China's Turn Against Law

Chinese authorities are reconsidering legal reforms they enacted in the 1980s and 1990s. These reforms had emphasized law, litigation, and courts as institutions for resolving civil disputes between citizens and administrative grievances against the state. But social stability concerns have led top leaders to question these earlier reforms. Central Party leaders now fault legal reforms for insufficiently responding to (or even generating) surging numbers of petitions and protests. Chinese authorities have drastically altered course. Substantively, they are de-emphasizing the role of formal law and court adjudication. They are attempting to revive pre-1978 court mediation practices. Procedurally, Chinese authorities are also turning away from the law. They are relying on political, rather than legal, levers in their effort to remake the Chinese judiciary. This Article analyzes the official Chinese turn against law. These Chinese developments are not entirely unique. American courts have also experienced a broad shift in dispute resolution patterns over the last century. Litigation has fallen out of favor. Court trials have dropped in number. Alternative dispute resolution mechanisms have increased. Observing such long-term patterns, Marc Galanter concluded that the United States experienced a broad "turn against law" over the twentieth century. China's shift also parallels those in other developing countries. In recent decades, nations such as India, Indonesia, and the Philippines have resuscitated or formalized traditional mediation institutions. This is part of a global reconsideration of legal norms and institutions imported or transplanted from the West. Despite these similarities with global trends, this Article argues that Chinese leaders' shift against law is a distinct domestic political reaction to building pressures within the Chinese system. It is a top-down authoritarian response motivated by social stability concerns. This Article analyzes the risks facing China as a result of the shift against law. It argues that the Chinese leadership's concern with maintaining social stability in the short term may be having severe long-term effects undermining Chinese legal institutions and destabilizing the country. Finally, this Article argues for rethinking the trajectory of Chinese legal studies. Scholars need to shift away from focusing on formal Chinese law and legal institutions in order to understand how the Chinese legal system actually operates and to recognize the direction in which it is heading.