Evan Osnos of the New Yorker wrote a fantastic post on his blog yesterday about Rule of Law and what’s going on in China’s courts. This is of course a topic I’ve been writing about for years, so I’m loving it.
The post is mostly a set of observations, not specific conclusions, so I’m not going to give a play-by-play and then include my commentary. However, I’ll throw out a few quotes and add a little perspective from what I know working and talking to litigators over the years, and how this relates to some “big picture” economic and political issues.
To start off with, it’s interesting that the post title is “Is China Giving Up on Western Rule of Law?” A fascinating question is whether “Rule of Law” as a concept can encompass “Western” and “Eastern” types or if it is simply a single concept that is either followed or not by a given nation. I think I’d lean towards the latter, that Rule of Law should be viewed the same way in China than it is in the U.S. or other Western nations. That’s a very complicated topic, though, so I’ll leave that alone for now.
The main point of Osnos’ post is the following:
I’ve noticed a number of recent comments that China has not simply slowed down the process of opening up, but has, in fact, mothballed previous attempts to improve Chinese courts as a site of conflict-resolution[.]
From reading the rest of the post, I get the feeling that “opening up” is not a reference to China’s economic policy, but simply another way to talk about reform. Osnos is not writing about anything more than the legal system, as far as I can tell.
So is the government really pulling back from Rule of Law? Let’s take a look at a few arguments.
First, Osnos takes a bit from a recent Financial Times article about the crackdown against activist lawyers. I’ll use the entire graph since it gives you a bit more context:
There is an ideological element too to the move against lawyers, a post-Lehmans drift away from western ideas of rule of law. Legal experts say there is renewed support for civil cases to go to mediation, a process conducted by a Communist party official, rather than to court – party wisdom trumping the law.
A couple of things here. Yes, there has been a move towards mediation in this country. But it’s not exactly a system designed to replace judges with party apparatchiks — Osnos notes this later in his post. Additionally, referring to the entire group of civil cases in this country is slightly misleading. The lawyers who have been locked away are not filing run-of-the-mill commercial disputes, but rather highly charged cases with political repercussions. I would argue that once these cases are separated out, the remaining majority of civil cases, and the legal system that processes them, measured up quite well in terms of Rule of Law.
Second, Osnos talks to some Beijing-based lawyers, who tell him that mediation in civil cases has been pushed harder in recent years, and that there is a policy goal at work here:
One aspect of this is mediating cases at the grassroots, community level to decrease the number of disputes that turn into litigation.
This is absolutely true and definitely is, as Osnos later suggests, part of “harmonious society” reforms. In addition to practicing lawyers, government officials are quoted on the push for increased mediation:
I visited a local community that had gained some national renown for its success in mediating disputes. The head of the neighborhood committee proudly called his community a “zero litigation” [district] … and also highlighted that there hadn’t been a single petition filed from his community in the last year.
Playing a gentle Devil’s Advocate here, I would simply point out that when it comes to grass-roots petitions, one can file a grievance and maybe get nowhere with it, or one can go through the mediation process. I don’t think one path is necessarily better than the other; it depends on the local rules and, even more important, the individuals hearing disputes. Is mediation a way for the government to keep things quieter? Yes, but that is not exactly a repudiation of Rule of Law principles, but something else entirely.
I’ll no doubt repeat this again in this post, but let’s keep in mind that mediation, as a procedure, is not antithetical to the Rule of Law. It is an alternative procedure that can be good or bad, depending on how it is implemented.
Third, Osnos does a fantastic job of distinguishing between the type of grass-roots mediation described above and court-based mediation overseen by judges. At the risk of sounding patronizing, I would not expect this sort of delineation from a non-lawyer journalist, so I give the post a huge thumbs up for doing so. Here’s the relevant quote:
There has also been a big push within the court system itself to resolve cases through mediation, with judges acting as mediators. Some local courts have even incorporated the number of cases successfully mediated as one measure of judges’ work performance.
If you’ve read this blog on and off for any length of time, you’ll know that it is this judge-based mediation that I usually write about. I don’t really have any experience outside of formal legal disputes. With that in mind, I first starting seeing this with IP clients a number of years ago, who came to me and complained that judges were telling them to settle cases or risk having them go into a judicial limbo.
I also used to see a seasonal push to clean dockets around Spring Festival, when judges tried to use settlement to clean the books before the end of the year. This has since spread to all kinds of civil cases, where judges are being pressured to keep down the number of cases that reach formal judgment. Moreover, Chinese litigators bear the brunt of this, with judges essentially ordering them to get their clients to settle “or else.” When your career hinges on making a small number of judges in town happy, well, the pressure on those litigators is significant.
All right, this is running long. Where does Osnos come down on all this? While distancing himself from the FT article, which suggested that Party ideology was at play here, he does agree that China is moving away from Rule of Law:
[. . . ] in the sense that the push to increase mediation is part of a larger trend away from formal, legal processes and the more transparent recognition and displaying of conflict that they can represent. As for the larger overall drift away from rule of law, I would agree with that.
I think part of this comes down to how we look at mediation itself as compared to court action. One thing I remember from studying this in law school is that the concept of mediation, as a form of alternative dispute resolution, took a long time in the West before it gained traction.
Why? Several reasons, but one that is important to this discussion is that we (Western folks, and particularly those from Common Law jurisdictions like the US and UK) have a natural bias towards litigation as a way to solve problems. This is historical and cultural.
I’ve talked to people in the past who literally see mediation as some sort of hippie concept adopted by cheap companies and lawyers too scared to go into a courtroom and fight things out. I think that’s indicative of a certain point of view, although I don’t think it is shared by Osnos.
If we instead look at mediation as simply an alternative to litigation, then we have the ability to look at pros and cons of each system, and to consistently reform both procedures. Keep in mind that mediation is in its infancy here in China (brand-spanking new mediation law here, by the way), so whatever faults exist, one would hope that these can be minimized or done away with entirely through future legislative fixes.
Another important factor here is that local governments and the courts have been deluged by disputes in recent years as the economy has chugged along. Despite what you may have heard, Chinese folks are extremely litigious people. I’d stack them up quite favorably in that regard against Americans.
A great deal of fantastic experimentation has been undertaken in the past few years when it comes to alternative dispute resolution, local petitions, transparency, and so forth. This is the Central Government’s way of acknowledging that there are both a lot of commercial disputes that need to be resolved to keep the economy moving ahead, and also a lot of pissed off folks with real problems (with land, the environment, etc.) that need to be dealt with.
Mediation can be used to avoid resolution of disputes that the government would rather be kept quiet. On the other hand, it can be a low-cost alternative to litigation that helps judges and local officials get their jobs done. Again, it all depends on how the system is implemented.
So does this push for mediation suggest a reversal of Rule of Law initiatives? On the whole, I’d say no. I’m not thrilled that my clients are being pressured to settle cases in the name of the “harmonious society.” On the other hand, courts are awash in civil cases, and these new forms of resolving disputes need to be attempted. At the end of the day, one hopes that this will actually strengthen, not weaken, the Rule of Law.
© China Hearsay, 2011. |
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