Do the 'Haves' Come Out Ahead in Chinese Grassroots Courts? – Rural Land Disputes Between Married-Out Women and Village Collectives

100 Pages Posted: 5 Apr 2019

See all articles by Peter Chan

Peter Chan

City University of Hong Kong (CityUHK) - School of Law

Date Written: January 18, 2019

Abstract

This article tests Galanter’s party capability theory in China’s grassroots courts through empirically examining 858 sampled judgments of rural land dispute lawsuits between married-out women (the “have-nots” or the less resourceful party) and village collectives (the “haves” or the more resourceful party) throughout China from 2009 to 2017. In its groundbreaking discovery, this study reveals that the “have-nots” came out ahead in China’s courts by a substantial margin. This finding contradicts Galanter’s theory (under which the “haves” should prevail) and the established view that the “haves” should come out ahead in China (a leading study on Shanghai courts found the “haves” prevailing by large margins). This discovery is significant because the Chinese judicial system (like its counterparts in other authoritarian states) is commonly seen as a system that favors the “haves” in a disproportionate manner due to the lack of judicial independence (which enhances the likelihood of courts being swayed by powerful external influence in favor of the stronger party). This article argues that Galanter’s theory is inapplicable, as the data shows, when courts favor the “have-nots” over the “haves”. It is believed that the courts’ favor for the “have-nots” (married-out women) neutralized the party-capability advantages enjoyed by the “haves” (village collectives) and propelled the “have-nots” to victory.

Suggested Citation

Chan, Peter CH, Do the 'Haves' Come Out Ahead in Chinese Grassroots Courts? – Rural Land Disputes Between Married-Out Women and Village Collectives (January 18, 2019). Hastings Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3352346 or http://dx.doi.org/10.2139/ssrn.3352346

Peter CH Chan (Contact Author)

City University of Hong Kong (CityUHK) - School of Law ( email )

6/F, Lee Shau Kee Building
Kowloon, Shatin, New Territories
Hong Kong

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