The Law in China: Sometimes Brutal, Sometimes Brilliant

The Telegraph’s Peter Foster points out a forthcoming BBC series following an itinerant judge in Hubei. He argues that the series offers a rare and valuable glimpse at China’s legal system as it exists for most Chinese, rather than for prominent dissidents such as Chen Guangcheng.

Chen’s case says everything – and nothing – about the law in China. It highlights the fundamental absence of law (when it suits the Party) but it also doesn’t give a picture of the day-to-day experience of the law for many Chinese.

For an insight into that, can I point anyone interested in China to a new BBC series called “Law of the Dragon” which landed on my desk recently from the BBC press office in he form of a DVD.

It’s a fly-on-the-wall documentary of a wandering judge in Xuan’en region, Hubei province who goes round settling petty disputes, handling emotive divorce cases and the like.

As often as not Judge Chen (a dead ringer for Chairman Mao) decides to informally mediate the disputes rather than hang the official emblem of his office and institute official proceedings. He’s paternalistic, but also admirably fair and gloriously un-officious.

The first episode airs on Wednesday (September 7th), and will be available on BBC iPlayer (“UK only”).

Stanley Lubman wrote last week at China Real Time Report on new research into the work of other lawyers than the human rights specialists who more frequently receive foreign media attention.

In a more substantial scholarly article on the work of “ordinary” lawyers to be published in the Law and Society Review, Sida Liu of the University of Wisconsin-Madison and the American Bar Foundation’s Terence Halliday also find that, without the benefit of headlines, some are working in their everyday practice to improve Chinese legality.

Liu and Givens argue that lawyers’ “everyday politics” has “two faces”: One is “political liberalism,” which sometimes motivates them to challenge of the exercise of state power in order to protect citizens’ rights and help citizens enforce requirements of procedural justice. The other approach is to “rely on political connections with state agencies to protect themselves as well as their clients and solve legal problems.” These lawyers, Liu and Halliday write, are “politically embedded,” meaning they either have experience in the legal system or have strong ties with people inside it ….

The research also raises interesting questions about the professionalization of Chinese lawyers. Increasing realization among lawyers of the need to oppose the arbitrary enforcement of laws by agencies of the state suggests they are becoming more professional. But the “embededness” that the lawyers can sometimes use to assist their clients depends on the use of what is known in China as “relationships ” (guanxi), a practice that suggests the possibility of corruption. Does embededness undercut proceduralism and the regularity of law? Or might the personal relationships that facilitate lenient treatment of a Chinese defendant differ little from those between experienced prosecutors and well-known, experienced and respected veteran criminal defense lawyers engaged in plea bargaining in the US?

See also The Silent Majority: China’s Other Lawyers, via CDT.

Sources:

The law in China: sometimes brutal, sometimes brilliant – Telegraph Blogs
Don’t Overlook China’s ‘Ordinary’ Lawyers – China Real Time Report – WSJ

September 6, 2011 2:50 PM
Posted By: