Justice from above or below? Popular strategies for resolving grievances in rural China

China Quarterly

Volumn , Issue 193, 2008, Pages 43-64

  Michelson, Ethan ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

DECISION MAKING; DISPUTE RESOLUTION; LEADERSHIP; LEGAL SYSTEM; LOCAL PARTICIPATION; RURAL PLANNING; SOCIAL CONFLICT; SOCIAL JUSTICE; STRATEGIC APPROACH;

ASIA; CHINA; EURASIA; FAR EAST;

EID: 40949145725     PISSN: 03057410     EISSN: 14682648     Source Type: Journal    
DOI: 10.1017/S0305741008000039     Document Type: Article

References (103)

1. Thomas B. Bernstein and Xiaobo Lü, Taxation without Representation in Contemporary Rural China (Cambridge: Cambridge University Press, 2003);
2. Thomas B. Bernstein, "Instability in rural China," in David Shambaugh (ed.), Is China Unstable? (Armonk, NY: M.E. Sharpe, 2000), pp. 95-111;
3. and Ian Johnson, Wild Gross: Three Stories of Change in Modern China (New York: Pantheon, 2004).
4. Ray Yep, "Can 'tax-for-fee' reform reduce rural tension in China? The process, progress and limitations," The China Quarterly, No. 177 (2004), pp. 42-70
5. and John James Kennedy, "From the fee-for-tax reform to the abolition of agricultural taxes: The impact on township governments in north-west China," The China Quarterly, No. 189 (2007), pp. 43-59.
6. Yuen Yuen Tang, "When peasants sue en masse: Large-scale collective ALL suits in rural China," China: An International Journal, Vol. 3, No. 1 (2005), pp. 24-49
7. and Carl Minzner, "Xinfang: An alternative to formal Chinese legal institutions," Stanford Journal of International Law, Vol. 42, No. 1 (2006), pp. 103-79.
8. Kevin J. O'Brien and Lianjiang Li, Rightful Resistance: Contentious Politics in Rural China (New York: Cambridge University Press, 2006).
9. O'Brien and Li, Rightful Resistance;
10. Kevin J. O'Brien, "Rightful resistance," World Politics, Vol. 49, No. 1 (1996), pp. 40-41;
11. and Johnson, Wild Grass.
12. Kevin J. O'Brien and Lianjiang Li, "The politics of lodging complaints in rural China," The China Quarterly, No. 143 (1995), p. 778
13. and Lianjiang Li and Kevin J. O'Brien, "Villagers and popular resistance in contemporary China," Modern China, Vol. 22, No. 1 (1996), p. 43.
14. O'Brien, "Rightful resistance," pp. 34, 52-55
15. and O'Brien and Li, Rightful Resistance, pp. 4, 29, 99-102, 109-12.
16. Zhao Donghui, "Xinfang de tizhi pingjing jidai tupo: Rang minyi shun chang shang song" ("A bottleneck in the xinfang system in urgent need of a breakthrough: Let the sentiments of the people flow upward unobstructed"), Liao wang xinwen zhoukan (Outlook Weekly , No. 40 (6 October 2003), pp. 23-24;
17. also see O'Brien and Li, Rightful Resistance, p. 62 n. 17
18. and Yongshun Cai, "Managed participation in China," Political Science Quarterly, Vol. 119, No. 3 (2004), p. 442.
19. O'Brien and Li, Rightful Resistance, p. 126, also see pp. 94, 104-08.
20. Ibid. pp. 114-15.
21. The households were clustered in 37 villages in six townships (in six counties). That is, village samples averaged 78 households and township/ county samples (one per province/centrally-administered city) averaged 484 households.
22. Usage of the word "lump" to signify avoiding or ignoring disputes stems from William L.F. Felstiner, "Influences of social organization on dispute processing," Law & Society Review, Vol. 9, No. 1 (1974), pp. 63-94.
23. As much as I would have liked to separate Party cadres from administrative cadres, only three response categories (representing three grievances) include explicit reference to village-level Party officials. Vague terms like "village cadre" (cun ganbu) undoubtedly include both administrative and Party leaders.
24. Because only five response categories (representing six grievances) include the word "lawyer," I was unable to separate lawyers into their own third-party category.
25. Tom Tyler, Why People Obey the Law (New Haven, CT: Yale University Press, 1990).
26. Whereas O'Brien and Li use the terms "grievance" and "dispute" somewhat interchangeably, it is useful to conceptualize the transformation of a grievance into a dispute as the shift from bilateral negotiation between an injured party and the alleged offender to the mobilization or intervention of one or more third parties following the alleged offender's rejection of the injured party's claim. William L.F. Felstiner, Richard L. Abel and Austin Sarat, "The emergence and transformation of disputes: Naming, blaming, claiming...," Law & Society Review, Vol. 15, Nos. 3-4 (1980-81), pp. 635-36.
27. David Zweig, Democratic Values, Political Structures, and Alternative Politics in Greater China, Peaceworks No. 44 (Washington, DC: United States Institute of Peace, 2002), p. 45. As with my survey data, Zweig's data do not permit distinguishing village administrators from leaders of the village Party branch.
28. Robert M. Emerson, "Disputes in public bureaucracies," in Susan S. Silbey and Austin Sarat (eds.), Studies in Law, Politics and Society Vol. 12, Part A (Greenwich, CT: JAI Press, 1992), pp. 3-29.
29. O'Brien and Li, Rightful Resistance.
30. Zhang Haihong, "Xin Zhongguo xinfang zhidu de youlai yu xianzhuang" ("The origins and current condition of new China's xinfang system quot;), Tuamie (Unity), No. 1 (2005), p. 11;
31. Minzner, "Xinfang"; Laura, Luehrmann, "Facing citizen complaints in China, 1951-1996," Asian Survey, Vol. 43, No. 5 (2003), pp. 845-66;
32. and Cai, "Managed participation."
33. China Statistical Yearbook (Beijing: State Statistical Publishing House, 2005), Table 23-20.
34. In 2005 the number of petitions reportedly dropped to 12.7 million. "'Xinfang tiaoli' de guanche shishi qude mingxian chengxiao: Fang guojia xinfang ju fuze ren" ("Implementation of 'regulations on letters and visits' produces obvious results: An interview with an official at the letters and visits administration"), Renmin ribao (People's Daily), 29 April 2006, p. 5.
35. Zhang Haihong, "The origins and current condition of new China's xinfang system," p. 12.
36. Because it implies an obviously implausible 7 billion complaints made annually to government offices, this figure may have been hyperbolically constructed to make the simple point that the xia/ung system processes only a tiny minority of all direct appeals to the state.
37. These words are not mutually exclusive; some responses contain more than one. What is somewhat surprising is the absence of the mass media from any responses. In Zweig's survey of villagers in Anhui, "report to mass media" accounted for 5.5% of all actions taken in response to the problems they reported. See Zweig, Democratic Values, p. 45.
38. When more than one type of third party was reported, I coded upwards I privileged higher-level over lower-level third parties on the assumption that the one further away from the village was more likely to be the final, decisive or most recent third party approached for help, and thus the one being evaluated. To ensure the results are robust to a variety of coding methods, I replicated all results after recoding the third parties in a manner that privileges lower-level third parties over higher-level third parties. Coding changes do not significantly alter the empirical results; the substantive conclusions I draw from all results, regardless of coding method, are identical.
39. Because they fall entirely outside the scope of O'Brien and Li's research on conflicts between villagers and local government authorities, I excluded "intra-family" and "divorce" disputes from the regression analysis. However, because "neighbour" disputes conceivably include conflicts with political leaders, especially if land resources or borders are at stake, I kept them in the analysis. Regardless of whether these dispute types are included or excluded, the results remain virtually identical and in no way change my substantive conclusions.
40. An additional measure I took to ensure that variation in evaluations of third parties is not an artefact of variation in the difficulty of the disputes brought to them was to cross-tabulate satisfaction by third party separately for each dispute type. The bivariate cross-tabulations confirm the main findings presented here. In the regression models, whether or not multiple third parties were reported (a possible proxy for the stickiness or intractability of the dispute and for how long it eluded resolution) is not statistically significant. Other household characteristics (such as the presence of political leaders) are not statistically significant. I replicated all findings with multilevel models containing random intercepts calculated using HLM. HLM results almost perfectly mirror the results from the fixed-effects models presented in this article and entirely support my substantive conclusions. I am grateful to Joshua Klugman for his technical assistance.
41. In the remote chance ambiguously identified local police substations ( paichusuo) belonged to villages (rather than to townships or higher levels of government), I replicated all analyses after recoding as "village leaders" the 32 instances of approaching a "police" authority of an unspecified administrative level. Not surprisingly, this coding change reduces the "police" coefficient in Model 1 from 2.242 to 1.212 (p-.655) and in Model 2 from 2.431 to 1.484 (p .416). I would like to thank James Lee for bringing this issue to my attention. However, this highly conservative coding change has no effect whatsoever on the other coefficients. Most importantly, the "government office above village " coefficient remains stable and of similar statistical significance in Model 2.
42. Patricia M. Thornton, "Comrades and collectives in arms: Tax resistance, evasion, and avoidance strategies in post-Mao China," in Peter Hays Gries and Stanley Rosen (eds.), State and Society in 21st-century China: Crisis, Contention, and Legitimation (New York & London: RoutledgeCurzon, 2004), pp. 87-104 and Edward Cody, "China's rising tide of protest sweeping up Party officials: Village chiefs share anger over pollution," The Washington Post, 12 September 2005, p. A01.
43. 2 equality test shows this difference to be significant at p=.004).
44. Evaluations of outcome and process are identical in 8 1% of all reported disputes and are correlated at R=.72.
45. By contrast, only 3% of all reported third parties met or exceeded outcome expectations when they failed to meet procedural expectations. Procedural justice overrode distributive justice more frequently than vice versa: Feeling good about the process when the outcome was disappointing was twice as likely as feeling good about the outcome when the process was disappointing.
46. 2 equality test shows this difference to be significant at p=.002. However, when they failed to meet procedural expectations, village leaders and higher-level government offices were equally likely (11% and 9% respectively) to meet or exceed distributive expectations. Put another way, although the likelihood that procedural justice overrode distributive justice was greatest when village leaders were approached, the likelihood that distributive justice overrode procedural justice was similarly low among all third-party types.
47. Zhao Ling and Su Yongtong, "Guonei shou fen xinfang baogao huo gaoceng zhongshi" ("China's first report on petitioning system received high-level attention"), Nanfang zhoumo (Southern Weekend), 4 November 2004.
48. Zhao Donghui, "A bottleneck in the xinfang system," p. 23.
49. Zhao Shukai,"Shangfang shijian he xinfang tixi-guanyu nongmin jin jing shangfang wenti de diaocha fenxi" ("Complaint incidents and the xinfang system: An analysis of a survey on the problem of peasants coming to Beijing to make complaints"), unpublished report dated December 1999, accessed 3 July 2006 at http://www.usc.cuhk.edu.hk/ wk_wzdetails.asp?id=2355, on file with author.
50. Yu Jianrong, "Zhongguo xinfang zhidu pipan" ("A critique of China's complaint system"),Zhongguo gaige (China Reform), No. 2 (2005), pp. 26-28;
51. Li Li, "Judicial independence should come first," Beijing Review No. 45 (10 November 2005). However, the survey data suggest, albeit tentatively, that discontent with higher-level administrative agencies is concentrated not at the highest levels but at the township level. Of the 172 reported instances of seeking help from a "government office above village," in 71 the word "township" (xiang or zhen) was recorded. When a category created from these 71 instances is introduced, its huge effect on discontent (relative to the omitted "village leader" reference category) suggests that village and township leaders were not of the same ilk, that village cadres were not merely lackeys doing the bidding of township cadres. Compare to O'Brien and Li, Rightful Resistance, p. 43. However, because we cannot assume that ambiguous, unspecified government agencies are located above the township, more definitive conclusions must await better data.
52. Bernstein and Lü, Taxation, pp. 190-96.
53. Young Nam Cho, "Symbiotic neighbour or extra-court judge? The supervision over courts by Chinese local people's congresses," The China Quarterly, No. 176 (2003), pp. 1068-83;
54. Pitman B. Potter, "The Chinese legal system: Continuing commitment to the primacy of state power," The China Quarterly, No. 159 (1999), pp. 673-83;
55. Margaret Y.K. Woo, "Law and discretion in the contemporary Chinese courts," Pacific Rim Law & Policy, Vol. 8, No. 3 (1999), pp. 581-615;
56. Qianfan Zhang, "The people's court in transition: The prospects of the Chinese judicial reform," Journal of Contemporary China, Vol. 12, No. 34 (2003), pp. 69-101;
57. Sida Liu, "Beyond global convergence: Conflicts of legitimacy in a Chinese lower court," Law & Social Inquiry, Vol. 31 (2006), pp. 75-106;
58. and Jerome A. Cohen, "Reforming China's civil procedure: Judging the courts," American Journal of Comparative Law, Vol. 45 (1997), pp. 793-804.
59. Zhao and Su, "China's first report on petitioning system," and Yu Jianrong, "A critique of China's complaint system," p. 27.
60. Zhang Liping, "Ba wenti jiejue zai jiceng" ("Resolve problems at the lowest levels"), Gongchandangyuan (Communist Party Member), Vol. 5 (2005), p. 11.
61. Ethan Michelson, "The practice of law as an obstacle to justice: Chinese lawyers at work," Law & Society Review, Vol. 40, No. 1 (2006), pp. 18-21.
62. Tom Tyler, "Citizen discontent with legal procedures: A social science perspective on civil procedure reform," American Journal of Comparative Law, Vol. 45 (1997), pp. 871-904.
63. Zhao Donghui, "A bottleneck in the xinfang system," p. 24
64. and Zhang Liping, "Resolve problems at the lowest levels." In another published report, the various "80 per cents" are actually "over 80%" and refer to collective complaints. A fourth "80%" is sometimes cited: "over 80% of complaints reflect problems created by the reform and development process." Zhang Haihong, "The origins and current condition of new China's xinfang system," p. 12.
65. Christopher Winship and Robert D. Mare, "Models for sample selection bias," Annual Review of Sociology, Vol. 18 (1992), pp. 327-50
66. and Barbara Geddes, "How the cases you choose affect the answers you get: Selection bias in comparative politics," Political Analysis, Vol. 2 (1990), pp. 31-50.
67. Max Gluckman, The Judicial Process among the Bartose of Northern Rhodesia (Manchester: The University Press, 1955);
68. P.H. Gulliver, "Dispute settlement without courts: The Ndendeuli of southern Tanzania," in Laura Nader (ed.), Law in Culture and Society (Chicago: Aldine, 1969), pp. 24 68;
69. and John L. Comaroff and Simon Roberts, Rules and Processes: The Cultural Logic ofDispute in an African Context (Chicago: University of Chicago Press, 1981).
70. Karl L. Llewellyn and E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (Norman, OK: University of Oklahoma Press, 1941).
71. Laura Nader, "Choices in legal procedure: Shia Moslem and Mexican Zapotec," American Anthropologist, Vol. 67, No. 2 (1965), pp. 394-99;
72. June F. Collier, Law and Social Change in Zinacantan (Stanford, CA: Stanford University Press, 1973);
73. Philip Parnell, "Village or state? Competitive legal systems in a Mexican judicial district," in Laura Nader and Harry F. Todd Jr. (eds.), The Disputing Process - Law in Ten Societies (New York: Columbia University Press, 1978), pp. 315-50;
74. and Philip Parnell, Escalating Disputes: Social Participation and Change in the Oaxacan Highlands (Tuscon, AZ: The University of Arizona Press, 1988).
75. For additional cases from around the world, including Turkey and Lebanon, see Nader and Todd, The Disputing Process, and Richard L. Abel, "A comparative theory of dispute institutions in society," Law & Society Review, Vol. 8, No. 2 (1974), pp. 217-347.
76. Gluckman, The Judicial Process.
77. June Starr, "Turkish village disputing behavior," in Nader and Todd, The Disputing Process, p. 138.
78. Felstiner "Influences of social organization,"
79. and William L.F. Felstiner, "Avoidance as dispute processing: An elaboration," Law & Society Review, Vol. 9, No. 4 (1975), pp. 695-706.
80. As Marc Galanter writes: "Which human encounters are we likely to find regulated at the 'official' end of our scale and which at the 'private' end? It is submitted that location on our scale varies with factors that we might sum up by calling them the 'density' of the relationship. That is, the more inclusive in life-space and temporal span a relationship between parties, the less likely it is that those parties will resort to the official system and more likely that the relationship will be regulated by some independent 'private' system." Marc Galanter, "Why the 'haves' come out ahead: Speculations on the limits of legal change," Law & Society Review, Vol. 9, No. 1 (1974), p. 130.
81. Similarly, according to Donald Black, "If we know that the relational distance between the adversaries differs in two otherwise identical cases, we can predict which is likely to attract more law.... We cannot be certain, but our ability to anticipate the result is vastly improved. In sum: Law varies directly with relational distance." Donald Black, Sociological Justice (New York: Oxford University Press, 1989), p. 12, emphasis in original.
82. Gluckman, The Judicial Process;
83. Jan Van Velson, "Procedural informality, reconciliation, and false comparisons," in Max Gluckman (ed.), Ideas and Procedures in African Customary Law (London: Oxford University Press, 1969), pp. 137-52;
84. Felstiner "Influences of social organization";
85. Felstiner, "Avoidance as dispute processing";
86. David Engel, Code and Custom in a Thai Provincial Court (Tuscon, AZ: The University of Arizona Press, for the Association of Asian Studies, 1978);
87. and David Engel, "The oven bird's song: Insiders, outsiders, and personal injuries in an American community," Law & Society Review Vol. 18, No. 4 (1984), pp. 551-82.
88. Van Velsen, "Procedural informality," p. 138,
89. cited in Nader and Todd, The Disputing Process, pp. 12-13.
90. Max Gluckman, Ideas and Procedures in African Customary Law (London: Oxford University Press, 1969), p. 22,
91. cited in Laura Nader, "From disputing to complaining," in Donald Black (ed.), Toward a General Theory of Social Control, Vol. 1: Fundamentals (Academic Press, 1984), p. 77.
92. Starr, "Turkish village disputing behavior," p. 149.
93. Galanter, "Why the 'haves' come out ahead," p. 108.
94. See Robert Kidder, "Courts and conflict in an Indian city: A study in legal impact," Journal of Commonwealth Political Studies, Vol. 11, No. 2 (1973), pp. 121-39;
95. Frank Upham, "Who will find the defendant if he stays with his sheep? Justice in rural China," Yale Law Journal, Vol. 114, No. 7 (2005), pp. 1675-1718;
96. and Liu, "Conflicts of legitimacy."
97. Parnell, "Village or state?" p. 317
98. and Collier, Law and Social Change, p. 228.
99. Jonathan Rieder, "The social organization of vengeance," in Black, Toward a General Theory of Social Control, Vol. 1, pp. 131-62.
100. Richard Madsen, "The politics of revenge in rural China during the Cultural Revolution," in Jonathan N. Lipman and Stevan Harrel (eds.) Violence in China: Essays in Culture and Counterculture (Albany, NY: State University of New York Press, 1990), pp. 175-201.
101. David Zweig, "To the courts or to the barricades: Can new political institutions manage rural conflict?" in Elizabeth J. Perry and Mark Selden (eds.), Chinese Society: Change, Conflict and Resistance, 2nd ed. (London & New York: RoutledgeCurzon, 2003), pp. 117-19.
102. Compare to Lianjiang Li, "Political trust in rural China," Modern China, Vol. 30, No. 2 (2004), pp. 228-58.
103. Also see Mary E. Gallagher, "Mobilizing the law in China: 'informed disenchantment' and the development of legal consciousness," Law & Society Review, Vol. 40, No. 4 (2006), pp. 783-816.