This collection of essays, the result of a conference at Harvard in 2007, is a welcome contribution to the small body of interdisciplinary research that is deepening insights into the contested role of legal institutions in Chinese society. The social scientists and legal scholars who wrote these essays focus on understanding “law in action” as opposed to “law on the books.” By raising issues about the reform of civil justice over the last 30 years and about the recent policy-dictated retreat from those reforms, they add dimension to speculation on the future course of legal reform.
The book provides valuable readings for use in courses on Chinese law, Chinese politics, and Chinese society. Its three major sections examine legal institutions, popular perceptions of the legal system, and how law is used in civil society to categorize and resolve “everyday disputes” (p. 15).
In the first section, two essays focus on the courts. Fu Hualing and Richard Cullen trace policies toward dispute settlement, which has most recently turned away from reform of civil justice to mediation in order to maintain social stability in a “harmonious society.” Carl Minzner, in setting forth in detail the system for discipline of judges, illuminates the Chinese conception of the courts as bureaucratic organizations much like other agencies of the Chinese state.
In a groundbreaking essay on “administrative legality,” Douglas Grob dissects the little-understood but important role of the local legal affairs offices (fazhiban, here FZB) that are charged with monitoring the consistency of legal norms adopted at subnational levels of the Chinese state. He finds that FZBs may act as mediators between the local government and higher levels in interpreting the implementation of national laws and, sometimes, help settle disputes between local agencies at the same level. He examines the complex interaction between the process of reviewing administrative decisions, known as “administrative reconsideration,” and judicial review of disputes arising from that process. He also notes that the FZB may both reinforce and make citizens aware of procedural legality.
The first section ends with Randall Peerenboom's study of the correlation between economic development and the legal profession, emphasizing geographic and economic disparities in access to professional legal assistance, regulation of the profession, the lack of sophistication among potential clients, and the necessarily slow pace of development.
In the second section three essays based on survey research explore various aspects of popular attitudes toward law. History is considered by Pierre Landry, who examines popular trust in selected counties and finds trust of the courts highest in areas that were ruled longest by the Kuomintang (KMT). In their study of popular attitudes toward official justice, Ethan Michelson and Benjamin Read find an incongruity between “upbeat” general perspectives and “downbeat” experience-based assessments. They also find that in their surveys, unlike the results of a comparable survey in the United States, respondents “conflated procedural justice with distributive justice” (p. 171). In other words, if they won, they thought well of the system, but if they lost, they blamed the system without attention to the fairness of the procedures utilized. Mary Gallagher and Yuhua Wang studied workers involved in labor disputes and found that they usually lack knowledge of legal procedure or their rights, but with involvement they acquire some legal knowledge and greater self-confidence in solving disputes (p. 212). Respondents who were legal plaintiffs found the system less responsive and less effective than they expected.
Sida Liu explores some implications of the growing professionalization of the legal profession. Specifically, lawyers are often difficult to understand because they have increasingly developed “a disinterested and rigid manner of providing popular legal advice” (p. 261). By contrast, grassroots legal workers, both those in legal assistance centers and other citizens who provide advice even though they are not legally authorized, communicate better with rural residents.
The third section begins with Benjamin Liebman's discussion of populist pressures on the courts. Complaints about the courts can impel them to modify their decisions, rehear cases, or pay petitioners. Judges know that they must assuage petitioners because their promotions and salaries are tied to their ability to resolve cases without generating petitions. The autonomy of the courts is fragile; political ideology and stability continue to take precedence; and procedural regularity is impaired in the interest of substantive justice.
Fu Yulin surveys the system of grassroots legal services created in the 1980s to provide needed legal services and finds that it fails to receive adequate support and organization. It may be, he concludes, that a diversified dispute-resolution model is necessary and the legal services offices must be responsive to “the diverse needs and remands of the various regions” (p. 339).
Thomas Kellogg discusses attempts to judicialize the constitution through litigation that invokes constitutional principles even though the constitution has been declared nonjusticiable, with the most recent cases involving plaintiffs denied employment because they are infected with hepatitis B. Kellogg is not optimistic about prospects for success of attempts to make the constitution an effective source of justiciable rights.
In her conclusion, Margaret Woo reprises major emphases of the various chapters. Some of the findings in the volume suggest that the closer a dispute is brought to the legal system, the less positive the plaintiffs will feel about the experience. Rights education may be counterproductive because expectations will be too high. A lack of procedural justice further contributes to litigants' disenchantment. Access to justice can shape a legal culture that is conducive to asserting rights, but if litigation results in denial of a claim of violation of rights, “the experience of disempowerment goes beyond the outcome of the dispute” (p. 392).
Woo concludes forcefully. She argues that the essays in this volume have exposed unmet expectations, the impact of historical determinism, the fragmentation of different sources of law, and alienation from law as a byproduct of lawyers' professionalization. Greater participation and rights consciousness do not necessarily create better justice. Woo would like to see mechanisms for dispute resolution raise citizens' consciousness of their rights and thereby change China's legal culture. She goes so far as to say that “legal technicalities have replaced legal justice” and concludes that until law reformers become more aware of these issues, it will be impossible to gauge the future of the role of law and courts in China.
