Assessing the development of law in China is a challenging proposition by any standard. One provincial government official I interviewed described current conditions with uncommon eloquence:

He continued:

To be sure, legal development does involve changing minds, and it does demand adjustment and adaptation both by officials and by citizens. Adaptation and adjustment are pressing concerns. But they are not the only, or necessarily even the most important reasons why legal development has not proceeded in the same way or at the same pace across China, up and down the Chinese administrative hierarchy or across the state-society divide.

After thirty years of reform in China, one can legitimately wonder whether individual or local experiences with the Maoist state are still relevant to the lives of ordinary Chinese. The shift to a market economy; the radical transformation of the workplace, housing, consumptions patterns; and countless other aspects of daily life leave few observational clues about the long-term consequences of three decades of Maoism. Few would question the historical importance of the Chinese revolution, but it is incumbent on students of contemporary issues to demonstrate empirically whether nearly one generation after the regime's break from Maoism, individual decisions and beliefs are still decisively linked to these historical events.

As the People's Republic of China (PRC) approaches its seventh decade, we may be even less willing to explore the relevance of the 1949 divide between the so-called “old” and “new” Chinas. Social scientists who conduct survey research in the PRC no longer can interview respondents with living memories of the Nationalist regime. Furthermore, the regime's long-standing emphasis on sharply demarcating the post-1949 political and social landscape from China's historical experience has further weakened interest in exploring whether and how antecedent regimes have had any impact on contemporary mass opinion and behavior. Yet several aspects of China's reform era compel observers to look back in search of explanations that cannot be easily rooted in contemporary institutional or cultural settings.

A major question in the law and society literature is the effect of legal experience on individual attitudes toward legal institutions, in particular the court system. Positive attitudes and confidence in the legal system are important for generating citizen trust and confidence in government generally and also for inculcating citizen values and behavior that support the rule of law and encourage legal (and peaceful) resolution of disputes and grievances more specifically. Thus, these values are important for sustaining democracy. For a country like China, in transition from state socialism, in which legal modes of governance and social control were less common than administrative edicts, Communist Party campaigns, and state repression, attempts to build an effective legal system are also linked to limited political reform. Rule of law building is the Chinese Communist Party's (CCP) attempt to build more effective and efficient governance, while making an end run around democratization and the sharing of political power. In this case, creating positive citizen attitudes toward the legal system is part of a strategy to avoid democracy.

In this chapter, we examine how experience with the legal system affects Chinese citizens' evaluation of the courts through a series of comparisons between those who have used the law to resolve an employment dispute and those who have not as well as comparisons between disputants who remained positive and confident in the legal system and disputants who were fully disillusioned and negative.

Gruesome media accounts from both China and abroad on the performance of Chinese legal institutions, perhaps best exemplified by the Pulitzer Prize–winning series on “ragged justice,” are consistent with scholarly reports of pervasive travesties of justice in the court system and abuses of power in the police system. Notwithstanding this conventional story of endemic failures in China's legal system, survey evidence tells the opposite story: highly positive popular perceptions of – and an overwhelming popular willingness to mobilize – both the courts and the police. Which of these two seemingly contradictory stories is correct? In this chapter, we use survey data from Beijing and rural China on popular perceptions of official justice and on firsthand assessments of encounters with official justice to argue that the story of upbeat perceptions and the story of downbeat encounters paradoxically are both correct.

Our analysis is divided into two steps. First, we analyze general perceptions of the performance of the legal system. Here we consider public attitudes toward, popular confidence in, and popular support for official justice – defined in this chapter as the courts and the police. Second, we analyze personal assessments of direct encounters with official justice. Whereas the first analytical step encompasses all individuals regardless of whether or not they reported prior experience in the legal system, the second is limited to aggrieved individuals who brought their grievances to some part of the legal system.

As has often been pointed out, “China's major problem is still the rural problem, and one of the most important tasks of the modernization of Chinese society is the modernization of rural society; anyone who is really concerned about the happiness and sorrow of the Chinese people is certainly concerned about the life of those people at the bottom of the society.” China's growing gaps between urban and rural areas and between rich and poor continue to challenge China's legal reforms. Whether China becomes a rule of law state will depend on whether legal reforms can reach deep into the rural population.

This chapter examines “grassroots” legal services in China's rural areas. “Grassroots level” refers to cities and districts at the county level, township, town, and subdistrict offices, and the so-called “detached judicial tribunals.” “Legal services” include a range of activities from legal representation in litigation to the handling of nonlitigation legal matters, mediation of disputes, assistance in notarization and testimony, legal consultancy, and assistance in the writing of legal documents. Grassroots legal-services offices provide legal services to a wide range of clients from governmental agencies, self-governed mass organizations, government-sponsored institutions and enterprises, social entities, and individual businessmen, partnerships, and citizens within the jurisdiction.

In analyzing grassroots legal services, we find a complex relationship between these offices and other state administrative organs (local justice offices – the sifabu), state judicial organs (grassroots people's courts), self-governing mass organizations (people's mediation commissions), and other legal-services institutions (legal aid and law firms).

The Old Latin maxim ex oriente lux, ex occidente lex (from the East, light; from the West, law) evinces a deep assumption about the relationship between the East and law – that is, although civilization began in the East, the West is the source of rationality and law. Indeed, much of this assumption lies in present-day “rule of law” programs as they are often transported from the West to transitional economies in the East and South. Rule of law, with its rationality and predictability, is said to be fundamental to a market economy. Its ability to check abusive arbitrary powers is believed to go hand in hand with democratic polities. Pointing to today's industrial democracies, reformers have concluded that rule of law is necessary for economic development and political liberalization.

Yet the challenges to these assumptions are numerous, ranging from whether there is such an East/West divide and, if so, whether the East is really antithetical to law; to the definition of “rule of law” itself and whether legal institutions are indeed transplantable. Furthermore, even as the rule of law has become a new rallying cry for global missionaries, reformers recognize that the rule of law is an exceedingly elusive notion. If “it is not already firmly in place, the rule of law appears mysteriously difficult to establish.”

In its thirty years of economic reforms, China has challenged the pairing of law, markets, and democracy.

Is the Chinese party-state too responsive to public opinion? In the case of the courts, this may be the case. Western literature has devoted extensive attention to the problems in the Chinese legal system, in particular in the courts, describing a system that continues to be undermined by a range of problems, from corruption to lack of competence to continued Communist Party intervention. Likewise, existing literature describes a legal system that often is unresponsive to individual demands for justice. In this chapter, I examine another possibility: that one impediment to the development of courts that are able to protect individual rights is that courts are too responsive to protests, petitions, and public opinion.

This chapter presents evidence that protesting, petitioning, or simply threatening to do either often is a successful means for litigants to pressure courts to rule in their favor or to alter decided cases. The ability of individuals to influence court decisions through petitioning is linked to other better-known problems in the Chinese legal system. Courts' sensitivity to the threat of unrest reflects the facts that party officials continue to interfere in court decisions and that individual judges and court leaders are dependent on party officials for their positions. Sensitivities to popular opinion and to individual protesters also reflect a political system that has placed tremendous emphasis on maintaining social stability.

INTRODUCTION

Local Chinese courts commonly use responsibility systems (mubiao guanli zeren zhi, zeren zhuijiu zhi) to evaluate and discipline judges. Judges receive sanctions under these systems for a wide range of behavior, such as illegal or unethical dealings with parties and lawyers, inappropriate courtroom behavior, and neglect of duty.

Many local court Chinese responsibility systems also discipline judges for simple legal error. Judges may face sanctions linked to the number of cases that are reversed on appeal simply because the interpretation of law made by a higher court differs from that of the original trial judge. Sanctions include monetary fines and negative notations in a judge's career file. Such practices violate Chinese Supreme People's Court (SPC) judicial directives specifically barring the use of responsibility systems to sanction judges for simple legal error. Local Chinese courts, however, have continued to promulgate such systems.

Court responsibility systems that discipline judges for simple legal error also create a perverse set of incentives for Chinese judges. To avoid appellate reversal, lower Chinese courts and judges rely on an ill-defined system of advisory requests (qingshi) to solicit the views of higher courts and judges on how to decide pending cases. As Chinese judges themselves note, excessive resort to qingshi practices has many negative effects. It undermines appellate review, because the court or judge that reviews the case on appeal may have responded to the initial qingshi request regarding how to decide the case in the first place.

The development of the legal profession in China since 1978 has been largely a modernization story of economic development. The transition to a market economy stimulated the demand for lawyers. Conversely, lawyers contributed to economic growth, both directly through their work on commercial transactions and protecting property rights, and indirectly by promoting, along with other legal professionals, legal reforms aimed at implementing rule of law and establishing the institutions necessary for a market economy. As such, the development of the legal profession and its relationship to the market in China is broadly consistent with experiences in other countries.

However, whereas China and other East Asian countries lend support to modernization theories, they have also diverged from the more classical straight-line versions whereby all states end up with Euro-American liberal democracy. Hong Kong, Singapore, Japan, South Korea, and Taiwan are all economically wealthy countries with legal systems that rank high on rule of law indices and protect both property and non-property rights reasonably well. Yet some of them continue to be nondemocratic, or somewhat dysfunctional democracies, and on the whole less liberal than their economically advanced Western counterparts. Moreover, these East Asian states have not always followed the prescribed path with respect to political reforms, economic policy, or institutional development, including the development of the legal profession.

Much of the concern of Western scholarship on the legal profession in China, and East Asia more broadly, has been on the role of the legal profession in political reforms.