Law as a Weak Social Control-Why the Chinese Judicial System Should Change

That governmental social control is weak has been the primary political principle of Chinese governance since Shih Huang Ti. Law behaves in ways that are designed to make it appear stronger than it is: more omniscient, more omnipresent, less corrupted by the abuses of local officials and the thugs they use to project their power. It resorts to harshly exemplary measures: to use Voltaire's phrase, it shoots some in order to encourage the others.

This is not characteristic of the CCP more than it is a consistent result of the demographic immensity and geographic vastness to which Chinese government has aspired for millennia.

This is a customer service approach to litigation, and it makes sense that civil litigation, in which the State is apparently only a neutral umpire, would tend in this direction if one invented it from scratch. Criminal justice, of course, in which the state is an interested party, tends in such a system to work in a particularly oppressive fashion entirely consistent with the customer-satisfaction approach to civil litigation among non-state parties (civil litigation involving state or quasi-state parties, like for example a large business controlled by the PLA, or run by a well-connected prince will of course conform to a non-neutral model). Rule of law principles in the English-speaking world hinge on the independence of the judiciary, which is intended to preclude both models.

Reason-giving is only impossible to scale if the judge doesn't have assistants to help give reasons, hence the presence of law clerks in US chambers, and hence also the intimate structure of the relationship between the judge and the temporary assistant reason-givers who prepare draft opinions. The workload of a federal district judge in the US is not smaller than your Chaoyang example. But there are orders of magnitudes fewer such judges in the US, working on cases involving substantial legal issues or large sums of money, and they are expensively maintained in complete political independence. All of these are unthinkable under Chinese circumstances.

Meanwhile, to avoid disappointing one party, the judges often prefer to use court mediation to settle the disputes. Court mediation sometimes proves to be efficient, as lots of litigation in China is about trivial or intimate matters for which there are inherently no satisfying answers from the legal perspective. For instance, many couples use the court as a channel to voice their dissatisfaction towards each other. They want the judges to be more of sympathetic listeners than judicial authorities .

This is an example of the tendency of State organizations to accumulate functions performed by civil society institutions (including churches, as well as therapists and other health workers) in other societies where the State tries less hard to dominate. Where the State views civil society institutions (like exercise and spiritual communities, for example) as suspicious to the point of being existential threats, its own institutions will become the only available locale for the mediation of social stress. It will undertake that effort in the broad general interest of "stability maintenance," and it will perform outstandingly badly. This has been one of the primary problems of Chinese society since 1949, because modernization puts overwhelming stress on, or eliminates, traditional alternatives, and the State winds up ever more responsible for functions it is ill-suited to perform.

As an extreme example, in a divorce proceeding, the wife insisted that her husband sit in front of the judge and she read out a list of items she bought for the family, detailed to the number of hangers. While court mediation may improve parties' satisfaction towards the court, it has its own price. Overuse of court mediation produces a large amount of the judicial opinions containing nothing but the settlement arrangements. The mediation process, each party's legal basis, or the court's assessment of such basis will not be recorded.

Perfectly put.

Again, perfect.

A very thoughtful and capable analysis. You see the difficulties precisely. Figuring out how to cope with them is a very important problem for Chinese government in the next ten years. The outlook is not particularly favorable. Corruption is a separate and crucial part of the story, which you had no need to discuss here, but which conditions negatively the nature of the possible solutions and the outlook for their execution. Eliminating corruption of State processes, however, is among the traditional difficulties of the Chinese State. Efforts in that direction are always subject to political distortion, and even if the next decade is spent trying to root corruption out, so as to allow better economic performance as well as reforms throughout pub administration, the effort is likely to fail. This is one of the many limitations experienced in thinking about the problem. But you have characterized the problem with a clarity that is a major achievement in itself, and is indispensable in crafting partial as well as ambitiously complete solutions.