Chair: Randall Peerenboom, UCLA School of Law

Organizer: Martin Dimitrov, Dartmouth College

Discussant: Randall Peerenboom, UCLA School of Law

Scholars are divided in their assessment of the progress China has made towards establishing a system of transparency, predictability, and fairness associated with the rule of law. Some remain pessimistic, stressing obstacles like local party-state interference, judicial corruption, and the low quality of court personnel. Others interpret developments such as the passage of hundreds of new laws, the rise in the number of legal professionals, and the increase in legal consciousness and overall litigiousness as reasons for optimism about China’s march toward the rule of law. This panel goes beyond such dichotomous views of the current state of legal reform in China and argues for disaggregating the rule of law into more nuanced categories. Relying on extensive fieldwork, two legal scholars and two political scientists analyze the conditions under which the rule of law may emerge in some parts of China in specific issue areas. Specifically, Martin Dimitrov’s paper first disaggregates the rule of law into its component parts and then presents case studies of the conditions under which it can emerge in different issue areas. Mary Gallagher analyzes the generational divide in labor disputes in Shanghai and shows that a legal consciousness is emerging among younger plaintiffs of the post-reform generation. Neysun Mahboudi focuses on the growing pains of administrative litigation, highlighting its potential for introducing political pluralism. Finally, Margaret Woo examines the regional variation in the effects of markets on the delivery of civil justice. Collectively, the four papers call for a deeper, context-sensitive analysis of China’s progress towards rule of law.

Disaggregating the Rule of Law in China
Martin Dimitrov, Dartmouth College

This paper argues against broad generalizations of the presence or absence of the rule of law in China, proposing instead to disaggregate the concept of the rule of law into different categories and subtypes. First, we have to distinguish between the political rule of law and the economic rule of law. While modern Western democracies have both the political and the economic rule of law, China’s experience may mirror the path of countries where the rule of law developed in the economic sphere first, and spread to the political sphere only gradually. Second, both the political and the economic rule of law can either obtain countrywide or be geographically limited to only some parts of a country. Third, within the geographically-limited/universal political and economic rule of law we may draw a final dividing line: issue-specific rule of law v. universal rule of law. One illustration of those divisions would be the claim that the city of Shanghai has geographically-limited rule of law in the economic issue area of contract enforcement. This paper analyzes the conditions under which such pockets of the rule of law can emerge in China by focusing on a range of different economic (intellectual property rights, environmental protection, and securities regulation) and political (corruption prosecution and administrative litigation) issue areas. The paper also outlines a causal mechanism through which the geographically-limited issue-specific rule of law can spread over from the economic to the political sphere, and, eventually, transform itself into universal, countrywide, political-economic rule of law.

Mary Gallagher, University of Michigan

Many scholars of post-socialist regimes have pondered the existence and effects of a generational divide between those coming of age during reform and transition and the older generations who were more deeply embedded in socialist institutions.  This paper examines a group of labor dispute plaintiffs in Shanghai who despite all being poor and not well-skilled showed dramatic variation across age in their patterns of legal mobilization and in their modes of evaluation and appraisal of the legal system.  The paper examines competing explanations for this generational divide, including institutional variation at the workplace (work-unit model vs. company model) and age effects (education and skill specificity).  The paper argues that these generational differences indicate profound changes in the state-society relationship in China. The post-reform generation makes fewer demands on the state to provide social welfare and stable employment, but they also make new and difficult demands of the legal system, including fairness, transparency, and due process.

Neysun Mahboubi, Yale Law School

In this paper, I provide a detailed picture of the phenomenon of administrative lawsuits (public tort suits) against Chinese state entities in the sixteen years since the law formalizing this legal mechanism was introduced.  Specifically, I describe the litigants who bring these suits, the types of claims that are filed, the reasons why this avenue for redress is utilized, the manner in which these cases are litigated, the response of defendant government entities, and the results that are being obtained.  In assessing these findings, I argue, in the first instance, that the prospect of litigation alone simply cannot deliver any meaningful constraint on official behavior in an authoritarian state that (by definition) lacks the political pluralism essential to checking official abuse in democratic contexts -- and accordingly, that the manifold distortions evident with respect to administrative lawsuits in China are only to be expected and impossible to correct by technical legal reforms.  I further suggest, however, that the process of administrative litigation, along with the discourse surrounding it, is helping to facilitate -- in sometimes direct, but mostly subtle ways -- precisely the sort of political pluralism necessary for real constraint on official behavior to emerge in China.  This article draws on extensive interviews with Chinese lawyers, judges, officials, and law professors conducted in 1999, 2001, 2003, and 2005.

Margaret Woo, Northeastern University School of Law