinese legal system.
But the official shift away from law carries real risks for China:
o Chinese judges are being told to—at all costs—avoid issuing decisions that might result in citizen protests, petitions, or complaints to higher authorities. This is undermining legal norms.
o It is rendering the judicial system susceptible to a range of populist pressure as citizens strategically elect to engage in coordinated protest on the internet or in the streets in an effort to sway court outcomes.
This represents more than a mere shift away from the emphasis on litigation and trials in the 1990s. Central to the definition of "law" is an effort to systematically apply rules and standards.6 In a range of civil and administrative grievances, Chinese officials are backing away from earlier (albeit tentative) efforts at doing this. Instead, Chinese authorities are increasing their demands that courts abandon such norms in order to meet political goals of appeasing popular sentiment and warding off social protest.

1978-2010: Substantive Shifts in Dispute Resolution-

In 1978, on the eve of the reform period, Chinese dispute resolution remained marked by practices that had characterized the People's Republic of China since the 1950s.
These relied on mediation led by community activists or officials to resolve civil grievances.
Maoist practices differed from traditional mediation structures pre sent in pre-1949 China.
o Procedures remained informal; legal rights were not emphasized.
In the early 1980s, Chinese authorities gradually began to back away from such practices.
Officials advanced court adjudication according to formal law as the preferred means of resolving civil disputes.
o Legislative reforms enacted in 1982 clarified that mediation was merely to be
"emphasized," rather than "the primary method" for resolving disputes.

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