Jerome CohenA dozen panelists weighed in on the current state of Chinese law during the 16th annual Timothy A. Gelatt Dialogue on the Rule of Law in Asia, “Let a Hundred Flowers Bloom: A Roundtable on China’s Legal System,” presented by the U.S.-Asia Law Institute on September 7.

Professor Jerome Cohen, whose 80th birthday was observed at the event, began the discussion with his thoughts on outsiders’ perceptions of China: “People see China as a threat, people see China as a model, people praise China for lifting several hundred million people out of poverty, and people condemn China because of violations of conventional civil and political rights. China is a complicated place.... All the social progress spawned by economic development is only creating more and more tensions and problems. This is not unique to China. Modernizing states that modernize too rapidly, including Iran under the shah, see many tensions develop.”

Co-moderator Benjamin Van Rooij, a global visiting professor from the University of Amsterdam, then discussed the pronounced focus on institution-building and lawmaking in China over the last three decades, but raised the question of  “whether this is working for the people that need it the most, that use it the most.” How, he said, do the weakest people gain access to justice? What standards should be applied to justice, and by whom? What influence does politics have on the process?

Frank Upham, Wilf Family Professor of Property Law, gave a “Japanese perspective” on Chinese justice. There are three basic roles the legal system can play, he said: dispute resolution, protection of individual rights, and administrative discipline exacted by the central state. China has an interest in each of those things, Upham argued, but steps back from them whenever a political controversy arises in an attempt to achieve both rule of law and a harmonious society.

“The Japanese would say that’s like mixing oil and water,” Upham said. “Litigation and harmony don’t go together from the Japanese perspective; the Chinese are seen as trying to do both.” Unlike the Japanese regime, he said, which has used the courts to address fundamental legal questions, the Communist Party in China has refrained from going that far in addressing thornier issues. But, Upham concluded, “I don’t think they can have a harmonious society without doing it.”

Cynthia Estlund, Catherine A. Rein Professor of Law, discussed access to justice in the context of labor. “Chinese workers have long faced grueling hours and low wages and hazardous and degrading conditions, often in violation of the law on the books,” she said. “But in the last decade workers have been increasingly willing to take to the streets to publicly protest those conditions.”

The recent rise in worker protests might, Estlund suggested, be attributed to the younger generation’s increasing intolerance of unsatisfactory conditions. Labor law reforms in 2008 offered greater access to forms of legal redress, and the number of arbitration cases has spiked accordingly. But, she said, worker discontent is still high, and workers going through official channels are often frustrated by lack of legal representation, inability to prove the existence of an employment contract, and pressure to settle for a fraction of actual losses, if not to drop their cases entirely. Nevertheless, she said, the government is beginning to focus more on workers’ welfare, and unions, relatively toothless now, might become a greater force.

Margaret Lewis ’03, an associate professor at Seton Hall University School of Law and a former Furman Academic Fellow, gave a brief overview of access to justice in the area of criminal law. A series of high-profile wrongful convictions highlighted by non-state media and the blogosphere, she said, has made the need for reforms impossible for the government to ignore. Lewis will soon publish an article regarding the regime’s recent implementation of detailed rules regarding illegally obtained evidence.

Concluding the dialogue, Van Rooij said that, given the complexities of factors such as politics and economic expansion, “When you look at access to justice, it gets a lot more complicated than just looking at what the legal institutions are.” His fear, he said, is that China may throw up its hands at such difficulties rather than attempt true reform. Outside commentators, Van Rooij suggested, should tread carefully: “If we exaggerate what is going very well in China, as well as exaggerate what is going very negatively, we are breeding this.”

Watch the full dialogue (2 hrs 28 min):

Posted on September 13, 2010