WUSTL

Growing unrest leads Chinese authorities to turn against formal law

Judges pressured to avoid issuing decisions that might result in protests
By Jessica Martin

In the late 20th century, Chinese authorities enacted sweeping legal reforms, but in recent years, officials have stepped back from these reforms in the face of increasing citizen protests and concerns about social stability.

Minzner

“Horrified by the chaos of the Maoist era, Chinese authorities rebuilt their legal system in the 1980s and 1990s,” says Carl Minzner, JD, leading expert on Chinese law and politics and associate professor of law at Washington University in St. Louis.

“They trained judges in law. They allowed lawyers a degree of autonomy to represent their clients. They emphasized the need to resolve disputes in court — and according to law — rather than through politicized struggle sessions.

“They even enacted administrative laws giving citizens limited rights to challenge the power of local officials. Central to all of these efforts: a search for stable institutions to resolve citizen grievances, albeit under firm party control.”

Now Chinese Party and court authorities have begun to move away from the reform track of the last several decades, reasserting tighter control over the Chinese judiciary, restricting the activities of public interest lawyers, and resurrecting earlier mediation practices.

Minzner says that China’s turn against law is a top-down authoritarian political reaction to growing levels of social protest and conflict in the Chinese system.

“This turn against law is dangerous. It is eroding the very institutions Chinese authorities themselves attempted to construct in the late 20th century as a bulwark against social instability.”

Minzner argues that the official shift away from law carries real risks for China.

“In addition to the classic concerns about the rights of parties, the role of the judiciary and the legitimacy of legal institutions, Chinese judges are being told to — at all costs — avoid issuing decisions that might result in citizen protests, petitions or complaints to higher authorities,” he says.

“Judges’ careers and salaries are being tied to attaining mandatory target rates for successful mediations.”

In contrast, Chinese judicial salary and advancement rewards in the 1990s were strongly based on their rates of issuing judicial decisions in cases.

Since the early 2000s, Chinese judicial authorities have strengthened the target mediation ratios that judges and courts are expected to attain.

According to Minzner, Party officials are also advancing new propaganda models for Chinese judges to emulate.

“Judge Chen Yanping, selected as a national ‘model judge’ in 2010, has been hailed by state media for resolving over 3,100 cases in 14 years, without a single petition by a dissatisfied party, nor a single reversed case,” he says.

“Her secret? Avoidance of law, adherence to party doctrine, and an unflagging determination to press for a mediated settlement in absolutely every case that comes before her.

“This is not mediation,” Minzner says. “Rather, it is political pressure disguised in mediation garb. And it is has severe effects. Some Chinese judges complain of having to resort to arm-twisting of parties to reach their mandatory target ratios for mediation. Others report throwing legal norms out the window entirely, or even using their own court budgets to pay off disgruntled parties who threaten to stage protests.”

Minzner says that law has not been completely abandoned in China.

“Authorities continue to promulgate statutes,” he says, while “citizens continue to invoke legal norms to protect their interests. There is still some room for progressive legal reform.”

Minzner’s article on the subject, “China’s Turn Against Law” is available at papers.ssrn.com/sol3/papers.cfm?abstract_id=1767455. A related blog post is available at sinolaw.typepad.com/chinese_law_and_politics_/2011/03/chinas-turn-against-law.html.
 

MEDIA CONTACTS
Jessica Martin
Executive Director, Strategic Communications
(314) 935-5251
jessica_martin@wustl.edu