China's Legal System: A Bum Rap?
China's long march toward rule of law
Published: Monday, January 06, 2003
Even in the eyes of its harshest critics, China’s legal system has come a long way in just over twenty years. Two decades of reform have produced remarkable changes in institutions, laws, and practices. To mention just a few of the more significant developments: The Ministry of Justice, dismantled in 1959, was reestablished in 1979. Law schools were reopened and have trained great numbers of professional lawyers. In 1981, all of China had a mere 5,500 lawyers; in 1998, it had over 110,000. Between 1976 and 1998, the National People’s Congress adoped more than 337 laws and local people’s congresses and governments issued 6,000 regulations. In contrast, only 134 laws were passed beween 1949 and 1978. While litigation was virtually nonexistent in 1979, the total number of cases of first instance reached five million by 1996. And, perhaps most importantly, law is increasingly important in everyday life in China. Whereas during the Mao period the country was governed mainly on the basis of Party policy and administrative regulations (often passed internally and not made available to the general public), today the country is increasingly governed on the basis of publicly promulgated laws. Increasingly, critizens are willing to take on the government through administrative reconsideration and litigation. More important, they are often successful. In fact, the plaintiff prevails in whole or in part in some 40 percent of the administrative litigation cases, a rate three times higher than in the U.S.
Such changes as these are unmistakable to anyone practicing law in China. Yet, despite this progress, in the West the portrait of China's legal system continues to be overwhelmingly and exceedingly negative. Why is this so?
Responsibility for unbalanced views of China's legal system can be laid at many doorsteps. Perhaps most culpable is the media. The Western media’s coverage of China's legal system (and China more generally) is overwhelmingly negative. The focus tends to be on violations of human rights and the plight of dissidents and victims of torture and other injustices. In their reporting, Western journalists often impose their own values, and are quick to assume that actions not in accord with their values are tantamount of violations of international human rights law. Although violations of international human rights law and China’s own domestic laws are occurring with troubling frequency, international human rights law is much less definitive on many important issues than is generally assumed by non-lawyers. Needless to say, there is a crying need to report violations of human rights and other injustices whether or not they constitute a violation of international law. Yet we should not be blind to other important -- and positive -- developments. Furthermore, for the people in China, violations of civil and political rights are probably less important issues than whether courts will protect their property rights or grant them a divorce over the objections of their spouse.
Of course, the media tend to report what is "newsworthy," which in practice too often means the unusual or sensational. While we cannot expect much reporting on what is routine and usual, we can keep in mind that one news report, or even a fistful of reports, does not necessarily tell the whole story of China's legal system. Most Americans realize that, for instance, the O. J. Simpson murder trial was not typical or representative of the American legal system, nor was it a microcosm of the entire American legal system. By the same token, we should realize that sensational cases in China are only that: sensational, perhaps exceptional, cases, which do not tell the entire story of China's legal system.
The foreign business community has also played an important role in shaping the negative image of China's legal system. Foreign business executives and their trusty sidekicks, expatriate lawyers, tend to focus on immediate, practical issues primarily concerning concrete operational questions and obstacles to turning a profit. While they will usually acknowledge that China's legal system has made considerable progress in the last twenty years, the dominant theme for many is that the system remains so riddled with problems that it is questionable whether it makes sense to even speak of the system in terms of rule of law. Furthermore, business people and lawyers are likely to turn to the media to complain when the system fails to function as they expect it to, or at least hope it would. Conversely, when all goes smoothly, they are likely to take it for granted. Furthermore, the views of lawyers are likely to reflect their own experiences. The billing rates of lawyers working in major international firms is very high. Given this fact, companies are not likely to seek the advice of outside counsel except on cutting edge projects or complicated issues where the law is unclear or there are other obstacles involved. Thus, lawyers are likely to encounter on a daily basis the tough cases rather than the easy ones.
Finally, the academic world too is responsible for a generally unbalanced view of China's legal system. Political scientists on the whole have paid little attention to legal reforms. Much of the political science literature is devoted to high-level Party maneuvering, elite politics, and geopolitical issues. Nor have sociologists, anthropologists, or economists devoted much energy to exploring developments in the legal system, even when they are directly relevant to their research topics.
In part, China specialists in fields other than law may simply be following the lead of legal scholars. After all, if specialists on Chinese law dismiss the importance of legal reforms or the role of law, surely non-specialists can be excused for doing the same. Why have legal specialists been so critical and suspicious of China’s efforts to reform the legal system? The impact of Tiananmen may be one factor. Before 1989, many foreign legal scholars were relatively optimistic about the path of legal reforms. The brutal crackdown of June 1989 led to considerable soul-searching as legal specialists sought to explain why they did not see the repression coming. Having been burned once, some appear to have swung to the other side and adopted a pessimistic perspective. Whatever the reason, there is a tendency to impute the worst motives to any development and to interpret phenomena in their worst possible light, often by suggesting that the real reason behind some problematic feature of the legal system is the Communist Party and its unbridled lust for power and domination.
In addition, and perhaps more importantly, foreign legal scholars tend to measure China's legal system against the standards of a liberal democratic rule of law, and indeed often an idealized version of liberal democratic rule of law that does not exist in reality anywhere. Some scholars have participated personally in legal reform projects and the training of Chinese judges and lawyers, apparently in the belief that the projects would bring about a legal system similar to ours and that those trained in our finest institutions would carry back our values and lead the charge to implement a liberal democratic rule of law. When legal reforms do not lead to a liberal democratic order and those who return to China busy themselves with making money rather than pressing for political reforms, the foreign legal scholars are disappointed, and may feel betrayed. However, it is premature to assume that the end of legal reforms is likely to be a liberal democratic rule of law. Nor does it seem reasonable to hold Chinese lawyers to some idealized version of what lawyers should be that is not even applicable to the legal profession in the U.S. or any country.
To develop a balanced, reasonable, and comprehensive understanding of China's legal system, we must recognize that there is no single path of development and that it is unreasonable to adopt a one-size-fits-all approach to rule of law, economic development, or political reform. Similarly, we should be attuned to differences with respect to the controversial issue of human rights. One does not have to be an apologist for Beijing to appreciate that many Chinese are likely to be offended by academics, scholars, and pundits who believe they know what is best for China even though they have never been there and remain blissfully ignorant of China’s traditions, its current level of economic development, the state of its institutions, and the values of its citizens. As the Hong Kong based philosopher Joseph Chan has pointed out, Western rights advocates often denounce the appalling human rights records of some Asian countries as if their listeners were unaware of the violations in question or would want to defend them. They then quickly dismiss "Asian values" as an excuse for authoritarian regimes to commit atrocities. Chan rightly cautions against throwing the baby out with the bath water. There may be legitimate differences in values and opinions at stake, and reasonable people may reach different conclusions over some issues.
Notwithstanding the advance of global markets and the encroachment of a global culture, East Asians on the whole continue to draw a different balance than Western liberals when it comes to conflicts between individual autonomy and freedom versus social stability and the interests of the majority. Even if we take with a grain of salt the claims of authoritarian governments who profess to speak for all citizens when they offer up Asian values as an alternative to liberal values, and recognizing that liberalism is hardly universally endorsed even in Western countries, there is ample evidence to support a difference in values.
In short, we do not all share the same values. We do not all have the same vision of the good life. Nor need we. A certain amount of diversity within the general framework of human rights is valuable in that it allows for social experimentation. The challenge is for Chinese is to draw on the diversity within China and elsewhere to fashion their own version of a just society that respects human rights and allows individuals to flourish and for Westerners to learn from Asian countries and incorporate what is useful in improving the lives of people in their countries.
China’s long march toward rule of law is likely to proceed in much the same way as has the transition to a market economy. Despite opposition and the occasional setback, China’s legal system will continue to converge toward some form of rule of law. To the extent possible, the ruling regime will rely on incremental changes, testing the waters first in a series of local experiments. While not ignoring the lessons to be drawn from the experiences of other countries, reformers will be driven primarily by domestic factors and considerations in determining the pace and content of reforms. We should not expect them to do otherwise.
* * * * *
Randall Peerenboom (Ph.D., Comparative Philosophy, University of Hawaii, 1987) and J.D. (Columbia, 1993) is Acting Professor of Law in the School of Law at UCLA.
Professor Peerenboom teaches International Human Rights, Comparative Law: China, and Doing Business in China, the only transactional clinic of its kind in the United States.
Professor Peerenboom's books include China's Long March Toward Rule of Law (Cambridge, 2002); Doing Business in China (editor et al., 2000); Lawyers in China: Obstacles to Independence and the Defense of Rights (1998); and Law and Morality in Ancient China: The Silk Manuscripts of Huang-Lao (1993).