As has often been pointed out, “China's major problem is still the rural problem, and one of the most important tasks of the modernization of Chinese society is the modernization of rural society; anyone who is really concerned about the happiness and sorrow of the Chinese people is certainly concerned about the life of those people at the bottom of the society.” China's growing gaps between urban and rural areas and between rich and poor continue to challenge China's legal reforms. Whether China becomes a rule of law state will depend on whether legal reforms can reach deep into the rural population.

This chapter examines “grassroots” legal services in China's rural areas. “Grassroots level” refers to cities and districts at the county level, township, town, and subdistrict offices, and the so-called “detached judicial tribunals.” “Legal services” include a range of activities from legal representation in litigation to the handling of nonlitigation legal matters, mediation of disputes, assistance in notarization and testimony, legal consultancy, and assistance in the writing of legal documents. Grassroots legal-services offices provide legal services to a wide range of clients from governmental agencies, self-governed mass organizations, government-sponsored institutions and enterprises, social entities, and individual businessmen, partnerships, and citizens within the jurisdiction.

In analyzing grassroots legal services, we find a complex relationship between these offices and other state administrative organs (local justice offices – the sifabu), state judicial organs (grassroots people's courts), self-governing mass organizations (people's mediation commissions), and other legal-services institutions (legal aid and law firms).

The Old Latin maxim ex oriente lux, ex occidente lex (from the East, light; from the West, law) evinces a deep assumption about the relationship between the East and law – that is, although civilization began in the East, the West is the source of rationality and law. Indeed, much of this assumption lies in present-day “rule of law” programs as they are often transported from the West to transitional economies in the East and South. Rule of law, with its rationality and predictability, is said to be fundamental to a market economy. Its ability to check abusive arbitrary powers is believed to go hand in hand with democratic polities. Pointing to today's industrial democracies, reformers have concluded that rule of law is necessary for economic development and political liberalization.

Yet the challenges to these assumptions are numerous, ranging from whether there is such an East/West divide and, if so, whether the East is really antithetical to law; to the definition of “rule of law” itself and whether legal institutions are indeed transplantable. Furthermore, even as the rule of law has become a new rallying cry for global missionaries, reformers recognize that the rule of law is an exceedingly elusive notion. If “it is not already firmly in place, the rule of law appears mysteriously difficult to establish.”

In its thirty years of economic reforms, China has challenged the pairing of law, markets, and democracy.

Is the Chinese party-state too responsive to public opinion? In the case of the courts, this may be the case. Western literature has devoted extensive attention to the problems in the Chinese legal system, in particular in the courts, describing a system that continues to be undermined by a range of problems, from corruption to lack of competence to continued Communist Party intervention. Likewise, existing literature describes a legal system that often is unresponsive to individual demands for justice. In this chapter, I examine another possibility: that one impediment to the development of courts that are able to protect individual rights is that courts are too responsive to protests, petitions, and public opinion.

This chapter presents evidence that protesting, petitioning, or simply threatening to do either often is a successful means for litigants to pressure courts to rule in their favor or to alter decided cases. The ability of individuals to influence court decisions through petitioning is linked to other better-known problems in the Chinese legal system. Courts' sensitivity to the threat of unrest reflects the facts that party officials continue to interfere in court decisions and that individual judges and court leaders are dependent on party officials for their positions. Sensitivities to popular opinion and to individual protesters also reflect a political system that has placed tremendous emphasis on maintaining social stability.

INTRODUCTION

Local Chinese courts commonly use responsibility systems (mubiao guanli zeren zhi, zeren zhuijiu zhi) to evaluate and discipline judges. Judges receive sanctions under these systems for a wide range of behavior, such as illegal or unethical dealings with parties and lawyers, inappropriate courtroom behavior, and neglect of duty.

Many local court Chinese responsibility systems also discipline judges for simple legal error. Judges may face sanctions linked to the number of cases that are reversed on appeal simply because the interpretation of law made by a higher court differs from that of the original trial judge. Sanctions include monetary fines and negative notations in a judge's career file. Such practices violate Chinese Supreme People's Court (SPC) judicial directives specifically barring the use of responsibility systems to sanction judges for simple legal error. Local Chinese courts, however, have continued to promulgate such systems.

Court responsibility systems that discipline judges for simple legal error also create a perverse set of incentives for Chinese judges. To avoid appellate reversal, lower Chinese courts and judges rely on an ill-defined system of advisory requests (qingshi) to solicit the views of higher courts and judges on how to decide pending cases. As Chinese judges themselves note, excessive resort to qingshi practices has many negative effects. It undermines appellate review, because the court or judge that reviews the case on appeal may have responded to the initial qingshi request regarding how to decide the case in the first place.

The development of the legal profession in China since 1978 has been largely a modernization story of economic development. The transition to a market economy stimulated the demand for lawyers. Conversely, lawyers contributed to economic growth, both directly through their work on commercial transactions and protecting property rights, and indirectly by promoting, along with other legal professionals, legal reforms aimed at implementing rule of law and establishing the institutions necessary for a market economy. As such, the development of the legal profession and its relationship to the market in China is broadly consistent with experiences in other countries.

However, whereas China and other East Asian countries lend support to modernization theories, they have also diverged from the more classical straight-line versions whereby all states end up with Euro-American liberal democracy. Hong Kong, Singapore, Japan, South Korea, and Taiwan are all economically wealthy countries with legal systems that rank high on rule of law indices and protect both property and non-property rights reasonably well. Yet some of them continue to be nondemocratic, or somewhat dysfunctional democracies, and on the whole less liberal than their economically advanced Western counterparts. Moreover, these East Asian states have not always followed the prescribed path with respect to political reforms, economic policy, or institutional development, including the development of the legal profession.

Much of the concern of Western scholarship on the legal profession in China, and East Asia more broadly, has been on the role of the legal profession in political reforms.

INTRODUCTION

One of the most conspicuous changes in judicial policy toward the end of Xiao Yang's two terms (1999–2008) as president of the Supreme People's Court (SPC) was the retreat from a concerted period of civil justice reform, the origins of which can be traced back to 1979 and which was at its most intense during the decade prior to 2006. The hallmark of this recent change in approach has been a shift of priority from adjudicatory to mediatory justice.

By 2006, the SPC had openly conceded the failure of judicial reform programs aimed at enhancing judicial professionalism. The SPC had also issued a series of judicial interpretations to steer the judiciary toward settlement of disputes through court-based mediation. Because of this policy change, local courts are revising their incentive mechanisms to encourage judges to privilege mediation in resolving disputes and to reward them for doing so. Judges and legal scholars are rediscovering the virtues of court-based mediation, including its efficiency, cost-effectiveness, and humanity.

This chapter, in seven parts, studies this transition by examining the rise, demise, and partial resurgence of court mediation in Chinese justice. Section I details the development of the civil justice system of the People's Republic of China (PRC) and explains how its political marginalization helped create the space for its subsequent reform. Section II analyzes what might be termed phase one of the reform process, including the factors driving the striking shift from mediatory toward adjudicatory justice.

If how a society decides its disputes is “a ritual of extreme social significance,” then China's thirty years of legal reform can inform our understanding of how the Chinese state relates to its society and how Chinese citizens relate to one another. Since 1978, China has embarked on legal reforms to promote law as a main mode of dispute resolution. But critics argue that China is establishing legal institutions more to promote economic development and coalesce state power and less to empower ordinary citizens. It is said that ordinary citizens shy away from formal legal mechanisms to resolve disputes because of an historical distrust of the law that is reinforced by recent experiences with Chinese courts. At the same time, the state's distrust of civil society institutions renders bottom-up initiatives unpromising.

This volume takes an on-the ground look at how civil disputes of ordinary citizens are being resolved in China today. In identifying what is going on at the ground level, this volume “disaggregates the Chinese state and society” to focus on the hows and whys – that is, the process of “law in action.”

In 2004, the ethnic-minority musician and prominent local artist Xuan Ke brought suit in Lijiang City Intermediate Court in southwestern Yunnan Province, claiming that his right of reputation had been infringed by an article in the Beijing-based Arts Criticism magazine. The author of the article, the scholar Wu Xueyuan, argued that Xuan's music was, in fact, not a product of the local ethnic minority culture and that Xuan's misrepresentation of his music amounted to fraud.

Arts Criticism is a scholarly journal, and Wu's critique was based on academic research. Nonetheless, his language was sharp. Wu claimed that selling Naxi music was the equivalent of “selling dog meat as steak.” He referred to Naxi music as “fake culture” and declared that “these falsehoods are patently absurd, and a fraud on the public.” All of these phrases would later be cited by Xuan Ke as specific examples of personal attack. Wu and the magazine's editors defended against Xuan's charges by both pointing to their constitutional rights to scholarly enquiry and by attempting to demonstrate the factual veracity of the article's assertions, specifically that Naxi music was, indeed, a commercial creation of Xuan Ke.

In a verdict delivered in December 2004, the intermediate court included a reference to Chinese constitutional rights protections; it also concluded that

Until 1979, China had never been a country with a highly differentiated legal system. From the Law Classics (Fa jing) in the Warring State period (480–221 b.c.) to the Great Qing Criminal Code (Da Qing lü li, effective during 1740–1910), the two-millennium history of codification in imperial China had always been characterized by a strong emphasis on criminal law; most noncriminal disputes were adjudicated according to the Confucian ethics (li) and social customs, without referring to any legal code. Meanwhile, in the Chinese political system there was no separate judiciary from the government, and the local magistrate was both the administrative leader and the judge for crimes and social disputes. Accordingly, no formal legal profession was found in imperial China. In certain periods, there were “litigation masters” (song shi) who provided help to the people in litigation, but they were neither organized into a legal profession in the Western sense nor recognized by the state. Ordinary social order largely was maintained in a harmonious and unified way through non-legal means. However, in the twentieth century, this social order was almost completely broken down because of the incessant revolutions, culminating in the Cultural Revolution during 1966–76.

Since the late 1970s, the Chinese legal system has experienced a series of fundamental changes. Tens of thousands of laws, regulations, judicial interpretations, ministry regulations, and local regulations have been promulgated, starting with the Criminal Law and Criminal Procedure Law in 1979.