China’s Turn Against Law
Carl F. Minzner
Fordham University - School of Law
February 22, 2011
American Journal of Comparative Law, 2011
Washington University in St. Louis Legal Studies Research Paper No. 11-03-01
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 grievances between citizens and administrative grievances against the state. But social stability concerns have led top leaders to question these earlier reforms. Central Party leaders now fault legal reforms for insufficiently responding to (or even generating) surging numbers of petitions and protests.
Chinese authorities have now drastically altered course. Substantively, they are de-emphasizing the role of formal law and court adjudication. They are attempting to revive pre-1978 Maoist-style court mediation practices. Procedurally, Chinese authorities are also turning away from the law. They are relying on political, rather than legal, levers in their effort to remake the Chinese judiciary.
This Article analyzes the official Chinese turn against law.
These Chinese developments are not entirely unique. American courts have also experienced a broad shift in dispute resolution patterns over the last century. Litigation has fallen out of favor. Court trials have dropped in number. Alternative dispute resolution mechanisms have increased in number. Observing such long-term patterns, Marc Galanter concluded that the United States experienced a broad “turn against law” over the 20th 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 mediative institutions. This is part of a global reconsideration of legal norms and institutions imported or transplanted from the West.
Despite these similarities with global trends, this Article argues that Chinese leaders’ shift against law is a distinct domestic political reaction to building pressures in the Chinese system. It is a top-down authoritarian response motivated by social stability concerns.
This Article also 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 leading them to take steps that are having severe long-term effects of undermining Chinese legal institutions and destabilizing China.
Last, 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 the direction it is heading.
Number of Pages in PDF File: 50
Keywords: China, Law, Mediation, Chinese Law, Protest, Judicial Reform, Social Unrest, Responsibility Systems, Courts
Date posted: February 23, 2011 ; Last revised: October 22, 2011