Benjamin L. Liebman

Watchdog or Demagogue? The Media in the Chinese Legal System

Over the past decade, the Chinese media have emerged as among the most influential actors in the Chinese legal system. As media commercialization and increased editorial discretion have combined with growing attention to social and legal problems, the media have gained incentives to expand their traditional mouthpiece roles in new directions. As a result, the media have emerged as one of the most effective and important avenues of citizen redress. Their role in the legal system, however, has also brought them increasingly into conflict with Chinas courts. This Article examines the implications of the medias roles in the Chinese legal system for Chinas legal development. It shows how media commercialization has resulted in incentives for the media to expand the scope of critical reporting, to challenge propaganda department content regulations, and to influence court decisionmaking. This Article details four distinct mechanisms by which the media influence Chinas courts, demonstrating that the medias effectiveness and influence stem from a combination of their continued position as an arm of the Party-state and their ability to reflect and create public opinion. Media commercialization may be reinforcing traditional norms of Party-state interference in the courts, while at the same time media scrutiny increasingly highlights problems in the Chinese justice system. Despite significant reforms and increasing caseloads, the authority of Chinas courts remains limited. Yet the medias ability to enjoy significant autonomy within the confines of Party supervision also suggests that a similar model of autonomy may be possible, and is perhaps already emerging, for Chinas courts.

China's Courts: Restricted Reform

This essay examines the development of Chinas courts over the past decade. Although court caseloads have increased only modestly, courts have engaged in significant reforms designed to raise the quality of their work. Yet such top-down reforms have been largely technical, and are not designed to alter the power of Chinas courts. Courts have also encountered new challenges, including rising populist pressures, which may undermine both court authority and popular confidence. The most important changes in Chinas courts have come from the ground up: some local courts have engaged in significant innovation, and horizontal interaction among judges is facilitating the development of professional identity. Recent developments have largely avoided two central questions facing Chinas courts: why have courts been permitted to develop even limited new roles, and what additional roles, if any, may they play within the Chinese political system?

Malpractice Mobs: Medical Dispute Resolution in China

China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more than would be available in court and also influences how judges handle cases that do wind up in court. The detailed evidence regarding medical disputes presented in this article adds depth to existing understanding of institutional development in China, showing that increased innovation and competence are not resulting in greater authority for the courts. Despite thirty-four years of legal reforms and significant strengthening of legal institutions, the shadow of the law remains weak. Medical cases highlight largely unobserved trends in both law and governance in China, in particular state over-responsiveness to individual grievances. The findings presented here suggest limitations to contemporary understanding of both the functioning of the Chinese state and of the role of law in China, and add to existing literature on the non-convergence of the Chinese system to existing models of legal and political development.

The Media and the Courts: Towards Competitive Supervision?

Scholarship on Chinese governance has examined a range of factors that help to explain the resilience of authoritarianism. One understudied aspect of regime resilience and institutionalization has been the growing importance of supervision by a range of party-state entities. Examining court-media relations in China demonstrates that “competitive supervision” is an increasingly important tool for increasing state responsiveness and improving accountability. Court-media relations suggest that China is seeking to develop novel forms of horizontal accountability. Placing such relations in a broader institutional context also helps to explain why common paradigms used to analyze them may be inapplicable in China.

Legal Reform: China's Law-Stability Paradox

In the 1980s and 1990s, China devoted extensive resources to constructing a legal system, in part in the belief that legal institutions would enhance both stability and regime legitimacy. Why, then, did Chinas leadership retreat from using law when faced with perceived increases in protests, citizen complaints, and social discontent in the 2000s? This law-stability paradox suggests that party-state leaders do not trust legal institutions to play primary roles in addressing many of the most complex issues resulting from Chinas rapid social transformation. This signifies a retreat not only from legal reform, but also from the rule-based model of authoritarian governance that has contributed much to the resilience of the Chinese system. The law-stability paradox also highlights the difficulties facing efforts by Chinas new leadership to reinvigorate legal reform.

Leniency in Chinese Criminal Law? Everyday Justice in Henan

This article examines one-year of publicly available criminal judgments from one basic-level rural county court and one intermediate court in Henan Province in order to better understand trends in routine criminal adjudication in China. I present an account of ordinary criminal justice in China that is both familiar and striking: a system that treats serious crimes, in particular those affecting state interests, harshly while at the same time acting leniently in routine cases. Most significantly, examination of more than five hundred court decisions shows the vital role that settlement plays in criminal cases in China today. Defendants who agree to compensate their victims receive strikingly lighter sentences than those who do not. Likewise, settlement plays a role in resolving even serious crimes, at times appearing to make the difference between life and death for criminal defendants. My account of ordinary cases in China contrasts with most western accounts of the Chinese criminal justice system, which focus on sensational cases of injustice and the prevalence of harsh punishments.The evidence I present provides insight into the roles being played by the Chinese criminal justice system and the functions of courts in that system. This article also provides empirical evidence that contributes to debates on a range of other issues, including the relationship of formal law to community norms in Chinese criminal justice, the roles of witnesses and lawyers, the function of appellate review, and how system confronts and handles a range of high profile topics. My findings also contribute to literature on courts in authoritarian regimes and the evolution of authoritarian transparency. This article provides a base for discussing the future of empirical research on Chinese court judgments, demonstrating that there is much to learn from the vast volume of cases that have in recent years become publicly available in China.

Patient–physician trust in China: a workshop summary

BACKGROUND Patient-physician mistrust has become deeply embedded in medical clinics within a wide variety of settings, including many in China. The purpose of this research was to develop a series of actionable policy recommendations to rebuild patient-physician trust in China. METHODS Our interdisciplinary group included experts in medicine, public health, philosophy, ethics, law, regulation, China studies, anthropology, sociology, and communications. Recommendations were identified by team members and presented at a two-day workshop at the Harvard Center, Shanghai, China. The group divided into three teams (medical education, ethics and law, and healthcare systems) in order to revise and finalise the recommendations. FINDINGS We identified a total of 18 recommendations focused on medical schools, ethical guidance, legal systems, and health systems to rebuild patient-physician trust. Medical education recommendations included a requirement for medical humanities as a core component, promotion of experiential learning and community-medical school partnerships, and improvement of evaluation of medical humanities education. Ethical and legal recommendations included encouragement of more transparency in doctor practices and the healthcare system, creating laws to promote mandatory medical error reporting, and acceleration of the development of neutral procedures for recording and resolving medical disputes. Healthcare systems recommendations included promoting healthcare systems that facilitate and acknowledge caregiving, transitioning from red packets (gifts to physicians) and towards higher physician salaries, strengthening primary healthcare systems, and establishment of non-punitive systems for error reporting in hospitals. INTERPRETATION Several educational, legal, ethical, and healthcare system reforms to rebuild patient-physician trust are feasible. Our recommendations go beyond the healthcare sector alone, suggesting that policy responses within education, legal, and ethical norms are also critical. The presence of mistrust should not be misconstrued as an errant medical system, but rather as an opportunity and a responsibility to rebuild patient-physician trust. Our recommendations are relevant within the Chinese context and in other transitioning healthcare systems. FUNDING Harvard China Fund and the China Medical Board.

Authoritarian Justice in China: Is There a “Chinese Model”?

Most recent Western popular and scholarly writing on legal reform in China has focused on two apparently contradictory trends. Since coming to power in 2012 Chinas new leadership has significantly curtailed the limits of permissible legal activism, highlighted most clearly by the detention and prosecution of numerous leading lawyers and academics. The Party-state has also increased oversight and control over legal education and has explicitly rejected the relevance of Western models of legality for China, including concepts such as judicial independence. At the same time, Chinas leadership has announced some of the most significant legal reforms in decades, in particular in the courts, and has staked its future legitimacy on its ability to fight corruption and to “govern the nation according to law” (Decision of the Third Plenary Session of the Eighteenth CCP Central Committee 2013, IX). The Decision issued by the Central Committee of the Communist Party following its Fourth Plenum in October 2014 reflects this tension, providing an extensive roadmap for reform while at the same time reaffirming political control over the legal system. The repeated emphasis on Party oversight in both the Communique issued immediately following the Plenum and in the more detailed Plenum Decision (Decision of the Fourth Plenary Session of the Eighteenth CCP Central Committee 2014, hereinafter “Plenum Decision”) has led many to question whether Chinas leadership is serious about legal reform and whether significant reforms are possible given the political confines in which Chinas legal system, and in particular Chinas courts, exist. Far less attention has been devoted to another emerging trend: the attempt to define a Chinese Model of legal development. Although officials and scholars in China have long written of Chinas efforts to construct a “socialist rule of law system,” in the past most such writings were aimed at explaining why the Chinese legal system needed more time to develop or why China did not conform to or accept liberal Western paradigms. Serious scholarly (or official) efforts at defining the uniqueness of Chinas approach to legal development or at identifying specific characteristics of Chinas approach were rare. In contrast, a number of recent scholarly efforts have sought to identify distinctive aspects of Chinas approach to legal development, particularly in the courts and dispute resolution.