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

-- By MeiqiangCui - 23 May 2012

Chinese judges’ duties are profoundly different from their US counterparts. Their goal, according to the Chinese government, is to guarantee the satisfaction of the parties and make litigation a tool readily accessible for everyone. But if law is a weak social control, court probably should not be the major forum to resolve disputes.

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.

The Bonus System-Law as a Major Social Control

Several of my friends, all of them Chinese trial court judges, described to me how their bonus is to be determined. In the Beijing court system, a judge’s year-end bonus depends on two factors: how many cases she ended this year, and how many complaints (not pleadings, see below) she received. A case is not considered ended if it is pending on review by a higher court, but is ended if the judge managed to persuade the parties to withdraw the action or reach a settlement. A litigant may complain to the court about the presiding judge. The judge’s bonus may be reduced if the litigant is not happy with the result, the procedure, or simply the judge’s attitude towards her.

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.

Thus, the judges put priority at reducing their caseload way ahead of writing persuasive opinions. It is common for a Chinese trial court judge to briefly state the facts, recite the statutes he thinks applicable, and give a conclusion that is barely supported by any reasoning. By truncating the reasoning part, the judges manage to conclude much more cases. For example, at Chaoyang district court, a judge on average decides more than 500 cases per year.

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.

Problems Resulted from Using Law as a Major Social Control

While the purpose is to encourage more people to seek help from the judicial system, the government neglects that law is a weak control vehicle. It derives its long-term power from public recognition and acknowledgement. If the readers cannot follow an opinion to see how it reaches the conclusion, they will doubt the court’s legality. Many of my colleagues, including myself, encountered opinions that were so cursorily drafted that we could not help wondering whether the court had thought through the issues. As a result, the courts’ authority in interpreting the statutes and rendering well-founded judgments declines in the eyes of professionals.

Moreover, while the judicial system is designed to be readily available to everyone, the courts’ credibility deteriorates precisely because of such accessibility. Law as a weak social control cannot-and should not-govern every aspect of people’s life. It is not as effective as culture, and far more costly to administer. Therefore, no matter how hard the judges tried to remove the conflicts, such as in divorce proceedings, in lawsuits by parents for support from issues or inheritance disputes among siblings, the parties are likely to end up feeling unsatisfied with the results, and probably also doubt the judges’ impartiality.

Perfectly put.

Comparing the Chinese Judicial System with the US Counterpart

Consequently, a question emerges when one compares the Chinese judicial system with its US counterpart: should courts serve as a major conflict resolution channel at the price of professionalism, or should courts be used only in limited circumstances where other social controls are likely to be ineffective? I think the answer depends on the society where the laws are in operation. In China, the modern legal system was developed to be a clean break from the past, not only from the past legal system, but also from the traditional culture. The Chinese government envisioned the courts to be a frontier to reshape the society. It therefore requires that courts resolve as many disputes as possible, even scarifying the part of legal analysis. On the contrary, litigation is considered a very expensive and somewhat inefficient tool in the States. The most valuable part of a judicial opinion is not its conclusion but its reasoning, which may be supported or refuted in the future. It is the reasoning that reflects the changing social values, and subtly changes the society in the long run.

Again, perfect.

Conclusion

Aside from the obvious power rooted in the enforcement mechanism, law derives its authority from conforming to people’s sense of justice. Justice, while it may be an amorphous idea, requires that the litigants and the public in general are not left in dark regarding how a court applied the law to reach its conclusion. Therefore, law is a week social control in that it cannot function properly in the absence of substantial time, financial and human resources, so that people can have faith in the systematic justice of the judicial system. Furthermore, law is a weak social control in that as a state imposed restriction, it necessarily meets stronger resistance when regulating social norms, especially concerning intimate relationships. Thus, with more and more disputes arising in China, the government probably should revise its policy using law as a major social control, allow the judicial branch to retreat from its currently too comprehensive role, and focus on building the courts’ legality through the force of reasoning.

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.

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