BEIJING -- Some China-watchers have argued recently that the rule of law is weakening in the People's Republic. However, a less-commented-on countertrend is the re-emergence of legal processes inspired by indigenous conventions and traditions such as trial by public opinion. The trend seems to be deepening, reflecting a profound ideological shift in China's legal approach. Moreover, this shift may help explain China's more assertive foreign policy over the past 18 months and also has significant implications for the country's leadership aspirations in Asia and its continued integration in international institutions.
Indigenous Chinese legal process adheres to what has been called a "consequence-orientated folk theory of culpability" (.pdf). Where the Western legal tradition is based on a formal set of codes and norms that determine intentionality, Chinese assignation of guilt places greater emphasis on situational factors and the consequences of the crime for the community. Despite these diametrically opposed approaches, and with notable periods of exception, since 1949 the trend in China has generally been one of a more standardized judiciary with more sophisticated checks and balances to enhance consistency in the application of justice. However, with the incidence of domestic social unrest at a record high, the Communist Party is increasingly reverting to more-traditional processes in its attempts to resolve the grievances of its citizenry.
One prominent example is mediation, an ancient practice roughly akin to an out-of-court settlement that can be determined by a judge or the Party. In recent years, as the number of environmental and land compensation cases has sky-rocketed, mediation has become the government's preferred legal recourse. Revised Supreme Court guidelines last year relegitimized the practice and encouraged its further expansion. But mediated settlements are not subject to judicial review, and they rarely address the root cause of the infraction. Nor do they force perpetrators to cease the illegal activity. Thus, while mediation may appease individuals, it also prevents the Chinese legal system from evolving in response to experience and precedents over time.