Song fa xiaxiang: Zhongguo jiceng sifazhidu yanjiu.

• Author: Upham, Frank K.
• Position: Book Review

Song fa xiaxiang: Zhongguo jiceng sifazhidu yanjiu [Sending Law to the Countryside: Research on China's Basic-Level Judicial System]. By Zhu Suli. * Beijing: The Chinese University of Law and Politics Press, 2000. Pp. 466. Renminbi 29 [$3.50].

CONTENTS INTRODUCTION I. DATA AND ANALYSIS A. The Judicial System 1. Judicial Independence and the Adjudication Committee 2. Who Makes a Good Basic Court Judge? B. Judicial Knowledge and Techniques 1. Two Judicial Narratives a. The Field Ox Case b. The Irate Husband Case 2. Caught Between Society and Law 3. Judicial Craft at the Basic Level II. INTERPRETING SENDING LAW TO THE COUNTRYSIDE A. Zhu's Theoretical Assumptions and the Absence of Politics 1. A Realist and Modernist 2. The Absence of Politics and Political Power B. Chinese Basic Court Judges and Law and Development 1. Chinese Basic Court Judges and the Formalist Rule-of-Law Model 2. Chinese Basic Court Judges and One View of American Judges 3. Chinese Basic Court Judges and the Bureaucratic Model CONCLUSION INTRODUCTION

According to Zhu Suli, the dean of Beijing University Law School, the rule of law has replaced Maoist revolution as the blind faith of the Chinese masses. Like most faiths, its popularity rests on a fair amount of ignorance and superstition, but Zhu is convinced that it will remain China's secular religion for some time to come. To address that ignorance, to expose what he considers vast gaps in the Chinese people's knowledge of their own society and law, and to provide empirical and theoretical insights into legal reform in modernizing societies, Zhu wrote Sending Law to the Countryside: Research on China's Basic-Level Judicial System, an empirical study of the lowest levels of the Chinese judiciary. (1)

Despite its origins in a Ford Foundation rule-of-law grant, the book is a polemical attack on orthodox thinking on the rule of law and the direction of Chinese legal reform. Zhu attacks Chinese legal scholars as enamored of trendy Western theory and ignorant of the role of law in Chinese society outside of Beijing and Shanghai. His critique and his colleagues' responses provide a window into contemporary Chinese legal scholarship, but the relevance of his analysis extends beyond China to include the entire rule-of-law movement and the conventional wisdom on the role of legal institutions in social modernization. His rhetorical style exudes complete confidence despite data that might be considered selective and anecdotal, and his tone swings from a preachy "I am more of the people than you" populism to a pedantic combination of Western theorists from Foucault to Posner. In other words, Sending Law to the Countryside is irritating and fun. It is also important.

Zhu's call to China to emphasize its "native resources" rather than Western models in building its legal system has been controversial within China, where borrowing from the West is conventional wisdom. Unlike many opponents of westernization, however, Zhu is neither xenophobic nor romantic. He does not essentialize China, and he emphatically rejects appeals to Chinese tradition, "Asian values," or guanxi. (2) Thus, Zhu does not resort to the usual tactic of rule-of-law critics--an all-too-easy dismissal of Western law as unsuited to Chinese (or African or Latin American) conditions followed by a hopelessly vague call for homegrown solutions. Instead, he gives a detailed picture of how rural judges operate in particular disputes; tries to determine what makes them do what they do; and reaches tentative judgments about which practices are valuable, which objectionable but temporarily unavoidable, and which fundamentally inimical to ongoing legal reform. Although Zhu never talks of the value of his research beyond China, it is likely that at least some of the problems, practices, and techniques of rural Chinese judges are repeated in poor societies elsewhere. At its best, Sending Law to the Countryside gives us both an in-depth look at contemporary Chinese society and a case study in legal modernization.

It does so, however, within the political limits of the People's Republic of China (PRC) as set by the Communist Party. There is little attention to the influence of the Party on the courts or, conversely, to the role of the courts in maintaining the communist regime. Although the book is not a paean to communist rule, it is virtually silent on the role of political power. It is possible that Zhu's silence is a reflection of the general lack of attention to power's role in legal scholarship everywhere, but it seems more likely that he is deliberately avoiding the subject. (3) Whatever his reasons, the absence of politics from the analysis is a serious shortcoming that detracts from both the academic value and the policy relevance of the work.

Part I of this Review summarizes Zhu's data and analysis and presents his main arguments. With few exceptions, the descriptions, conclusions, and normative judgments are Zhu's, not mine. Part II places Sending Law to the Countryside in the context of comparative law scholarship. After discussing Zhu's theoretical framework and his failure to deal adequately with the role of political power, it relates the situation of Chinese judges to the assumptions of the contemporary law-and-development movement and uses scholarship on antidiscrimination litigation in the United States to suggest that the role of law and judges in Chinese rural society may not be as unique as Zhu assumes.

1. DATA AND ANALYSIS

   Zhu begins with the 1996 story of a judge in a remote village of Shaanxi Province. The county credit union had lent RMB200 [$24] to a local farmer ten years before. Repeated efforts to collect had failed, but under the aegis of a "Use the Law To Recover Loans" movement, the credit union filed suit in the local branch of the county people's court. The president of the court borrowed a van from the local authorities, gathered up a policeman and a representative of the plaintiff (and the Beijing University research team), and headed for the defendant's village. On arrival, the judge and his entourage found a village cadre and, with the cadre in tow, went to the defendant's home. (4) The defendant had taken his sheep to pasture, but the cadre volunteered to find him and bring him back. Although some in the judge's party feared that the cadre would warn the defendant away, such was not the case, and on his return the defendant invited the group in for tea on the kang, the brick platform used for sitting and sleeping in traditional homes in northern China.

   Once all were seated and tea served, the judge opened the proceedings--what Zhu takes great pleasure in referring to as "justice on the kang"--with a statement of the defendant's debt and an inquiry into his failure to pay. The defendant replied that he had no money and, in any case, that he had heard that the government was forgiving all loans made to farmers. The judge scolded the defendant for relying on such rumors, referred instead to the "Use the Law To Recover Loans" movement, and made a great show of adding up precisely what the defendant owed, which amounted to over RMB900 [$109], once ten years' interest, penalties, and court costs were included. At this point, the cadre abruptly intervened, criticized the defendant for not paying his debts, and proposed a compromise whereby the defendant would repay the principal and interest if the other costs and penalties were forgiven. The judge acquiesced but warned that he would be forced to bring the full force of the law to bear if the defendant did not comply. The defendant demurred momentarily, then borrowed enough money to pay on the spot. (5)

   As Zhu points out, the mobilization of judicial power in this manner may puzzle those Westerners who believe that the PRC is all-powerful within its borders. The Chinese Code of Civil Procedure anticipates the use of compulsory process to bring litigants to the court and allows for holding court off premises only in exceptional circumstances. Furthermore, government policy has long emphasized standardization and professionalization within the judiciary, from judicial dress to courtroom procedures to education requirements. Frequent departure from this trend demands an explanation, and Zhu considers several, including the village background of many rural judges, the bureaucratic demands of local government, and even the lingering effect of Mao's efforts to bring law closer to the people. He eventually finds his answer in the dynamics of institutional power. Judges hold court on the kang because they and the state they serve are too weak to do anything else. If Chinese judges do not bring the law to the countryside, the countryside will ignore the law, and it is crucial to the construction of a modern state that the central government be able to project its power down to the levels where the majority of its citizens live. (6)

   When the court president and his entourage arrived in the village, therefore, it was an admission of weakness as well as a show of strength. It did not erase the fact that the judge was a stranger in a tightly knit community or make it possible to collect the debt by sending subpoenas to the relevant parties, waiting for the default judgment to be served, and so on. Nor could the cadre's sincere assistance be assumed simply because he was at the bottom of the formal governmental hierarchy. The cadre derives his power from the villagers as well as from the government, and the judge knew that approaching him for assistance would bolster the cadre's power within the village. Even with the elaborate entourage, therefore, the judge did not come into the village holding all the cards.

   For Zhu, it is the tenuousness of central government power in the village that explains the meaning and nature of sending law to the countryside. He does not see it as merely an attempt to collect debts or strengthen the legal system but as a step in the...