| Who Will Find the Defendant if He Stays with His Sheep? Justice in Rural China |
| Frank K. Upham [View as PDF] |
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114 Yale L.J. 1675 (2005) In Song fa xiaxiang: Zhongguo jiceng sifazhidu yanjiu [Sending Law to the Countryside: Research on China's Basic-Level Judicial System], Dean Zhu Suli of Beijing University Law School claims that Chinese legal scholars uncritically accept foreign models and rule-of-law ideology in discussing the future of the Chinese legal system rather than examining the reality of how Chinese courts function. To correct this error, he calls on Chinese legal scholars to pay attention to ground-level courts in rural China and himself undertakes an investigation of the strategies and techniques of judges in these courts. He claims that effective rural judges are concerned almost exclusively with dispute resolution and rarely use formal law in a conventional manner or play any significant role in the diffusion of central legal norms. He also defends the practice of collective judging and the use of former military personnel as judges, both of which are frequently criticized as inconsistent with the rule of law. Zhu's data and analysis present a serious challenge to the conventional wisdom regarding the role of judges and formal adjudication in developing countries, but he lacks a sophisticated comparative perspective that could put China's experience in a more nuanced context. Most troubling, he neglects both the power of the Communist Party to use the courts to repress society and the potential role of the courts in moderating that power on behalf of the rural population. |