Yoon, Angela 2020 Asian Studies Thesis

Title: "Harmony is Most Precious" : People’s Mediation and the Confucian Revival Advisor: Sam Crane Advisor is Co-author/Adviser Restricted Data Used: None of the above Second Advisor: Release: release now Authenticated User Access (does not apply to released theses): No Contains Copyrighted Material: No

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“HARMONY IS MOST PRECIOUS” PEOPLE’S MEDIATION AND THE CONFUCIAN REVIVAL

by

Angela L. Yoon

Professor Sam Crane, Advisor

A thesis submitted in partial fulfillment of the requirements for the Degree of Bachelor of Arts with Honors in Asian Studies

WILLIAMS COLLEGE Williamstown, Massachusetts

May 5, 2020 2

Table of Contents

Acknowledgements……………………………………………………………………………..3

Introduction……………………………………………………………………………………5

Chapter 1 ……………………………………………………………………………………. 12 Informal Mediation in the Qing Dynasty……………………………………………...14 Law, Culture, and Legal Culture in Imperial China……………………………………21 Re-evaluating the Link Between Mediation and Confucianism ………………………. 30

Chapter 2 ……………………………………………………………………………………. 46 Te Rise of People’s Mediation ………………………………………………………..48 Encounters with Legal Reform ………………………………………………………..57 People’s Mediation and the “Harmonious Society” ……………………………………65

Chapter 3 ……………………………………………………………………………………..77 Te Culture Fever and Questions of Modernity ……………………………………….79 Te Confucian Revival as a Project of Cultural Nationalism …………………………..83 Contemporary People’s Mediation …………………………………………………….90

Conclusion …………………………………………………………………………………..107

Works Cited …………………………………………………………………………………111 3

Acknowledgements

To my advisor, Professor Crane. A million thanks to you for helping me get this far. Tis project was by far one of the most memorable highlights of the year, and I could not have finished it without your endless guidance, wisdom, and advice. You were always patient with me, you challenged me to think outside the box, and you helped so many times to structure my chaotic thoughts into a fully-fledged thesis. And for all of that, thank you; I couldn’t have had a better advisor.

To my friends, my angels. Tank you for the warmth, for the late-night talks, for the morning coffee dates, for picking me up when I fall, and for making me laugh during these crazy and unprecedented times. You’ve spent countless hours listening to my frustrations, hopes, and dreams, and I hope I can always do the same for you.

To my mom and dad. Being over 6,000 miles away from you for most of the year was never easy, but your love for me could be felt anywhere. You remind me everyday what it means to be human, to love and be loved, to challenge and be challenged. You remind me what it means to be a good daughter and sister, and I will carry that on with me forever. I always, always want to make your proud.

To Andy. You inspire me in more ways than you might ever know. 4

Note

In this thesis, I follow China’s customary naming practices, in which the last name comes before the first name—e.g. Mao Zedong and Deng Xiaoping. In terms of romanization, I follow the pinyin system to reflect the ways in which names and terms are romanized in the People’s Republic of China—for example, I write Mao Zedong instead of Mao Tse-tung. 5

Introduction

Confucius once said, “In hearing a case, I am like any other person. What is necessary, however, is to cause the people to have no litigations.”1 While this is just one of many aphorisms from the Analects, its significance is rooted in the fact that it has been invoked—directly and indirectly—by virtually every emperor, Communist leader, and president throughout China’s history. Indeed, as many legal scholars have noted, Confucian values are woven into the very fabric of Chinese legal theories: the ideal Confucian state was imagined to be perfectly harmonious, and the ideal Confucian gentleman “was someone who would not stoop to disputes; he would rise above them by conciliation (rang) and forbearance (ren),” and he would seek, above anything, to inspire harmony (he).2 In a legal context, these ideals have translated into an age-old emphasis on resolving civil disputes extrajudicially, before appealing to litigation. Yet even with centuries of trials and transformations, mediation still reigns supreme as a widely used method of dispute resolution in China, having survived both Maoist legal nihilism and an era of reforms inspired by the Western rule of law paradigm.

Why has mediation persisted as the nation’s dominant form of dispute resolution, and how has it been able to triumph over every test of time, every political regime? Even after the legacies of Maoist thought and heated discussions about the rule of law, what is the reason behind the CCP’s continued emphasis on mediation within the last decade? Te modest but growing body of literature on Chinese mediation practices is a testament to its importance in contemporary discussions about civil law in China. But existing literature does not always capture the contours of China’s constantly evolving legal system: some accounts portray the current emphasis on mediation as a static reflection of deeply-rooted Confucian thought, while others have used China as an example of a legal system unwilling to and incapable of keeping up with

1 Te Analects 2:13 2 Philip C.C. Huang, “Court Mediation in China, Past and Present,” Modern China 32, no. 3 (July 2006): 278. 6 the times. What existing literature often writes out, and what this thesis interrogates, is the multidimensional nature of the relationship between Confucianism, mediation, and modernity.

Te aim of this thesis is threefold: first, to trace the historical precedents and evolution of

People’s Mediation, an institution that was established in the 1950s as a distinctly “Maoist" legal instrument; second, to explore the effects of the Confucian Revival on contemporary People’s

Mediation; and finally, to situate these effects within China’s quest for legal modernity. Te foundation of Chinese law is a constellation of different factors—certainly much more than this thesis can articulate—but it is evident that Confucian rhetoric currently plays an unequivocal role in assigning mediation a special place within China’s dispute resolution system. Using this observation as a starting point, this thesis attempts to better understand how mediation has been renegotiated and reimagined in contemporary times, when modernity continues to demand the jurisprudential ideal of the “rule of law.”Tis puzzle can be examined against the resurgence of

Confucius in political and academic discourse in recent years.

Background and Structure

To establish the historical context necessary for an understanding of contemporary

People’s Mediation, this thesis will begin with an examination of mediation in Qing China

(1644-1911), where Confucianism was deeply entrenched in all corners of social and political life.

To this end, I rely primarily on secondary sources on community mediation and Chinese civil law at large during this time frame. One leading scholar on imperial Chinese law is Philip C.C.

Huang, who has conducted extensive research on both judicial and extrajudicial mediation from the 1760s to 1900s based on civil case records from three counties: Baxian (in Sichuan), Baodi

(near Beijing), and Xinzhu (in Taiwan).3 While Huang’s research confirms that there was indeed a strong emphasis placed on informal (extrajudicial) and semiformal mediation, he also successfully

3 Philip C. C. Huang, Civil Justice in China: Representation and Practice in the Qing, (Stanford: Stanford University Press, 1996), 3. 7 complicates reductive claims about imperial Chinese law, as well as “official” narratives about the relationship between Confucianism and mediation. Tese official narratives paint community mediation as an instrument for or expression of Confucian notions of compromise and renqing

—“the kinds of courtesies and considerations that help to maintain peaceable day-to-day human relations.”4 Yet, as this first chapter illustrates, there is much more to be said about the lived realities of community mediation during this era—its implications for the average disputant, its relationship to the state, and the diverse collection of factors that led to its popularity.

Why specifically the Qing Dynasty—not before or after? Qing China, in many ways, embodied a compelling liminal identity that warrants scholarly attention. One one hand, the

Qing inherited a Confucian state ideology from its predecessors and allowed traditional values to shape its legal system. On the other hand, the Qing was in many ways a transition into modern

China; many scholars agree that Qing China witnessed profound commercial development and political centralization, both of which contributed to unparalleled developments in the law and conceptions of justice. At the same time, it began to confront the realities of Western imperialism, modernity and modernization, and legal rationality, experiencing firsthand the profound tensions between tradition and change. It is thus the Qing Dynasty that best illuminates its complex philosophical underpinnings and its role in China’s civil legal system at large. While the

Republican era (1912-1949) could also offer critical perspectives on China’s dispute resolution system, the warlordism, Japanese invasion, and major civil war that affected the nation during this time may preclude a focused analysis on mediation. Furthermore, as Huang notes, even against the backdrop of numerous political and judicial reforms, “community mediation still played a significant role in the justice system as a whole” during the Republic.5 Te specific context and precedents underlying contemporary People’s Mediation will thus be made clearer if narrowed down to the Qing.

4 Ibid., 61. 5 Huang, “Court Mediation in China,” 285. 8

Te second chapter traces the development of People’s Mediation across three periods: the

Maoist era (1940s to 1978), the reform era (1978-2002), and from 2002 onwards. According to

Hongwei Zhang, official statistics highlight a “U-shaped trend” in the use of People’s Mediation, whereby it hit an all-time low in 2002 and has been rising substantially since then.6 Te number of disputes settled via People’s Mediation peaked at 8.93 million in 2010, the same year that a new Law on People’s Mediation went into effect.7 Te three aforementioned periods capture the rise and fall of People’s Mediation over the past half a century, thus providing a useful framework for exploring how the institution has accommodated the many faces of China’s modernization and development program.

Under Mao's leadership, mediation was divorced from Confucian moralism and imbued with the teleology of revolution. During this During this unprecedented period of anti- intellectualism and anti-elitism, the CCP delegitimized most (if not all) legal institutions except for mediation, whose position as the dominant form of dispute resolution was concretized with the establishment of formal People’s Mediation Committees in 1954.8 In the wake of Mao’s death and Deng Xiaoping’s rise to power, however, People’s Mediation experienced a rapid decline. In many ways, this decline was an inevitable consequence of China’s colossal reform and modernization program: the unprecedented importation of Western legal models ushered China into an era defined by experimentation with legal rationality and formalism, both of which seemed to undermine the “popular” nature of People's Mediation. Yet, in a striking turn of events, the last period of study (post-2002) has witnessed a remarkable revival of the institution.

Tis revival has been supported politically by legislation like the landmark 2010 People’s

Mediation law, which further defines the role and composition of People’s Mediation Committees

6 Hongwei Zhang, “Revisiting people’s mediation in China: practice, performance and challenges,” Restorative Justice 1, no. 2 (2013): 245. 7 Ibid. 8 Stanley B. Lubman, Mao and Mediation: Politics and Dispute Resolution in Communist China,” California Law Review 55, no. 5 (November 1967): 1306. 9

(PMCs), and reiterates its objective to “help [individuals] resolve everyday disputes at the grass- roots level, without having to go to court.”9 While the history of People’s Mediation is convoluted and fraught with ups and downs, this history is a testament to its capacity for “creative transformation”—its capacity to be shaped and sculpted according to changing ideological commitments and sociopolitical landscapes.10

Having established the current state of People’s Mediation in China, the third and final chapter will explore the Confucian Revival and determine whether the continued emphasis on

People’s Mediation can be situated in this modern phenomenon. Recently, many scholars have begun to explore how and why Confucianism, once condemned by the state as a backwards ideology, has re-appeared with vigor in both academic and political discourse. When China opened its borders to join the global economy in the wake of Mao’s death, it also opened up a discursive space for animated debates about Chinese culture and its role in the nation’s present and future—a space defined by what would come to be known as the 1980s “culture fever” (wenhua re). Trough the culture fever, intellectuals across Asia took part in reimagining

Confucianism and negotiating its relationship to the Chinese identity. Yet, this process of reimagination and negotiation also manifested in the political sphere: more recently in 2013,

President Xi Jinping himself made the journey to Confucius’ hometown, Qufu, where he spoke to a crowd of scholars about China’s culture and its enduring glory.

With that in mind, this chapter aims to unpack the relationship between the Confucian

Revival and People’s Mediation in China. It is not a coincidence that the government’s commitment to a “harmonious society” has been mirrored by a push toward People’s Mediation and decline in litigation or adjudication. It is also not a coincidence that mediation now invokes

9 Shahla Ali, “Te jurisprudence of responsive mediation: an empirical examination of Chinese people’s mediation in action,” Te Journal of Legal Pluralism and Unofficial Law 45, no. 2 (2013): 232. 10 Albert H. Y. Chen, “Mediation, Litigation, and Justice: Confucian Reflections in a Modern Society,” in Confucianism for the Modern World, ed. Daniel A. Bell and Hahm Chaibong (Cambridge: Cambridge University Press, 2003), 259. 10 the “social harmony” rhetoric that it embodied in earlier times, back when the influence of

Confucian ideologies in China’s political and legal institutions was much more apparent. In fact,

Carl Minzner writes that China, along with a number of other developing countries, is currently experiencing a “turn against the law.”11 Authorities are re-evaluating past efforts to expand rule of law and reorienting their attention toward mediation. Although Minzner argues that the shift in

China’s attitude is a politicized response “to growing levels of social protest and conflict in the

Chinese system,” I set out to inquire into other visions and concerns underlying this shift.12 In this vein, this final chapter will explore the ways in which the Confucian Revival, coupled with a persistent emphasis on People’s Mediation, is reflective of China’s efforts to construct a particular self-narrative in its encounters with modernity.

Te Case for Examining People’s Mediation

Why is understanding the relationship between the Confucian Revival and People’s

Mediation important? For one, it allows us to grasp the notion that law and culture are inextricably intertwined. Given that laws do not operate in a vacuum, examining the history and current status of dispute resolution in China can illuminate the specific sociocultural context in which legal institutions like People’s Mediation arise and evolve. Te same way we participate in constructing the law, the law participates in constructing and coloring our social worlds. And, as

Clifford Geertz famously writes, “like sailing, gardening, politics, and poetry, law and ethnography are crafts of place: they work by the light of local knowledge.”13 Even something as universally known as “the law,” in reality, hinges on a unique location in time, space, and culture, which invites us to critically consider the questions of how we define Chinese culture and how this definition exerts influence on Chinese law.

11 Minzner, “China’s Turn Against the Law,” 935. 12 Ibid., 938. 13 Clifford Geertz, “Local Knowledge: Fact and Law in Comparative Perspective,” in Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books, 1983), 167. 11

More importantly, this thesis lends itself to a broader consideration of the profound tensions that exist between tradition and modernity, between China and the West, between society and the state—tensions that China has attempted to rationalize through its own catch phrase, “socialism with Chinese characteristics.” Discussions about modernity, however, often perpetuate expectations rooted in the Western capitalist paradigm—for instance, the deeply- rooted Weberian image of modern capitalism as it arose in Europe. In fact, Weber himself believed that modern industrial capitalism failed to emerge in China largely because of Confucian ethics, which seemed incapable of embracing modernization especially to the European imagination. Although Weber’s writings have been refuted by both history and scholarship, the lens through which he observed China still exerts a profound influence on the ways in which we perceive Chinese law.

Tis thesis is not a defense of People’s Mediation or the Chinese legal system at large, but an attempt to situate People’s Mediation within contemporary sociopolitical and cultural currents in China. It serves to contribute to existing literature on Chinese dispute resolution systems by using a unique analytical framework that deconstructs the meanings and realities of People’s

Mediation. Following in the footsteps of scholars like Philip Huang and Randall Peerenboom, I seek to confront fundamental questions about legal modernity in China and to make sense of an institution like People’s Mediation without submitting to the expectations of a Western liberal perspective or without othering it. 12

Chapter 1 Community Mediation in a Confucian-Legalist State

Introduction

Consider Hou Dingyi, chief of the Houjiaying village during the early 1900s, who was involved in a dispute with his neighbor over a tree. Te tree was planted on Hou Dingyi’s property, but its branches crossed over into his neighbor’s land, prompting both individuals to claim the tree’s lumber as his own. Yet in resolving this dispute, there was no regard for the state’s property laws and no efforts to engage in any formal legal proceedings. Instead, “the well-doer of the village” (yixiang shanshi) Hou Yongfu, was called to mediate.14 Upon listening to the case, the mediator ultimately decided to to settle the conflict with a compromise, giving Hou Dingyi the thinner top branches and to his neighbor, the thicker bottom branches. Te compromise was not perfectly fair, given that Hou Dingyi’s neighbor received the more substantial share of lumber, but when asked why he agreed to the mediator’s decision, “Dingyi said it was because his neighbor was poor.”15 Hou Dingyi decided against focusing on trivial details and instead, chose to resolve the dispute on an amicable note. Cases like Hou Dingyi’s, resolved by community mediation before they could escalate into lawsuits, suggest an aversion to formal legal procedures emblematic of a legal culture infused with a Confucian moral order. How “Confucian” this institution really was in the Qing Dynasty is a complex and multifaceted question, but Hou

Dingyi’s attitude in this dispute nonetheless exemplifies the preference for compromise that was thought to characterize this era.

Examining dispute resolution grants us extraordinary insight into the specific tools that ordinary citizens resort to when civil conflicts erupt, as well as the legal or sociocultural contexts

14 Te specific facts of the case are rather limited; all we know about this particular case from Huang’s analysis is that the disputants were neighbors and that the dispute was mediated by the village chief. Philip C.C. Huang, Civil Justice in China: Representation and Practice in the Qing (Stanford: Stanford University Press, 1996), 61. 15 Ibid. 13 that guide their choices. Yet, it is the responsibility of the examiner to consider any assumptions or preconceptions that may color their understanding of a particular legal system. Too often, the test for a functioning legal system is formal legal rationality in the Weberian sense, or a rule of law rooted in neoliberal logic. It is no surprise, then, that the static interpretations assigned to

Chinese law hav persevered as a lasting cliché. Jerome Bourgon writes that “for at least half a century the dominant thesis in European as well as Asian historiography has been that the

Chinese empire had no notion of a separate ‘civil law,’” perhaps because the Great Qing Code, enforced by the empire from 1644 until its fall in 1911, did not contain an independent civil code.16 Tis narrative also relied on the belief that the Code was entirely penal and administrative

—highly authoritative in nature and predominantly concerned with stipulating a variety of punishments for crimes and conflicts. Compared to the Western models that dominate modern jurisprudence, which champion a strict civil-criminal distinction and rights-based legal systems, civil law in imperial China inevitably appears to be less-developed and incomplete.

Yet, the aforementioned line of argument assumes a Western lens to interpret and narrativize the non-Western world. A growing body of scholarship on imperial Chinese law has interrogated and challenged these ideas, pointing out a number of reasons for the perceived gap.

First, as Peter Chan observes, although the Qing Dynasty did not have a separate civil code, civil affairs were discussed thoroughly within and between substatutes—supplements to original statutes that have “their origin in imperial edicts or, perhaps more commonly, in individual legal judgments.”17 Tese substatutes, which were “tucked in the least prominent layer of the [Great

Qing Code],” were certainly not as visible as the denser parts of the Code addressing criminal and administrative affairs, but they existed and shaped the ways in which citizens dealt with civil

16 Jerome Bourgon, “Uncivil Dialogue: Law and Custom did not Merge into Civil Law under the Qing,” Late Imperial China 23, no. 1 (June 2002): 50. 17 Derk Bodde and Clarence Morris, Law in Imperial China: Exemplified by 190 Ch’ing Dynasty Cases (Cambridge: Harvard University Press, 1967), 64. 14 matters.18 Chan also writes that this gap has to do with the unique “governing philosophy of the imperial [Chinese] state.” Te immense scope and scale of the Qing empire mandated a specific hierarchy for the types of matters overseen by the state; political and social concerns justified delegating criminal and administrative affairs to state authorities, while delegating “trivial” civil matters to the local communities themselves. In this vein, scholars like Chan illuminate the various ways in which civil law and affairs presented themselves in social reality. Nowhere is this observation more evident than in Qing-era dispute resolution.

Informal Mediation in the Qing Dynasty

In her work on Qing legal institutions, Sybille van der Sprinkel identifies four methods of dispute resolution—negotiation, mediation or conciliation, arbitration, inquiry—but notes that the boundaries demarcating each method were often opaque and blurred.19 Negotiation, as the name suggests, is a process by which disputants arrive at a compromise on their own, without having to call upon a third party for assistance. Mediation or conciliation involves a third-party mediator, typically a village leader or another esteemed figure in one’s community, who aids the disputants in reaching a settlement. In arbitration, a hearing is conducted by a third party adjudicator who listens to both sides and pronounces a binding decision; the decision is imposed rather than discussed and negotiated. Te last method, inquiry, represents a substantial departure from the previous three approaches in that the dispute is investigated and presided over by government officials. To the extent that there existed fixed methods of dispute resolution, van der

Sprenkel was certainly correct in writing that each approach could overlap and “[shade] into the other almost imperceptibly” depending on the specific facts of the case.20 Tus, while her

18 Peter C.H. Chan, “Te Enigma of Civil Justice in Imperial China: A Legal Historical Enquiry,” Maastricht Journal of European and Comparative Law 19, no. 2 (2012): 324. 19 Sybille van der Sprinkel, Legal Institutions in Manchu China: A Sociological Analysis (London: Te Athlone Press, 1962), 117. 20 Ibid. 15 framework offers a useful window into the distinct processes that constituted dispute resolution during this era, it is perhaps more pragmatic to divide traditional dispute resolution into formal and informal; doing so can minimize potential confusion about specific methods, while concretizing the idea that both were governed by different sets of procedures, players, desired results, and social impacts.

Formal dispute resolution, in its broadest sense, is characterized by the act of truth-finding that is largely absent or under-emphasized in informal mediation. Te most common manifestation of formal dispute resolution was court adjudication, presided over by a magistrate who investigated the conflict, summoned disputants and witnesses to the court to corroborate the facts of the case, and “routinely made decisions about what they thought to be true.”21 Given that there were no prescribed decision-making procedures, magistrate judgements were often coercive and informed by personal motives, but it was nonetheless clear that one of the principal objectives of formal adjudication was to deliver a binding decision based on what was considered to be right and wrong.

On the other hand, informal dispute resolution took place outside the courts, performed under the guidance of a third party mediator. Rather than truth-finding, the mediator’s main responsibility was to assist disputants in negotiating an appropriate compromise and restoring peace to the neighborhood. As the term “informal” implies, disputes settled in this fashion took place outside the courts, and there were no official Qing laws dedicated to formalizing or codifying mediation procedures. Yet, as Zeng Xianyi writes, “codification need not be the sole indicator of mediation’s development into a legal institution, as by both form and purpose mediation belonged to the institution of li zhi, the achievement of political order through li or rites.”22 In other words, while mediation was not an officially codified practice, it manifested as “a set of socially accepted customary laws” based on the Confucian notion of li, with which both the

21 Huang, Civil Justice in China: Representation and Practice in the Qing, 16. 22 Zeng Xianyi, “Mediation in China—Past and Present,” Asia Pacific Law Review 17 (2009): 5. 16 state and its people navigated daily life.23 Te prevalence of informal mediation largely stemmed from its ability to maintain “amiable relationships with kin and neighbors in the face-to-face community (or Gemeinschaft) in which they lived,”—a key element in building an ideal

Confucian society based on the spirit of benevolence and harmony.

Against this backdrop, informal mediation was the preferred dispute resolution mechanism for virtually all types of intervillage and intravillage disputes, the four most common of which pertained to land, debt, marriage, and inheritance.24 Philip Huang’s extensive studies on

Qing and Republican-era legal institutions, based on archival records from three different counties, suggest that mediated resolutions generally fell under two types: those mediated by middlemen (zhongren) and those mediated by kin or community leaders. Both types of mediators shared the same goal of helping disputants resolve their conflicts through a negotiated compromise, but they dealt with different types of cases: the former dealt with land sales, loans, and marriages, and the latter, family and neighborhood disputes.

As Huang notes, “almost all villagers were involved in one way or another in contractual relations (including marriage contracting), and those transactions gave rise to a fair share of disputes.”25 Tese transactions were typically facilitated by middlemen (zhongren), whose role more closely resembles that of a peacemaker than a broker; these were men whose personal relationship to the parties or public reputation granted them the responsibility of mediating should conflicts arise. In land sales and purchases, for instance, parties relied on middlemen to

“[see] to a conflict-free contract.”26 Achieving such a contract required middlemen, firstly, to ensure that customs associated with buying and selling land were properly followed. If one sibling was selling land, the middleman was obligated to make sure that other siblings or family members

23 Ibid. 24 Daniel A. Bell and Chaibong Hahm, Confucianism for the Modern World (London: Cambridge University Press, 2003), 269. 25 Huang, Civil Justice in China: Representation and Practice in the Qing, 52. 26 Ibid., 55. 17 had approved of the sale; if older relatives were alive but too old to manage household matters, he ensured that the seller was the official head of household. When conflicts arose, minor or serious, the middleman was invited to help the disputants negotiate a compromise; on the topic of land- related disputes, Madeline Zelin writes that according to records preserved by the Baxian Archives

(1735-1795), “in Baxian as elsewhere in China, [the pursuit of redress] almost always ended in referral to mediation.”27

Te second type of cases that Huang identifies are family or neighborhood disputes, which revolved around issues like household division, inheritance, land boundaries with neighbors, filial piety, as well as the occasional smaller squabbles that occurred within or between individual family units. Tese cases counted on a different type of third party mediator: typically a well-respected older or middle-aged man who served as a leading figure within his family and of the community.”28 In the case of larger, more serious disputes that involved these leading men themselves, individuals of similar ranking or reputation from other villages were invited to mediate.29 Regardless of where they came from, these were men who possessed reputable moral character and “were usually noted for their integrity, impartiality, and good sense,” making them easily identifiable within every village.30 Examples of renowned mediators in the records of the

Shajing village include, for instance, Li Ruyuan, a 65-year old village doctor; Zhang Rui, a 42- year old man thought to be the village’s wealthiest individual; and Yang Yongcai, a 60-year old man who oversaw the village temple.31

27 Madeline Zelin, “Te Rights of Tenants in Mid-Qing Sichuan: A Study of Land-Related Lawsuits in the Baxian Archives,” Te Journal of Asian Studies 45, no. 3 (May 1986): 521. 28 Huang, Civil Justice in China: Representation and Practice in the Qing, 55. 29 Martin C. Yang, A Chinese village: Taitou, Shantung province (New York: Columbia University Press, 1945), 165. 30 Hsiao, Rural China: Imperial Control in the Nineteenth Century (Seattle: Washington University Press, 1960), 291. 31 Huang, Civil Justice in China: Representation and Practice in the Qing, 58. 18

Martin C. Yang’s ethnography on a village in the Shandong province during the late Qing provides a comprehensive description of how a typical episode of mediation was carried out.32

First, the invited or self-appointed mediator(s) approach the disputants to appraise the facts of the case and “collect opinions” on the issue from other villagers. Based on initial judgments, they would then propose and negotiate a solution. Given that the proposed solutions were not always accepted at first, in many instances, “the peacemakers [had] to go back and forth until the opponents are willing to meet halfway.”33 As seen in the example of Hou Dingyi’s property dispute, in which he and his neighbor feuded over a tree, the mediators’ decisions were not always perfectly fair. Mediators approached disputes more holistically, taking into account various external factors like family relations, income, and reputation. For instance, the mediator in Hou

Dingyi’s case allotted him the smaller share of lumber, which may appear to be an arbitrary or unjust decision. Yet, in reality, this compromise emerged from broader considerations of his neighbor’s current circumstances: because his neighbor was poor, it would be considered selfish for Hou Dingyi to insist on receiving an equal or larger portion.

After the mediators and disputants reached a settlement, community mediation frequently ended in a village feast—a ritualistic display of concession and compromise that marked a successful conclusion. Tese formal parties were attended by the mediators, the village leaders, and the heads of the disputing families, who were all expected to engage in civil and cordial dialogue. Te feast not only formally terminated disputes, but also provided a performative space in which attendees could publicly demonstrate that “the bad feelings formally existing between the disputants were now patched up.”34 Interestingly, there were also unwritten rules regarding the feast expenses. As Yang observes, if the conflict is resolved through a mutually-negotiated settlement, the expenses are divided equally; if, however, one party voluntarily conceded or was

32 Yang, A Chinese Village, 165. 33 Ibid. 34 Hsiao, Compromise in Imperial China, 58-59. 19 considered blameworthy, the expenses are covered entirely by the individual or family at fault.35

Te feast was thus treated as a critical opportunity for the wrongdoer to compensate for their damaged reputation, and in doing so, restore peace to the village.

It is clear, then, that civil justice during this era went beyond legal particularities and was elaborately tailored to the social values implicated in village life—especially the value of harmony and peaceful interpersonal relations. Here, we can see the ways in which community mediation served more than just the strictly legal or utilitarian function of resolving disputes. In fact, one of its most vital characteristics during this era was its performative “didactic function,” which allowed it to instill within society “the virtues of compromise and other related Confucian virtues.”36 Mediation was an educational process as well as a legal one, designed to ensure that all parties involved would engage in reflexive moral cultivation and self-criticism.

Fei Xiaotong observes, for instance, a local mediator would first “scold both sides in the dispute” and exclaim, “Tis incident is making our entire village lose face! Admit your wrongs and go home.”37 In another account, one mediator was described to have scolded disputants as

“shameless (wuchi)” or “unscrupulous and unfilial (buxiao).”38 Assuming the role of a stern teacher, he never hesitated to reprimand each party not only for their individual part in the conflict, but also for their inadequate attention to the community’s well-being and to core

Confucian values. Yet, as both accounts make clear, the mediator would thereafter lower his voice, adopt a more compassionate character, and deliver a lecture on the virtues relevant to the dispute.39 In doing so, mediation (and the feasts that followed) ultimately turned conflict into a

35 Goh Bee Chen, Law Without Lawyers, Justice Without Courts: On Traditional Chinese Mediation (Farnham: Ashgate Publishing, 2002), 80. 36 Lubman, Bird in a Cage: Legal Reform in China After Mao, 68. 37 Fei Xiaotong, From the Soil: Te Foundations of Chinese Society (Berkeley; Los Angeles; London: University of California Press, 1992), 104. 38 Weiting Guo, “Living with Disputes: Zhang Gang Diary (1888–1942) and the Life of a Community Mediator in Late Qing and Republican China,” Journal of the Canadian Historical Association 24, no. 2 (2013): 225. 39 Fei, From the Soil, 104. 20 crucial site of introspection through which disputants were expected to reflect on the meanings of the lectures and on their own actions. Tis didactic role is precisely the reason that mediators were often well-versed in the Confucian classics or skilled in the art of verbal instruction or communication; only then could they manage the multifaceted persona demanded by the work of mediation—a persona that gracefully alternates between teacher, judge, and confidant.

Zhang Gang of Ruian county (near Shanghai) was also one of these individuals. His diary, which he began writing in 1888, has opened up a window into the everyday realities of community mediation during the late Qing Dynasty. Zhang Gang was born in 1860 to a family belonging to the lower gentry, a class which enabled him to receive a civil service examination degree by the time he was 21 years old.40 He failed to pass subsequent levels of the examination and become a formal government employee but was still able to mobilize his knowledge to serve his community on a more local scale. At first, he was invited to teach classics and literature in public schools; indeed, his mastery of Chinese classics “enhanced his connection with the county and regional élites,” allowing him to build a superior reputation as a well-educated and judicious man.41 Unsurprisingly, people across the county began to approach Zhang Gang with their woes and disputes. In discussing Zhang Gang’s prominence, Weiting Guo writes,

He was mature enough to handle complex affairs within his family. In the village, he was widely perceived as possessing profound understanding and as a person who was amenable to reason. His wisdom and insight made him a good candidate to judge between right and wrong (pin’an or panquzhi ) and often to propose appropriate solutions.42

Zhang Gang undoubtedly possessed the traits that defined an ideal mediator: sophistication, wisdom, and composure. Although Zhang Gang’s career as a mediator began with disputes within his own family, his case load multiplied as news of his expertise spread throughout the community, and he eventually ended up mediating larger, more complex inter-village disputes as

40 Guo, “Living with Disputes: Zhang Gang Diary (1888–1942), 225. 41 Ibid. 42 Ibid., 226. 21 well—the most common of which entailed loss of life and property, loss of face, and financial or economic losses. In line with the processes described by Philip Huang and Martin Yang, Zhang

Gang approached every episode of mediation as an opportunity to not only end a conflict peacefully, but educate and advise disputants on an appropriate compromise. He would first begin with unabashed sternness, unafraid to verbally punish disputants as necessary, but would subsequently shift his tone to a manner more conducive to repentance and reflection.

Law, Culture, and Legal Culture in Imperial China

Without a doubt, the pervasive tendency to mediate conflicts before seeking formal legal redress reveals the heart of the Qing era’s legal culture, as well as the inner-workings of imperial

China’s cultural system at large. Yet understanding the relationship between civil justice during the Qing Dynasty and its culture warrants a discussion of the relationship between law and culture on a more basic level. Laws do not operate within a vacuum. In many ways, they simultaneously reflect and reinforce the traditions, practices, values, or attitudes—what we might call “culture” in a broad sense—embedded within a particular society. As Naomi Mezey notes, however, there is a compelling distinction to be made between examining law and culture, and examining law as culture; while the former imagines a boundary separating the two concepts, the latter perceives them to be inextricably tied together and embedded within each other, based on the understanding that neither law nor society operates independently. It is thus perhaps best to view them as two interrelated parts of a “dynamic, interactive, and dialectical” relationship in which the “law is recognized as both constituting and being constituted by social relations and cultural practices.”43

For over two thousand years before the fall of the Qing Dynasty in 1911, China’s legal system simultaneously constituted, and was itself constituted by, a deeply-rooted commitment to

43 Naomi Mezey, “Law As Culture,” Te Yale Journal of Law & the Humanities 13 (2001): 46. 22

Confucianism. As Joseph Chan notes, the term “Confucianism” can be used at a variety of levels: as “philosophical thought, political ideology, actual state policies and practices, or way of life.”44

During the Qing Dynasty, Confucianism functioned as all of these at once, simultaneously informing the public’s worldview and shaping state institutions. Yet as I will discuss toward the end of this chapter, Confucianism was, in reality, only one part of a much longer and more complex story of the Chinese cultural heritage. Despite a discursive and ideological commitment to Confucianism, the history of the Qing is a history of conquest, law, and violence that deviates considerably from the ideal Confucian worldview. Tat being said, this section of the chapter aims to tell the first part of the story: Confucianism was indeed a central pillar of imperial

Chinese thought, providing most of the public language and moral theory that the Qing state wove into its legal system. Tis section will spell out fundamental Confucian principles and the ways in which they helped to construct a unique legal culture based on the ideal of wusong, or no- litigation.

Central to Confucius’ thought was the question of what a “good society” ought to be. He lived in the Spring and Autumn Period (770 ~ 476 BC), a time of unrest and a gradual decline of the political and social order that existed during the Western Zhou dynasty (1045 ~ 771 BC).

How does a society remedy chaos? And under such circumstances, how can it achieve goodness, harmony, and order? While many would have turned to law as a means of upholding specific interests and penalizing deviance, Confucius did not believe that law alone could be the basis of a good society, prescribing “instead the cultivation of [virtues].”45 Derived from what he believed were ancient truths, these virtues are “the instruments with which to nourish and to teach”—

44 Joseph Chan, “A Confucian Perspective on Human Rights for Contemporary China,” in Te East Asian Challenge for Human Rights, edited by Joanne R. Bauer and Daniel A. Bell, (London: Cambridge University Press, 1999), 213. 45 Dingxin Zhao, Te Confucian-Legalist State: A New Teory of Chinese History (London: Oxford University Press, 2015), 180. 23 crucial to the cultivation of not only the ideal Confucian ruler and subject, but also the creation of a harmonious society.46

Te highest moral ideal within Confucian moral philosophy is ren, which refers broadly to the concept of benevolence or humaneness.47 While ren evades a singular definition, it can be seen as an innate concern for others and the shared recognition that as a member of a family, state, or even the world at large, we are not alone. As written in the Analects, “when Fan Chi asked Confucius about benevolence, Confucius replied, ‘It is to love all men.’”48 Mencius, one of the most renowned Confucian scholars after Confucius himself, famously illustrated the concept of ren by introducing a scenario in which one witnesses a child about to fall into a well. Most individuals, without exception, will immediately experience alarm and perhaps even attempt to save the child—not due to what they think ought to be an acceptable reaction, but due to “a feeling of commiseration [that] is essential to man.”49 Mencius writes that this sense of commiseration is an intrinsic expression of ren, and that “if one is without the heart of compassion, one is not a human.”50 In other words, ren is the root of what it means to be human in this world.

As Hsiao writes, “the whole of social and political life, as Confucius saw it” was a site for the realization or manifestation of ren.51 Cultivation of ren begins as filial piety within the household and expands outward, eventually extending filiality to all those who are both near and distant. Indeed, the very beginning of the Analects reads: “Te Junzi applies himself to the roots.

Tat being established, all practical courses naturally grow up. Filial piety and brotherly respect!

46 Hsiao, History of Chinese Political Tought, Volume I: From the Beginnings to the Sixth Century, A.D. (Princeton: Princeton University Press, 1979), 108-109. 47 See Du Weiming, Humanity and Self-Cultivation: Essays in Confucian Tought (Boston: Cheng & Tsui Co., 1999). 48 Analects 12:22 49 Mencius 3A.6 50 Wang and Solum, “Confucian Virtue Jurisprudence," 118. 51 Hsiao, History of Chinese Political Tought, 102. 24

—are they not the root of all benevolent actions?”52 As individuals cultivate benevolence through their interactions with the rest of society, they necessarily develop an ability and willingness to manifest other virtues as well. As written in Te Great Learning, “their persons being cultivated, their families were regulated. Teir families being regulated, their States were rightly governed.

Teir States being rightly governed, the whole kingdom was made tranquil and happy.”53 Tis passage not only captures the seemingly infinite reach of ren, but it also illuminates the way in which benevolence mediates the relationship between people and the state. Mencius further developed the concept of ren to invent “benevolent government” (renzheng), modeled after the virtuous sage kings who ruled throughout China’s ancient past. A benevolent government exercises fairness, provides physical protection nourishment, refuses to exploit or hurt its subjects, and treats its people as if it were a parental figure.

To manifest ren in oneself or in government, one must adhere to li. Li possesses a vast range of meanings but is roughly translated to “ritual propriety,” referring to what may be considered the normative domain of social life in its entirety. Confucian texts make clear that li originates from age-old rituals like ancestor worship, burial, and sacrificial practices, along with the myriad rules associated with performing them; as stated in Xunzi, for example, “the offering up of dark wine in the goblet, the offering up of raw fish on the sacrificial stand, and the placing the grand broth on the sacrificial stand first are unified by a single principle”—the principle of ritual propriety.54 Yet, it gradually became clear that essentially everything in life, not just ceremonial rites, involve “ritualistic” properties. Eventually, the scope of the term expanded to include all of the etiquette, manners, and customs that guide social interactions. As society’s normative domain, li is what socializes us into members of a larger collectivity, family and beyond. It is also a crucial medium through which we mutually coordinate our behavior or

52 Analects 1:2 53 Te Great Learning I. 54 Xunzi 204. 25 attitudes and “turn our society into a harmonious and aesthetic space.”55 By observing li, we internalize shared social values and learn to express them “with harmonious ease” in our everyday lives.56 We learn, most importantly, the proper ways to cultivate and embody other Confucian virtues like ren.

Fei Xiaotong observes that rural Chinese society is governed by “a rule of rituals.”57 A rule of rituals seems on a surface level to be “a self-generated form of social order in which people's actions are unrestrained by laws.”58 However, as he points out, to call it “self-generated” would be inaccurate, given that a rule of rituals requires a profound process of self-cultivation and self- correction; only through this process can individuals learn to internalize the traditions, values, and public opinions that bind society together. Tis is perhaps what Xunzi alluded to when he wrote, “ritual is a means of nurture”: abiding by li provides a critical opportunity for individuals to cultivate moral character and maintain an ordered society.59 Unlike a rule of rituals, however, a

“rule of laws” utilizes laws and punishments to prescribe external boundaries around behavior.

Te Confucians believed that laws were certainly able to punish wrongdoings but unable to promote moral behavior. Punishment can encourage obedience but fails to help wrongdoers understand what constitutes virtuous behavior. Tis view is addressed in one passage of the

Analects which reads,

Te Master said, “If the people be led by laws, and uniformity sought to be given them by punishments, they will try to avoid the punishment, but have no sense of shame. If they be led by virtue, and uniformity sought to be given them by the rules of propriety, they will have the sense of shame, and moreover will become good.”60

55 Kyung-Hee Nam, “Li (禮), or Ritual Propriety: A Preface to a Confucian Philosophy of Human Action,” Diogenes (2017): 1. 56 Analects 1.12 57 Fei, From the Soil. 58 Ibid., 99. 59 Xunzi 201. 60 Analects 2.3 26

From this argument, “we know that Li has an internal aspect and is necessarily connected with the emotion of shame and the virtue of Yi.”61 Yi is another one of the cardinal Confucian virtues, defined as righteousness, justice or, in more specific terms, the “proper motivational attitudes of abiding by Li.”62 Te Analects does not explicitly define the term itself, but Mencius provides a framework with which to understand its meaning: “the feeling of shame and dislike is the principle of righteousness.”63 Tis “feeling of shame” that Mencius draws attention to is the negative emotion that gets evoked when a moral agent fails to make the right decision or conform to Li. Where li is our moral agency, yi is the moral compass that guides it. In the context of

Confucian virtue jurisprudence, Linghao Wang and Lawrence Solum write that yi is what

“harmonizes external rightness (li) with internal rightness (ren).”64

Confucius and his followers believed that cultivating the three aforementioned virtues leads to a harmony (he), which is widely conceptualized as the culmination of the Confucian

Way. Harmony is perhaps the most central theme within Confucian thought, “[penetrating] all levels and dimensions of Confucian discourses.”65 According to Chenyang Li, harmony within the Confucian context “a metaphysical as well as a moral concept; it both describes how the world operates and prescribes as to how human beings ought to act.”66 Scholars often evoke music to elucidate the metaphysical significance of harmony; as Li notes, the original meaning of harmony in the Confucian context emerges from “the rhythmic interplay of various sounds, either in nature or between human beings, that is musical to the human ear.”67 As a moral concept, the ideal of harmony compels individuals to manifest virtues in their everyday interactions. In the

Analects, Confucius elaborates on the significance of harmony to both individual and collectivity,

61 Wang and Solum, “Confucian Virtue Jurisprudence,” 109. 62 Ibid., 107. 63 Mengzi 3A.6 64 Wang and Solum, “Confucian Virtue Jurisprudence,” 114. 65 Ibid., 173. 66 Chenyang Li, “Te Confucian Ideal of Harmony,” Philosophy East and West 56, no. 4 (October 2006): 427. 67 Ibid., 584. 27 writing that “the gentleman harmonizes (he) and does not does not merely agree (tong). Te petty person agrees, but he does not harmonize.”68 Harmony as understood by Confucians does not imply a society devoid of differences, but rather a society in which individuals are able to coexist despite their differences. It is a society in which individuals mutually observe li, extend ren, and practice the virtue of concession rather than competition.

It is in the name of harmony that Confucius once said, “In hearing litigation, I am no different from any other man. But if you insist on a difference, it is, perhaps, that I try to get the parties not to resort to litigation in the first place”—a statement that would be etched into the legal theory and culture of imperial China.69 In traditional Chinese legal theory, litigation was considered a symbol of moral degradation—the idea that “li or virtuous relationships have already broken down.”70 Litigation rates were consequently treated as an index of the state’s good governance and of the citizens’ good moral character. Recall from the Analects that “if [the people] be led by virtue, and uniformity sought to be given them by the rules of propriety, they will have the sense of shame, and moreover will become good.”71 An individual who tirelessly conforms to li and acts in line with a Confucian moral compass should feel too ashamed to litigate a claim that is unwarranted, unjust, or simply untrue. Te individual should choose to observe li and preserve relationships. Te individual should prioritize compromise and resolve the conflict according to what they believe is best for both parties and their peers. Tus, whenever someone initiated a lawsuit or engaged with a ‘litigation master’ (songshi), “everyone [thought] of a troublemaker, of someone who creates discord.”72

Against this culturally-informed and morally-infused backdrop, “the settlement of disputes by mediation can be seen as a major example of the Chinese legal system’s practicing of

68 Analects 13:23 69 Analects 12:13 70 Chan, “A Confucian Perspective on Human Rights for Contemporary China,” 226. 71 Analects 2:3. 72 Fei, From the Soil, 101. 28 moral principles.”73 Community mediation was deemed the optimal way to resolve conflicts. It was about choosing to abide by virtue rather than seeking absolute justice or adjudicating between right or wrong, winner or loser. It was about being a Confucian “moral gentleman”— someone who extended benevolence rather than competed with others. And finally, it was about striving to maintain peaceful relations within a community and upholding the Confucian ideal of harmony. Only mediation could uphold the value of compromise (rang) and forbearance (ren).

While the Great Qing Code did not contain any statutes or substatutes demanding a disputant to mediate, numerous factors contributed to a litigation-free (wusong) legal culture. Aside from the prospects of experiencing public humiliation, there were weightier measures in place to encourage mediation as well. For instance, many clans devised regulations explicitly prohibiting litigation; according to Sybille van der Sprinkel, one rule read, “Troughout the [village] it is forbidden to stir up litigation. When people are angry with each other for a time, it rests with the mediators to arbitrate and bring about a conciliation.”74 Local officials in imperial China also occasionally issued public notices when assuming a new office or position to assuage public anxieties and to warn against filing lawsuits for trivial affairs.

Te legal culture of Qing China not only resulted in the widespread practice of informal mediation, but also and reproduced itself through proverbs, myths, and folktales, which scholars like Alan Dundes view as “mirrors of culture.”75 Different texts from imperial China each recount different versions of the stories, but their underlying meanings are nevertheless profoundly clear.

One such story recounts the life of Shun, a commoner whose exemplar behavior led him to become one of the most revered sage-kings in China’s history. In fact, Emperor Shun is widely considered to be “the founder of China’s social rules in the family and among the various

73 Philip C.C. Huang, “Morality and Law in China, Past and Present,” Modern China 41, no. 1 (2015): 7. 74 Van der Sprinkel, Legal Institutions in Manchu China, 65. 75 Alan Dundes, “Folklore as a Mirror of Culture,” in Meaning of Folklore: Analytical Essays by Alan Dundes, ed. by Simon J. Bronner (Logan: Utah State University Press, 2007), 53-66. 29 members of society.”76 Over four thousand years ago, as the tale goes, disputes abounded among peasants in the Lishan region and fisherman in the Leize region. To resolve the disputes, Shun himself traveled to and lived in these regions, observing, instructing, and conversing with its people. Within one year, “things had completely changed, and the people in the two regions were all friendly to and willing to make concessions to one another.”77 Impressed by his magnanimity,

King Yao selected Shun over his own son to be the successor. In describing Shun’s ascension to the throne, this allegory is one that is interwoven with Confucian moral thought and positively reinforces the value of being a benevolent individual like Emperor Shun.

Tere are also weightier stories that reveal the sheer extent to which mediation, not litigation, was to be prioritized. Xunzi cites one particular tale based on a father and son who had resorted to litigation when conflict arose. According to this story, a father filed a formal lawsuit against his own son, allegedly due to the son’s unfilial behavior. Confucius, who had been serving as the Minister of Justice in the state of Lu at the time, ordered both individuals to be detained together.78 Te pair remained in prison for three months, until the father finally requested to withdraw the case. Upon being freed, “father and son embraced each other, wept, and vowed never to litigate again.”79 To the outside observer, these stories and their messages may certainly seem unusual, perhaps even incomprehensible. Indeed, several analyses suggest that the

Confucian emphasis on community mediation “[impeded] development of the rule of law” and precluded discourse on individual rights in China—both of which are claims that will be unpacked and explored in the following chapters.80 Despite these claims, in making sense of imperial China’s unique, mediation-focused legal culture, Randall Peerenboom reflects,

76 David Wu, “Emperor Shun Inspired by Example,” Te Epoch Times, July 17, 2011, https:// www.theepochtimes.com/emperor-shun-inspired-by-example_1495837.html. 77 Bell and Hahm, Confucianism for the Modern World, 263. 78 Xunzi, Youzuo. 79 Bell and Hahm, Confucianism for the Modern World, 264. 80 Zeng, “Mediation in China—Past and Present,” 9. 30

Although far from perfect, traditional methods such as mediation offer many advantages. Both parties save face, fully participate in the proceeding, and shape the ultimate solution. Te process, usually faster and cheaper than more formal methods, allows for a more particularized justice and for the restoration of social harmony, with both sides feeling they have received their due.81

Re-evaluating the Link Between Mediation and Confucianism

Analyses of Qing-era civil justice reveals a prevailing value-based preference for informal mediation. Yet, there are three common interpretations of Qing legal culture that are worth interrogating and updating in order to give voice to all of the era’s complexities. First, this section will reveal that community mediation was seen not only as the more harmonious dispute resolution method, but also as the more practical method—a means to avoid the substantial

financial and social costs associated with litigation. Second, while many accounts paint community mediation as universally-preferred, scholars like Philip Huang point to “semiformal justice—a space in which informal and formal civil justice interact—was an equally popular option. Finally, despite the strong emphasis on Confucianism in discussions about the Qing-era legal system’s philosophical underpinnings, closer analyses illuminate the Legalist tendencies that shaped and informed the legal system.

I. Practicality of Mediation

From the perspective of Qing citizens, mediation reflected not just a natural preference for the Confucian ideal of social harmony. In reality, it was also seen as a practical tool connected to

“the universal dread among the people of coming before courts, and having anything to do with their magistrates.”82 Litigation involved excessive amounts of time, financial costs, and harsh treatments, forcing the formal legal system to assume a morally corrupt and “parasitic” character

81 Randall Peerenboom, “What’s Wrong with Chinese Rights?: Toward a Teory of Rights with Chinese Characteristics,” Harvard Human Rights Journal 6 (1993): 55. 82 Jerome Cohen, “Chinese Mediation on the Eve of Modernization,” California Law Review 54, no. 3 (1966): 1212. 31 within popular imagination during this era.83 For one, many courts were located in areas far from the rural villages that housed the majority of China’s population. Transportation fees added up for many litigants, depending on how far away they lived, and how many times they had to appear before the magistrate. Transportation fees were minimal, however, compared to the fees that one had to pay throughout the course of a lawsuit, especially if it reached the trial stage. Huang notes that contrary to common belief, the cost of filing a civil lawsuit (as opposed to major criminal lawsuits or those involving large properties, though relatively high from the perspective of a lowly peasant was not insurmountable. For example, “the cost to a litigant…was about one yuan for

filing a plaint and another 4.5 yuan to see a lawsuit involving up to 100 yuan through to a court judgment.”84 Costs may not always have been exorbitant, but they certainly accumulated for cases that were protracted for months by corrupt “litigation masters (songshi)” or yamen clerks who sought to extract as much money as possible from disputants. It is thus no surprise that one proverb states, “If the six doors of the yamen are open wide, those who have right on their side but have no money will not enter.85 Te expenses of formal legal procedures, coupled with the ever-present risk of losing the case, generally rendered litigation infeasible and unfruitful.

Distrust in the Qing-era magistrates and local bureaucrats also proved to be a major deterrent of litigation. In many cases, “resort to the magistrate often proved a degrading and harsh experience.”86 Depicted as lazy, corrupt, and merciless, many magistrates notoriously utilized torture to obtain evidence or confessions, and sometimes “illegally incarcerated one or more of the litigants.”87 Yet even the virtuous magistrate who embodied the notion of benevolent governance faced severe knowledge and resource constraints. Magistrates were not trained or

83 Bradley Reed, “Money and Justice: Clerks, Runners, and the Magistrate's Court in Late Imperial Sichuan,” Modern China 21, no. 3 (July 1995): 346. 84 Huang, Civl Justice in China, Representation and Practice in the Qing,” 182. 85 Chen, Law Without Lawyers, Justice Without Courts, 76. 86 Robert F. Utter, “Dispute Resolution in China,” Washington Law Review 62, no. 3 (July 1987): 385. 87 Cohen, “Chinese Mediation on the Eve of Modernization,” 1214. 32 experienced in handling legal matters and were therefore unequipped to formulate legally-sound decisions in a transparent manner; this notion is captured by one popular proverb, “Of ten reasons by which a magistrate may decide a case, nine are unknown to the public.”88 Teir inexpertness is rather unsurprising, however, given that magistrates during the Qing Dynasty were preoccupied with a host of other day-to-day obligations. Tis era, which underwent a three- fold growth in population and social complexity, inevitably left magistrates to shoulder the responsibility of overseeing multiple villages, local organizations, and sectors at once. In addition to their judicial functions, magistrates also handled county finances, education, and labor.

For this reason, magistrates consigned numerous administrative responsibilities to the yamen clerks and runners, who served as the local magistrates’ main staff members. Clerks and runners were authorized to take on a number of duties connected to the legal process—from communications and file maintenance to the processing of legal case work. Yet, their work involved soliciting “customary fees” from litigants at essentially any stage of a legal proceeding.

Although these fees actually constituted an important source of revenue for local government, both the state and the public viewed this practice as “a prime example of the greed and parasitic nature of these ‘yamen vermin.’”89 In a memorial regarding the state of corruption in Sichuan during the late 1800s, Shaanxi circuit censor Cheng Boluan wrote,

Te primary reason for the proliferation and backlog of legal cases at the local level was not the negligence of officials but was rooted instead in the collection of fees by clerks and runners. Te possibility of personal enrichment presented by these fees…inevitably led yamen underlings to dupe unwitting local residents into presenting minor grievances before the magistrate rather than resolving them through informal mediation.90

As this memorial suggests, yamen clerks and runners were seen as corrupt agents with ulterior motives; they were depicted in both popular writings and official memos as individuals who leeched off of “unwitting local residents” for personal gain. Teir behavior not only disrupted

88 Ibid., 1212. 89 Bradley Reed, Talons and Teeth (Stanford: Stanford University Press, 2000), 200. 90 Reed, “Money and Justice: Clerks, Runners, and the Magistrate's Court,” 365. 33 village peace by tempting individuals to escalate minor conflicts, but also infamously led local residents to financial ruin; according to Martin Yang, nine out of ten families who filed lawsuits have had to surrender substantial amounts of property.91 Granted, these unforgiving depictions did not always correspond to the empirical realities of yamen activities, as Bradley Reed demonstrates in his analysis of archival materials from Baxian County. Even so, such depictions lived on in popular imagination and undoubtedly compelled individuals to avoid the costs associated with resorting to the formal legal system. It is clear, then, that many individuals preferred informal mediation not because they believed it would promote social harmony, but because it was the more practical course of action.

II. Semiformal Justice

While it is certainly true that informal mediation was a popular method of dispute resolution due to its practicality, we must challenge the notion that informal mediation was universally practiced. Official narratives written by the Qing state, coupled with idealistic representations of its social relations, would have us believe that due to prevailing Confucian values, “the Chinese tend to shun disputes.”92 And, in the rare case that disputes do arise, informal mediation was the only way to effectively resolve a dispute and produce a mutually- agreeable compromise. Analyses of Qing-era case records, however, reveal a fundamental gap between these official narratives and the empirical reality of a society that was, in fact, regularly exposed to and influenced by mechanisms of formal justice—both implicitly and explicitly. In reality, community mediation did not always produce a perfect success rate. When mediation failed, disputants inevitably “[redirected] their complaints to the magistrate, and dispute resolution would formally enter judicial procedures.”93

91 Yang, A Chinese Village, 166. 92 Chen, Law Without Lawyers, Justice Without Courts, 10. 93 Zeng, “Mediation in China—Past and Present,” 13. 34

Huang’s analysis of Qing-era disputes illustrates that instead of a mediation-litigation binary, civil justice in Qing China frequently took place within a “third realm,” in which the formal and informal interacted, overlapped, and negotiated with each other.94 In this negotiatory space, the boundary between judicial and extra-judicial, allowing both mediators and magistrates to engage each other in the process of dispute resolution. Te third realm of justice consisted of three stages. In the initial stage, disputants file a formal complaint to the magistrate, who would provide an initial response. Plaint forms generally included stipulations that would determine whether a case would be accepted—for instance, land and credit cases required relevant documents, and “illicit sex cases” required “definite proof.”95 Upon receiving the form, a magistrate chooses to accept or reject the case. Accepting a case, however, did not always mean that the magistrate personally oversaw it; if a complaint was considered “too minor,” it was relegated to subordinate personnel like the xiangbao, “quasi-officials” under the magistrate who each oversaw around 20 villages, or yamen runners. If and when a magistrate decided to take on the case directly, he issued summons for a formal court session that would involve investigations and cross-examinations of the opposing parties, witnesses, and any community mediators familiar with the conflict.

Te middle stage, which took place before the formal court session, was characterized by

“a good deal of interaction between the court and the litigants and their would-be informal mediators.”96 Huang notes that about two-thirds of the case records studied were resolved during the middle stage, once again dispelling the belief that most disputes were ironed out without any appeal to formal legal apparatus. Some of these cases were resolved by the litigants themselves, but the majority was concluded through community or kin mediation; given the countless pressures

94 Philip C.C. Huang, “Between Informal Mediation and Formal Adjudication: Te Tird Realm of Qing Civil Justice,” Modern China 19, no. 3 (July 1993): 251. 95 Philip C.C. Huang, Te History and Teory of Legal Practice in China: Toward a Historical-Social Jurisprudence, edited by by Philip C.C Huang and Kathryn Bernhardt (Boston: Brill, 2014), 180. 96 Ibid., 178. 35 associated with court adjudication, many disputants and mediators often took it upon themselves to once again try reaching a settlement out-of-court. Although this “semiformal” mediation was conducted extrajudicially, it was documented in official records and influenced by magistrate recommendations—hence, its quasi-official nature.97 Instead of a feast, semiformal mediation ended when one or both of the disputants filed a petition “[mentioning] that the two parties had observed the appropriate ritual of apologizing to one another, or that the offender had apologized or otherwise made amends, and that both parties wished to end the suit.”98

Tis middle stage, then, was a liminal space located at the intersection between the formal and the informal, between litigation and mediation—what Huang calls “the third realm” of civil justice. Tis intersection is perhaps best exemplified by the xiangbao, who, in many ways, represented a unique bridge between the state and the public. Te xiangbao were nominated by community leaders but officially appointed by the magistrate; this position alone required the xiangbao to serve the dual purpose of relaying state orders to litigants and their community while delivering community opinions back to the court; unlike community or kin mediators, the xiangbao were obligated by law to report to the magistrate, but unlike yamen clerks and runners, they demonstrated a vested interest in amplifying the voice of their villages and local communities. As a result, when a magistrate relegated a civil case to the xiangbao, they proceeded with two sets of interests in mind, allowing formal and informal conceptions of justice to merge, conflict, and ultimately negotiate with one another.

If this middle stage failed to produce a final settlement, the dispute entered its third and

final stage: the formal court hearing, in which the magistrate would pronounce an official decision. In nearly three-quarters of the 221 adjudicated cases that Huang studied, the magistrate ruled in favor of one party, imposing a binding decision that explicitly identified a winner and

97 Zeng, “Mediation in China—Past and Present,” 14. 98 Huang, Te History and Teory of Legal Practice in China, 191. 36 loser.99 In this vein, William T. Rowe asserts that contrary to common narratives about the state’s minimal involvement in formal judicial processes, the state “took a remarkably hands-on role” in their dealings with civil disputes and litigation.100 Imperial officials certainly did not encourage litigation by any means, and it is true that they were preoccupied with countless other administrative duties, but this does not imply that the state did not offer any routes aside from mediation. In fact, according to Rowe, “adjudicating civil lawsuits almost certainly took up more than half of the average county magistrate’s workday by the late eighteenth century.”101 In discussing the operational realities of the Qing-era civil justice, scholars like Huang and Rowe thus invite us to question narratives which paint informal mediation as a universal preference.

Tey instead advance the idea that informal mediation was merely one component of a complex legal system that wove together the informal, the formal, and everything in between.

III. Legacies of Legalism

It is easy at first glance to envision a seamless link between informal mediation and the

Confucian ideal of social harmony; official representations about mediation certainly attempt to express that the preference for mediation in imperial Chinese society was a Confucian one. Yet closer observations and analyses reveal that Qing-era legal culture retained important legacies of

Legalism, which mandated that strict punishments and laws were indispensable for social order.

Indeed, the Qing did not always live up to the ideal of Mencian benevolent government

(renzheng) that key Confucian texts and official representations spoke of. Te reality of “late imperial Chinese society was probably at least as violent on a day-to-day basis as its contemporaries in the West and elsewhere” —referring not just to day-to-day violence among

99 Huang, Civil Justice in China: Representation and Practice in the Qing, 121. 100 William Rowe, “Governance,” in China’s Last Empire: Te Great Qing (Cambridge: Harvard University Press, 2009), 58. 101 Ibid. 37 civilians, but also violence endorsed by rulers themselves.102 As William Rowe writes, the state’s

Confucian message of harmony was in fact “a coping mechanism for dealing with a world which, as its inhabitants well knew, was violent and disorderly.”103 Conflicts were a natural part of social reality, and when they erupted, officials were not averse to resorting to coercive measures of control to ensure that such conflicts were contained. Philip Huang argues that the practice of mediation demonstrates the legal system’s application of moral principles.104 While this is true to a certain extent, another principal driving force behind the popularity of mediation was an extensive Confucian-Legalist regime of social control carried out by the Qing state.

Legalism emerged out a unique historical context that laid the grounds for its rise; it reached its peak toward the end of the Warring States period (475 BC ~ 221 BC), in which

China was divided into rival states that vied for control of the land. During this period, the state of Qin began its ascent. Renowned Qin statesman Shang Yang championed Legalist reforms that hinged on three elements: fa (penal law and bureaucracy), shu (administrative techniques coupled with the ruler’s artful deviousness, and shi (a ruler’s authority over his subjects). In Te Book of

Lord Shang, Shang Yang writes that “the one who could conquer a strong enemy was he, who regarded as his first task the conquering of his own people”105; only by controlling the populace through law can one create a strong state and engineer the state’s rise to dominance. Under Shang

Yang’s tenure, the Qin state ultimately witnessed a rapid expansion of agriculture, military, and systems of reward and punishment. As Derk Bodde and Clarence Morris write, “the dynamic and ruthlessly efficient program of the Legalists, as adopted in Qin, helped that state to triumph successively over its rivals and in 221 BC to found the first universal Chinese empire.”106

102 Ibid., 33. 103 William Rowe, “Violence in Ming-Qing China: An Overview,” Crime, History & Society 18, no. 2 (2014): 85. 104 Huang, “Morality and Law in China, Past and Present,” 7. 105 Book of Lord Shang, 145. 106 Bodde and Morris, Law in Imperial China, 27. 38

Although the Han Dynasty abandoned Legalism in favor of a Confucian revival, this section aims to highlight some of the ways in which the Qing retained Legalist doctrines, revising and re- packaging them in ways that were compatible with the state’s official Confucian ideology.

Legalism, like Confucianism, stems from “strong desire to bring peace and order to a chaotic world.”107 Legalists and Confucians thus both sought to create a well-ordered world but through vastly different mechanisms. While Confucians relied on the concept of li, Legalists saw law (fa) as the basis of government. Arguably the most famous advocate of Legalism in imperial

China was Han Fei, a social and political philosopher of pre-Qin Dynasty China whose writings illuminate the relationship between law (fa) and order. According to Han Feizi, humans are not inherently altruistic—they are instead self-serving and self-interested creatures whose morals, by nature, are incapable of any fundamental change. A strong ruler, then, is not one who rules with virtue but one who capitalizes on humanity’s selfish nature, directing people toward pursuits that directly strengthen the state—namely, agriculture and military. More importantly, however, order can only be maintained under a ruler who is “godlike in his isolation,” and does not let his position waver, someone whose laws are strict enough to instill obedience and deter wrongdoing.108 In Te Five Vermin, Han Fei writes,

Te best rewards are those which are generous and predictable, so that the people may profit by them. Te best penalties are those which are severe and inescapable, so that the people will fear them. Te best laws are those which are uniform and inflexible, so that the people can understand them. Terefore the ruler should never delay in handing out rewards, nor be merciful in administering punishments.109

Han Fei saw debilitating weaknesses in the theories of his predecessors including those of his own

Confucian teacher, Xunzi. In his eyes, Confucianism’s fundamental weakness is its excessive reliance on notions like ritual propriety (li), moral excellence, and education, all of which the

Legalists believed were either irrelevant to or counterproductive for a strong state. Han Fei

107 Zhao, Te Confucian-Legalist State,” 185. 108 Han Fei 39. 109 Han Fei 105. 39 posited that “although a good carpenter can measure accurately by eye, he still uses a rule for measuring.”110 Tis analogy is simplistic but clear: a government which rules by ritual (li) cannot achieve order because “the li are unwritten, particularistic, and subject to arbitrary interpretation.”111 On the other hand, laws that are clear and punishments that are carefully tailored to the gravity of every offense can truly achieve order. Furthermore, Legalists viewed fear as a much more potent and authoritative instrument for regulating human conduct; laws and punishments that are strict enough, though painful, can eventually reduce the scope of government and give rise to a society free from conflict and oppression.

Te legal system of Qing China and that of previous dynasties embodied a paradoxical amalgamation of Confucianism and Legalism—namely, the Confucian “rule by ritual (li)” and the Legalist rule by law (fa); as Geoffrey MacCormack puts it, the system can be described as

Legalist in form and predominantly Confucian in spirit.”112 Te problem of order, although it is one that has plagued mankind since the beginning of time, was of particular importance to the

Qing state. During the Qing Dynasty, China managed to triple its population and double the territory ruled by its predecessor, making it a formidable expansionist empire. Tis process

“entailed securing control over interior or frontier regions that had long been assumed to be part of ‘China’ but had not been effectively occupied or administered by any Chinese state”—areas including Taiwan, along with various parts of southwest and central China.113 Often met with resistance from indigenous inhabitants, administrators of the new imperial order faced the herculean task of minimizing disorder in the aftermath of the Manchu conquest.

In addition to what Rowe describes as state-sanctioned private violence, the Qing government turned to laws and punishments, neatly packaged into a unique system of social control—a system which invoked both ideological and physical force to inculcate in the public a

110 Li, “Philosophical Influences on Contemporary Chinese Law,” 334. 111 Bodde and Morris, Law in Imperial China, 23. 112 MacCormack, Te Spirit of Traditional Chinese Law, 1. 113 Rowe, “Violence in Ming-Qing China,” 88. 40 harmonious Confucian worldview. While the concept of social control evades a single definition and depends on the context in which it is discussed, most theories agree that social control broadly refers to the normative aspects of social life: the ways in which individuals define, react to, or discourage deviance from social norms.114 It covers a wide range of techniques operating across multiple dimensions—public and private, formal and informal, direct and indirect— employed to ensure compliance to a specific set of interests. During the Qing Dynasty, a number of state-sponsored mechanisms performed social control functions, urging (and often forcing) individuals to live as virtuous Confucian subjects of the state. In this sense, while the Qing outwardly displayed a steadfast commitment to Confucianism, it never let go of its Legalist attachment to the law.

Te tensions between Confucianism and Legalism manifested themselves, first, in the ideological control executed by the Qing state. Ideological control was an integral part of the

Qing state agenda: at least at the level of ideology, it was Confucianism that seemed “a most serviceable instrument” for the purpose of preserving peace in an increasingly chaotic world.115 If the masses were to observe the Confucian political orthodoxy, they first needed to become familiar with and responsive to it. However, given that the study of Confucian classics was limited only to the elite literati, rulers sought to break the constraints of illiteracy and make the study of

Confucianism more accessible. In his comprehensive study of 18th century rural control, Kung-

Chuen Hsiao identifies the xiangyue lecture system as one of the most far-reaching mechanisms of state-administered popular indoctrination. Tese lectures, inaugurated by the Shunzhi Emperor,

“were used primarily to publicize imperial instructions, in particular Shunzhi’s ‘Six

Maxims’ (Liuyu), Kangxi’s ‘Sacred Edict’ (Shengyu), and Yongzheng’s ‘Amplified Instructions on

114 For an overview of theories on social control, see Morris Janowitz, “Sociological Teory and Social Control,” American Journal of Sociology 81, no. 1 (July 1975): 82-108. 115 Hsiao, Rural China: Imperial Control in the Nineteenth Century, 185. 41 the Sacred Edict (Shengyu guangxun).’”116 Te Edicts urged people to lead virtuous lives and addressed in particular four distinct matters: social relations, education, livelihood, and order.

In order to broadcast the Edicts, xiangyue who were appointed in each locality delivered lectures on the imperial maxims at fixed intervals—for instance, on the first and fifteenth days of every month.117 Te xiangyue were upstanding individuals who were selected from among shengyuan scholars at least 60 years of age; if no such individuals were available for nomination, respectable commoners with good reputations were also eligible. In some cases, village or clan heads were automatically appointed to serve. Because the goal of the lectures was to popularize

Confucian precepts, the xiangyue were required to employ colloquial speech and even local dialects if necessary. Interestingly, however, the lectures were imbued with a tangible sense of sanctity, consequently resembling public rituals rather than mere opportunities for instruction.

Te props and procedures involved in the lectures all appeared to serve as ritualized expressions of devotion to the imperial edicts. As one account of the lectures describes,

In Hua county, for example, meetings were held in the Hall of Luminous Morality (Minglun tang) inside the Confucian Temple or some other sanctimonious place. An incense altar was set up to display the Imperial Placard (Longpai) on which was engraved the Sacred Edict…Ten a village elder, kneeling before the altar and lifting the placard high above his head, would chant the first maxim from the Sacred Edict to the beat of a wooden clapper, and a local shengyun would explain it in the vernacular.118

In this account, the Sacred Edict is positioned on what Antony calls a “sacred altar” to which attendees of the lecture bow down, and a “master of ceremonies” guides the public through the entire procession, as if to invoke a performance of ritual propriety (li). At fixed spaces and times and with utter solemnity, the lectures supplied principles that became internalized among the rural populace and constituted a significant part of their worldview. While the lectures were intended simply to instruct the illiterate, their use of ritualistic elements inevitably elevated

116 Robert J. Antony, Unruly People: Crime, Community, and State in Late Imperial South China (Hong Kong: Hong Kong University Press, 2016), 48. 117 Hsiao, Rural China: Imperial Control in the Nineteenth Century, 185. 118 Antony, Unruly People: Crime, Community, and State in Late Imperial South China, 49. 42

Confucian precepts to the level of the sublime and in doing so, allowed the state to further exercise ideological control.

However, as an institution of social control, the lecture system became increasingly coercive as it began to evolve into an unofficial ancillary to the Qing legal system. As Hsiao notes, by the mid-1700s, “the imperial authorities were predominantly interested in the reinforcement of those maxims of the Sacred Edict which have to do with the maintenance of order and obedience to the laws.”119 As the scope of the lectures expanded, they no longer revolved around moral edification, but rather around indirect law enforcement—ensuring that villagers far and wide were warned against violating the law and disrupting order. In 1737, Emperor Qianlong declared that in addition to the imperial maxims, main provisions of the Great Qing Code must be distributed in the form of legal handbooks and discussed at the end of every lecture. It was at this point that the lecture system, by upholding the notion that the law must be known to all, began to betray its subtle Legalist qualities. Among the most pressing “evils” addressed after this shift was the danger of “false doctrines”—secret societies, sects, or associations that might have subverted the cultural hegemony of Confucianism. Troughout the rest of the century, the government commanded the xiangyue to insert into their lectures laws pertaining to maxim 7 of the Sacred Edict, which read “Reject false doctrines in order to honor learning.”120 Indeed, the

“learning” mentioned in this maxim applied exclusively to the learning of Confucian ideology.

Before long, the xiangyue “became entwined with the local baojia system,” or the administrative body tasked with matters related to law enforcement, tax collection, and civil control.121 By the turn of the 19th century, the xiangyue’s original role as morally-upstanding

Confucian instructors had metamorphosed into something resembling local arbitrators and even the police; in an imperial edict issued in the 1830s, the Daoguang Emperor wrote that the

119 Hsiao, Rural China: Imperial Control in the Nineteenth Century, 190. 120 Ibid.,187. 121 Zhengyuan Fu, Autocratic Tradition and Chinese Politics (London: Cambridge University Press, 1994), 102. 43 xiangyue’s primary function was to “control the rural neighborhoods and to inspect the p’ai and pao registers (i.e. the pao-chia records),” and that they are responsible for reporting any deviant behavior to local authorities for punishment.122 In many communities, they were also the designated peacekeepers or arbiters of local affairs. Tis transformation was a revealing reflection of the state’s deep-seated anxieties about the problem of order. Laws against feuds and fights eventually became supplementary materials for the xiangyue lectures, read out loud to attendees at every lecture and integrated into legal handbooks. Should the xiangyue or other community leaders fail to prevent disputes, it was not uncommon for courts to use force in administering justice. Tis attitude was duly expressed in a statement by Emperor Kangxi:

Lawsuits would tend to increase to a frightful amount, if people were not afraid of the tribunals, and if they felt confident of always finding in them ready and perfect justice…I desire, therefore, that those who have recourse to the tribunals should be treated without any pity, and in such a manner that they shall be disgusted with law, and tremble to appear before a magistrate.123

Virtuous subjects, according to the Emperor, would choose to mediate on their own volition.

Tose who choose to escalate conflict, on the other hand, should be punished for endangering social stability. During trial, the parties were “flanked by guards wielding bamboo staves and other instruments and were required to remain in a kneeling position on the ground before the magistrate's high bench.”124 Other times, they were illegally incarcerated, often subject to illicit torture. With no lawyers to represent them, parties were also subject to legal torture when the magistrates needed to obtain additional evidence. Although the Bureau of Punishments rarely administered punishments to losing parties in civil cases (as opposed to those in criminal cases), the process of going through a trial itself was profoundly unforgiving. In the public imagination, the courts were ruthless, merciless agents of enforcement. As van der Sprinkel notes, “[a legal case] could end in punishment for the accused, if judged guilty; if he were not, punishment

122 Hsiao, Rural China: Imperial Control in the Nineteenth Century, 203. 123 Cohen, “Chinese Mediation on the Eve of Modernization,” 1215. 124 Ibid., 1214. 44 would be assigned to the unjustified accuser.”125 Whether a party was truly guilty or not, his very choice to litigate was his downfall. Te Chinese, then, are not naturally non-litigious, averse to any violation of the Confucian ethical ideal of harmony (he)—it is indeed more realistic to say that the popularity of mediation hinged on a carefully-crafted system that synthesized both

Confucian and Legalist doctrines.

Confucianism and Legalism, without a doubt, may appear diametrically opposed. On one hand, Confucianism mandates a legal culture based on the cultivation of virtues, but on the other hand, Legalism advocates ordering our unruly world through laws and punishments. Yet, the

Qing Dynasty incorporated the rhetoric and theories of both traditions, creating a legal system that appears contradictory and enigmatic, fraught with questions that seem unanswerable. While it maintained a persistent commitment to Confucianism, it also used punishments unsparingly to pursue its goals. To make sense of this puzzle, however, perhaps we can turn to the ideas of Xunzi, a renowned Confucian scholar who imagined a model of governance that integrated both Legalist and Confucian thinking. Xunzi believed that “rites and law were in fact the two sides of the same coin.”126 While fellow scholar Mencius believed in the inherent goodness of human nature, Xunzi admitted otherwise—that humans are “born with desires of the eyes and ears, a fondness for beautiful sights and sounds.”127 Like his own protege Han Fei, Xunzi saw humans as greedy, covetous, and in need of an external force to guide them onto the right path. On the topic of human nature, he writes,

In ancient times, the sage kings saw that because [people’s] nature is bad, they were deviant, dangerous, and nor correct, unruly, chaotic, and not well ordered. Terefore, for the people’s sake they set up the power of lords and superiors in order to oversee them. Tey made ritual and yi clear in order to transform them. Tey set up laws and standards in order to make them well ordered.128

125 Van der Sprinkel, Legal Institutions in Manchu China, 69. 126 Ming-te Pan, “Confucianism and the Chinese Legal Tradition: Recent Scholarships on Chinese Legal History and Jurisprudence Studies,” Te Chinese Historical Review 11, no. 2 (Fall 2004): 225. 127 Xunzi, “Xing e.” 128 Xunzi, “Xing e.” 45

Despite their agreement on human nature, Xunzi and the Legalists diverged when it came to the law’s basic characteristics. Te Legalists viewed law as a vehicle for repression, a tool designed to command obedience and direct all human activity toward strengthening the state. Xunzi recognized the need for legislation but “advocated for the administration of a system of penal justice by a ruler who is a man of virtue, a ‘gentleman.’”129 Te law should instill virtue, not fear.

It should be set out in accordance with principles of righteousness (yi) and justice. And most importantly, it should be formulated and applied by virtuous leaders with the purpose of inspiring self-cultivation and self-correction. Tis Xunzian vision entailed a legal system “in which rites and moral principles were the theoretical foundation of law and punishment, and law and punishment were the implementation of moral principles.”130

As the Qing Dynasty’s official ideology, Confucianism manifested itself in all aspects of political and social life. Yet, in practice, the Qing state did not always embody the Mencian ideal of benevolent government (renzheng), often implementing Legalist techniques to shape and regulate public behavior. Rather than employing a Confucianist versus Legalist binary, however, many scholars have located a middle path that better captures the essence of politics, law, and civil justice in Qing China. Te widespread practice of community mediation during this era was an inevitable byproduct of this middle path, representing a strategic use of law and punishment to instill a Confucian worldview and minimize social turmoil. Tus, as Rowe reflects, “our image of [the Qing] ought to be revised from that of the harsh and arbitrary paternal disciplinarian of the ‘Oriental Despotism’ school, to that of a beleaguered father trying patiently to keep the peace among his sibling children.”131

129 MacCormack, Te Spirit of Traditional Chinese Law, 53. 130 Pan, “Confucianism and the Chinese Legal Tradition,” 226. 131 Rowe, “Violence in Ming-Qing China,” 89. 46

Chapter 2 Te Evolution of People’s Mediation: Revolution and Reform Introduction

Te diary of Zhang Gang, explored in the previous chapter, has granted us a window into the day-to-day realities of Qing-era mediation and how it informed the public’s perception of the law. Te significance of Zhang Gang’s diary, however, goes beyond its value as an insider’s glimpse into the empirical reality of this legal institutions. It invites us to engage in the more demanding task of deconstructing the challenges that China faced in navigating a new political and sociocultural landscape at the turn of the 20th century. Te Boxer Rebellion, which resulted in a scathing defeat at the hands of a foreign coalition, ushered the nation into a new era fraught with questions about its future. Te 1900s thus brought with it an onslaught of large-scale social, political, and economic reforms (the New Policies) modeled after the West as China began to confront the pressing realities of modernization at full speed. What Zhang Gang’s diary brings to light, fortunately for its readers, is how community mediators who lived through this transition experienced such reforms and what they meant for the institution as a whole.

Te New Policies emulated a number of Western legal traditions as part of China’s broad attempt to strengthen its state-building efforts. Packaged into the New Policies were a number of legal reforms with new legislation like the “Provisional Regulations on Establishing Courts at All

Levels” (Geji shenpanting shiban zhangcheng) and the “Law on Trial and Organization of Supreme

Court” (Daliyuan shenpan bianzhi fa), which initiated the separation of the judicial and executive branches of the central government.132 Granted, financial constraints and the Qing’s creeping decline rendered incomplete many of these reforms, but their immediate effects were tangible and real for community mediators like Zhang Gang. As Weiting Guo notes, “because certain customs were respected and some procedures mixed new and old styles, community mediators had a

132 Guo, “Living With Disputes: Zhang Gang Diary (1888-1942),” 241. 47 chance to adapt gradually to the court system.”133 To keep up with the times, Zhang Gang vigilantly observed court trials and absorbed new legal jargon, navigating the space between old and new—terms like “civil cases” (minshi), “customary law” (xiguanfa), and “civil procedure” (minshi susong).134 As the mediators themselves adapted to the times, so did the institution itself. As this chapter seeks to illustrate, the primacy of mediation was here to stay. It persisted through the vicissitudes of China’s turbulent modern history, ever so swiftly changing its disposition to accommodate a world in flux.

Mediation, indeed, survived the Republican era and still remains active an entire century after the fall of the Qing Dynasty as an institution known as People’s Mediation (renmin tiaojie).

Today, People’s Mediation is one of the most widely utilized forms of dispute resolution in modern China. Executed by over 800,0000 committees consisting of three to nine people, this form of mediation settles around eight million civil disputes throughout the country annually and remains a paramount part of the CCP's legal agenda. Yet, while People’s Mediation certainly inherited the spirit of its Qing-era predecessor, it has undergone pivotal transformations that have left indelible marks on its character. Tese transformations unfolded across three distinct phases, each with its own unique implications for the institution and its relation to Chinese civil society: under Mao Zedong (1940s to 1978), under the reform era (1978 to 2002), and from 2002 onwards. Troughout these three phases, People’s Mediation demonstrated a “u-shaped” trend: it reached a record low in 2002 but has been experiencing a “renaissance” since then.135 Tis chapter thus seeks to explore, in particular, the forces in each phase that has prompted this overarching trend.

People’s Mediation is not just any legal institution dedicated to resolving disputes, but a central part of China’s quest for legal modernity. In delineating the evolution of People’s

133 Ibid., 242. 134 Ibid. 135 Zhang, “Revisiting People’s Mediation in China,” 245. 48

Mediation from its beginnings, this chapter will illuminate the ways in which the institution has had to negotiate its role in the face of revolution, modernization, and hegemonic Western discourse on law. Tis chapter will also begin to explore questions pertaining to the role of

Confucianism in all of this: although Confucianism was officially disavowed for most of the 20th century, has it continued to exert influence on political and legal thought, even if it is “in a subterranean form?” How have traditional values been inserted into contemporary legal culture?

Tese questions evade a clear answer, but the three phases discussed below demonstrate that

People's Mediation is not the offspring of a single tradition: it is constantly being negotiated, reimagined, and redefined as the modern Chinese leadership mixes together worldviews from both past and present to suit contemporary needs.

Stage I: Te Rise of People’s Mediation

A. Maoist Justice

People’s Mediation was born out of the revolutionary ideology cultivated by Chairman

Mao, who redirected and reimagined the trajectory of Chinese legal thought. From the ashes of the May Fourth Movement emerged the Chinese Communist Party (CCP), inspired by the socialist vision of freedom that had animated concurrent movements throughout Europe. Yet the animating spirit behind the CCP was not socialism or Marixism-Leninism, but Maoism—a revolutionary strategy derived from existing socialist models yet tailored to the political, social, and economic realities of China at the time. For instance, unlike the Marxist-Leninist emphasis on the urban proletariat, the Maoist doctrine hinged on the revolutionary potential of the peasantry, arguing in particular that “Chinese Communism has been a peasant, not a proletarian, movement. Another cardinal Maoist invention was the concept of the “mass line,” which John W.

Lewis defines as “the basic working method by which Communist cadres seek to initiate and promote a unified relationship between themselves and the Chinese population and thus to bring 49 about the supported and active participation of the people.”136 Consisting of techniques such as propaganda, discussion, campaign, and exhortation, the mass line was employed to both measure and mobilize popular support for Party policies. As Stanley Lubman writes, “for the CCP,

Maoism was not simply a way of viewing the world, but a program for changing it.”137

Unlike conceptions of justice that characterized the Qing, Maoist justice did not aim to suppress or erase social conflicts; on the contrary, conflict itself was deemed “the very stuff of the social and political process.”138 Mao saw the world through dialectics: no phenomenon can be conceptualized, let alone exist, without its contradictory opposite. He thus writes, “the law of contradiction in things, that is, the law of the unity of opposites, is the fundamental law of nature and of society and therefore also the fundamental law of thought;” only in the constant movement of contradictions are there possibilities for the gears of history and of mankind move forward.139 For this reason, Mao condemned all those who refused to acknowledge contradictions, contending that “the denial of contradiction is ultimately a philosophy of reconciliation and of acquiescence to things as they are.”140 Mao, however, distinguishes between those contradictions that are antagonistic (between the people and the enemy) and non- antagonistic (among the people). Antagonistic contradictions, he writes, must be handled through the “the method of dictatorship”—anything that precludes the enemies from engaging in activity or ideology that undermines the People’s Government. Te enemies should be forced to

136 John W. Lewis, Leadership in Communist China (Ithaca, NY Cornell University Press, 1963): 70. 137 Stanley Lubman, Bird in a Cage: Legal Reform in China After Mao,” 41. 138 Michael Palmer, “Te Revival of Mediation in the People’s Republic of China: (1) Extra-Judicial Mediation,” in Yearbook on Socialist Legal Systems, ed. by W.E. Butler (Dobbs Ferry, NY: Transnational Publishers, 1988), 227. 139 Mao Zedong, “On Contradiction” In Selected Works of Mao Tse-Tung, vol. 1 (Beijing: Foreign Languages Press, 1967), 311-347. 140 Ibid. 50 obey the People’s laws, engage in labor, and “be transformed into new men.”141 On the other hand, contradictions among the people can be reconciled without force:

Towards the people; on the contrary, it uses the method of democracy and not of compulsion, that is, it must necessarily let them take part in political activity and does not compel them to do this or that but uses the method of democracy to educate and persuade. Such education is self-education for the people, and its basic method is criticism and self-criticism.142

Unlike the Qing, which labeled all disputes as signs of antagonism and decay, Mao allowed them to assume a sense of agency, potentiality, and purpose. He conceptualized disputes among the people not as threats, but as indispensable opportunities for “the method of democracy”—which employs the formula “unity-criticism-unity”—to align the people and drive the socialist revolution.143 As Michael Palmer elaborates, “civil disputes, minor criminal offenses, and other contradictions among the people are not antagonistic in nature and express neither opposition to nor alienation from the socialist regime. Tis is seen to contrast with the position in capitalist societies where contradictions remain essentially antagonistic in nature.”144 It is true that Mao’s cardinal work “On the Correct Handling of Contradictions among the People” invokes a contradiction of its own by juxtaposing a call to resolve contradictions among the people with a call to “let a hundred flowers bloom.” Yet, it is clear that Mao’s dialectical universe saw a need for a mechanism like mediation to help implement the “democratic method” of dispute resolution.

If Mao’s dialectical materialism was the basis of Maoist justice, its continued development required a model figure who personified the “democratic method”—someone like Ma Xiwu, a peasant cadre who served as superior court judge of the Shaan-Gan-Ning Border Region

(SGNBR). In March of 1944, the largest newspaper in the SGNBR, the Liberation Daily (jiefang ribao), published an article entitled “Comrade Ma Xiwu’s Way of Judging” (Ma Xiwu tongzhi de

141 Mao Zedong, “On the Correct Handling of Contradictions among the People,” In Selected Works of Mao Tse-Tung, vol. 5 (Beijing: Foreign Languages Press, 1977), 384-421. 142 Ibid. 143 Ibid. 144 Palmer, “Te Revival of Mediation in the People’s Republic of China,” 229. 51 shenpan fangshi). Echoed at the very beginning of the article are the words of Lin Boqu, the then president of the SGNBR government: “[We should] promote Comrade Ma Xiwu’s way of judging in order to educate the masses [on legal practices.]”145 It then proceeds to detail three civil cases: Feng v. Zhang, a marriage dispute involving a cancelled marriage arrangement; Wang v.

Wang, a land dispute between neighbors, and Chou v. Ding, another land dispute over plot boundaries. In each of the three aforementioned cases, Ma is lauded for his unwavering commitment to Maoist justice and the Party’s central policy of the mass line. To be more specific, according to Xiao Zhoulu and Ma Jingping, Ma’s Way prioritizes thorough inquiries over swift judgments, fidelity to Party policies and ideology over codified law, and informal mediation over adjudication.

Xiaoping Cong, however, warns against reducing Ma’s Way to the umbrella term

“mediation.” Doing so may overlook the nuances of a unique dispute settlement mechanism that materialized from a “blending of village traditions of mediation with Maoist party practices.”146

Indeed, Cong and other scholars construct Ma’s Way as a technique that extends beyond mediation and spills over into the sphere of adjudication, given that it often invoked open courts and imposed decisions on disputants. Yet rather than using the term “adjudication,” which necessarily implies a rigid level of legal formalism largely absent from Ma’s Way, it is perhaps more useful to note how Ma’s Way bears undeniable similarities to the semiformal “third realm” of civil justice discussed by Philip Huang—a liminal space in which the formal and informal bled into and informed one another. Reading Ma’s Way through the framework of semiformal justice appreciates some of its formal components but reaffirms its mediatory spirit, in which legal technicalities yield to lived experiences.

145 Xiaoping Cong, “‘Ma Xiwu’s Way of Judging: Villages, the Masses and Legal Construction in Revolutionary China in the 1940s,” Te China Journal 72 (July 2014): 30. 146 Philip C.C. Huang, “Divorce Law Practices and the Origins, Myths, and Realities of Judicial ‘Mediation’ in China.” Modern China 31, no. 2 (April 2005):182. 52

Chou v. Ding is one civil case that exhibits Ma’s Way in practice. Chou Huairong and

Ding Wanfu were two residents in Heshui County who, beginning in the mid-1930s, had gradually begun to extend the boundaries of their fields toward each other’s property. Despite an initial ruling issued by the Nationalist county court, the case was appealed at the Nationalist district appellate jurisdiction, producing a decision that directly opposed the low er court’s initial ruling. In fact, the article reveals, “neither the county court nor the district appellate jurisdiction visited the fields but simply declared the winner based on the size of the litigants’ bribes.”147

When the CCP took over Heshui County, however, Ma sent Judge Shi Jingshan to rectify the situation. Judge Shi “investigated the history of the case by taking to villagers and examining the plots in person” in order to appraise the facts of the case. After a period of careful deliberation,

Judge Shi held an open court in a community venue and convinced them to arrive at a peaceful compromise. In describing Ma’s disposition throughout this case, the article on Ma’s Way constructs an explicit dichotomy, pitting the negligent Nationalist government against the conscientious and paternal officials of the CCP—a narrative which saturated public consciousness with glorified images of Maoist justice.

B. Social Organization

People’s Mediation emerged out of a unique organizational and structural context that ordered social life in the Maoist era. As Roger Richman writes, during the long Communist

Revolution, 1927-49, mediation practice evolved as “one element of a strategy to organize

[communities] into closely knit social and political units.”148 In its earlier years, the CCP set up a host of both urban and rural grassroots organizations that aimed, under the halo of popular justice and participatory democracy, to mobilize mass participation. In urban areas, the lowest

147 Cong, “‘Ma Xiwu’s Way of Judging,’” 35. 148 Roger Richman, “Civil Dispute Processing in China During Reform,” Journal on Dispute Resolution 7, no. 1 (1991): 86. 53 layer of city government was the street office, which manages around 10,000 to 20,000 people.

Te street offices are quite small, often containing just about half a dozen low-ranking officials, but their responsibilities are manifold: these offices are tasked with not only overseeing a wide spectrum of neighborhood affairs, but also serving as a critical “link between the local residents and the upper layers of the urban bureaucracy.”149 Below the street office are residents committees and residents groups—also known as mass organizations, meaning that they are by nature nongovernmental and that their leaders serve the masses without compensation. In terms of numbers, 20 to 40 households (about 100-200 individuals) form a residents group; 10 to 15 residents groups form a residents committee; and three to four residents committees fall under the jurisdiction of one street office.

Te grassroots organizations assumed a different shape in rural areas, given the idiosyncrasies of rural life after Mao’s land reform. As Victor Li notes, rural life was unique in that

“there is no distinction between one’s place of work and place of residence”—residential, agricultural, commercial, and cultural functions were all performed within a single collective unit.150 In this vein, rural households were grouped into production teams of about 30 to 40 families, production teams were grouped into a production brigade, and brigades were grouped into a large commune. Tis particular structure made the community as a collective, rather than the individual household, the basic economic unit. Like its urban counterpart, the rural communes epitomized the narrative of popular justice because it provided the peasantry a space in which to express their voices in community affairs and turn the confines of village life into a more meaningful community project. More importantly, these structures (including the urban residents committees) were crucial to the development of People’s Mediation because when it was

finally institutionalized in 1954, it was established according to this organizational blueprint.

149 Victor H. Li, Law Without Lawyers: A Comparative View of Law in China and the United States, Boulder: Westview Press Inc., 1978, 57. 150 Ibid., 56. 54

C. Establishment of People’s Mediation Committees

One of the first items on the CCP’s agenda was to reject Nationalist legal theory, purge its laws, and develop a new socialist paradigm of legality that would serve the needs of a socialist country. In addition to supporting “enemy” values, Nationalist legal practices were guilty of

“handling a case in isolation from [society]” (guli ban’an) and “handling a case by sitting in a courtroom” (zuotang ban’an).151 Te CCP thus faced the predicament of having to assemble a revolutionary legal system from scratch, one that is loyal to Party ideology yet legitimate in its own right. In the end, “the Communists retained a number of the legal specialists who had worked for the Nationalists, primarily because the Communists did not have within their own ranks people with the skill and knowledge to run a complex legal system.”152 Tis decision, they thought, would also allow them to reform the Nationalists’ political thinking and recruit their expertise to build a new China.

In practice, the CCP retained about half the former Nationalist judiciary, sparking a new dichotomy—might we even say rivalry—between the Western-educated legal specialists and what

Victor Li calls the “new cadres.” Te legal specialists may have acquired a “bourgeois” worldview from their studies, but their knowledge and skills were invaluable in the Party’s early efforts to transplant Soviet legal models. In fact, during the first first years of the CCP, it was the specialists who maintained a dominant position over the new cadres because “their efforts helped establish law codification commissions, judicial and police structures, and rules of operation”; their work culminated in the first Chinese Constitution, enacted in 1954, which established a tripartite governmental design comprising the Supreme People’s Court (SPC), the Supreme People’s

Procuracy (SPP), and the State Council.

151 Huang, “Divorce Law Practices,” 157. 152 Li, Law Without Lawyers, 22. 55

On the other hand, while the new cadres lacked legal training, they were able to contribute a fresh perspective on the law. “Not having been brainwashed, if you will, by legal training,” Li writes, “they did not automatically assume that China needed a modern legal system replete with codes and specialists.”153 Te new cadres instead asserted that law should not be something packed with impenetrable formalities and technicalities, but something accessible that adheres to the rhythm of the masses. Tey cadres also expressed a strong Maoist suspicion of the law, believing that behavior does not have to ordered through detailed codes—the storied Ma

Xiwu model was a sufficient standard of legality, one that is capable of encourage individuals to internalize the Party’s desired behavioral and ideological patterns in the proper way.

Te fissure between the new cadres and specialists spilled over into the 1950s, after the

People’s Republic of China was officially established. Within just three years of its establishment, the government set its eyes on launching a nationwide campaign to “reform law” (sifa gaige).

Criticized for “[lacking] ideological and political purity and proper class point of view,”

Nationalist courts and specialists were removed from their posts, sentenced to condemnation.154

Cadres and activists bearing the proper political worldview and class origins were installed in their place—explaining why, in 1954, Ma Xiwu himself was selected to become the vice president of the Supreme People’s Court (SPC). At the same time that this movement was unfolding, the CCP slowly began to institutionalize mediation. Mediators were selected among the activists, assigned to cases categorized by subject matter—for instance, housing disputes were delegated to activist street residents, commercial disputes tp activist merchants. Judicial cadres lectured these activists on not only the policies and principles to be applied during the mediation process, but also the need to avoid contentiousness and litigation; only after this preparation could “mediation small groups,” led by the selected activists, finally mediate disputes.

153 Ibid., 24. 154 Lubman, Bird in a Cage: Legal Reform in China After Mao, 48. 56

Tough they were merely undergoing an initial trial phase, these mediation small groups were celebrated widely for elevating the political consciousness of masses and for minimizing contentiousness. Riding on this momentum, the CCP promulgated in 1954 the Provisional

General Principles of Organization of the People’s Mediation Committee (Renmin Tiaojie

Weiyuanhui Zanxing Zuzhi Tongze, hereafter “1954 Rules”), which marked the official establishment of People’s Mediation. Comprising elevent articles, the 1954 Rules stipulated that

People’s Mediation Committees were mass organizations—elected by the people for the people— with legal authority to mediate civil disputes.155 More specifically, it stated that mediation committees consisting of three to eleven members are to be established in each urban area or in each rural township; the members must be “politically upright,” maintain “close links with the masses, and enthusiastically fulfill their duty to resolve civil disputes in a timely manner.156

Elements of Ma’s Way were visibly woven into the fabric of the 1954 Rules, implicitly commanding mediation committee members to emulate Ma’s thoroughness, proactivity, and ability to strengthen the people’s observance of Party policies.

Te popularity of People’s Mediation, in may ways, hinged on grand narratives that turned model mediators into the main protagonists of China’s revolutionary quest. Consider, for instance, an article published in the Guangming Daily (guanming ribao) about Mediator Aunty

Wu, who was extolled for her work ethic and unwavering devotion to the masses. Te article discusses Mediator Aunty Wu’s approach to an interfamilial case involving Li Ping, a woman who was caught beating the child of her husband’s (Li Guangyi) former wife. After speaking to her peers and discovering that this was not a one-time event, Aunty Wu immediately rushed to amend the situation. Li Ping did not reform her actions after this initial round of persuasion, but

Aunty Wu held onto the belief that “if mediation isn’t successful once, then it is carried out a

155 “1954 the Provisional General Principles of Organization of the People’s Mediation Committee” (Renmin Tiaojie Weiyuanhui Zanxing Zuzhi Tongze) 156 Lubman, Bird in a Cage: Legal Reform in China After Mao, 48. 57 second and a third time, with the aim of continuing right up until the question is decided.”157

With the help of the masses, Aunty Wu visited the household again and again to educate and criticize Li Ping’s behavior; in the end, Li Ping repented, rectified her errors, and resolved to treat the child well. “Everyone says Aunty Wu is certainly good at handling these matters,” the article concludes, “but she says ‘If I didn't depend on everyone, nothing could be solved.’”158

People’s Mediation enjoyed a successful tenure until May of 1966, when Mao launched a decade-long period of economic and political upheaval formally known as the Cultural

Revolution. Te revolution, Mao believed, was necessary in order to purge Chinese society of ideological impurities and to reinvigorate the revolutionary spirit that had inspired the CCP’s creation. In addition to shutting down schools and endorsing violent campaigns led by the youth paramilitary group known as the Red Guards, the CCP terminated all legal operations. Legal personnel were uprooted, sentenced to “re-education” in labor camps. Even People’s Mediation was lumped together with the traditions and institutions that they believed should be dismantled.

Mao’s legal nihilism ultimately led to a chaotic “overthrow of positive law and everyone associated with it, including lawyers, policemen, procurators, and judges”—even the mediators who had epitomized Maoist justice just a few years earlier.

Stage II: Encounters with Legal Reform

A. Post-Mao Reforms

Mao’s death marked the genesis of China’s transition into a market economy and onto the global stage. Yet, the Cultural Revolution left China in a state of social and economic disarray;

Maoist legal nihilism left society in a state of lawlessness. Against this backdrop, Deng Xiaoping, who became the country’s paramount leader in 1978, pledged to open a new chapter for China— one that would be driven and nourished by the “Four Modernizations” of science, agriculture,

157 Ibid., 40. 158 Ibid. 58 industry, and national defense. In conjunction with his plan for China’s modernization, however, he undertook the colossal task of spelling out a grand vision for post-Mao unity, political stability, and democracy. Himself a “victim in the heyday of lawlessness” during the Cultural Revolution,

Deng understood the urgent need for an institutionalized legal infrastructure with formal codes, not only to restore political order, but also to facilitate economic development and attract foreign investment.159 In its unapologetic support for legal and judicial reform, Walter Gellhorn writes,

“the new leadership sought vigorously not merely to recapture the past, but to push forward to a higher level of legality than had previously been attained.”160 Tat is not to say, however, that legality was seen as an end in and of itself. Rather, law was seen as an important means “of furthering the declared purpose of modernizing agriculture, industry, science and technology, and national defense.”161

Unlike Mao, Deng was a pragmatist. Rather than theory and ideology, Deng’s plans were informed by experiences and goals grounded in reality. As a result, “Deng’s pragmatic leadership style resulted in his subordinating considerations of ideological consistency to those of political feasibility.”162 Such is the reason that China’s legal reforms were initially focused on constructing a legal framework conducive to economic development and international trade. By the mid-1980s,

China introduced over 300 laws on economic regulation, six new codes covering a variety of legal procedures, and a Constitution detached from revolutionary ideology.163 Narratives of class struggle and revolution were written out of the law, replaced by themes pertaining to the law’s logical and rational legitimacy. By the end of the decade, however, official discourse surrounding the legal reforms slowly expanded to encompass a question that has long captured the

159 Carlos W. H. Lo, “Deng Xiaoping’s Ideas on Law: China on the Treshold of a Legal Order,” Asian Survey 32, no. 7 (July 1992): 649. 160 Walter Gellhorn, “China’s Quest for Legal Modernity,” Journal of Chinese Law 1, no. 1 (Spring 1987): 8. 161 Ibid., 8. 162 Lo, “Deng Xiaoping’s Ideas on the Law: China on the Treshold of a Legal Order,” 654. 163 Richman, “Civil Dispute Processing in China During Reform,” 85. 59 imaginations of legal scholars both in and out of China: can the country implement “rule of law” (fazhi) and oust the “rule of man” (renzhi) that had persisted for centuries?

Te reformers expressed a profound sense of ambivalence toward the rule of law. Te rule of law, which will be further explored and interrogated in the following chapter, is a “rhetorically powerful” yet conceptually fragile ideal that constitutes a major part of modern political morality.164 It requires everyone to be equally subject to the law—precisely the reason why it is seen as a cornerstone of liberal democracies. On one hand, it was clear that adapting to the demands of a growing market economy required laws that were predictable, reasonable, and uniformly applicable. Deng thus committed himself to four prescriptions for the law: “there must be laws for people to follow”; “the laws must be observed”; “law breakers must be dealt with accordingly”; and finally, “everyone is equal before the law.”165 Te leadership grappled with these four prescriptions slowly but steadily, with an overarching aim to “dispel its extralegal image” and raise levels of legal consciousness.166 Yet, on the other hand, the CCP recognized that fully embracing the rule of law would erode traditions and policies crucial to the CCP’s control and legitimacy. Ultimately, after numerous cycles of debate spanning the entire reform era, “rule of law” (fazhi) was enshrined in the State Constitution for the first time in a March 1999 amendment, which declared China a “socialist country under a rule of law.”

Alongside a new focus on formal laws, another item on Deng’s agenda was to resuscitate legal scholarship and the judiciary, both of which played critical roles in triggering the decline of

People’s Mediation during the 1990s; the state almost immediately directed its attention to rehabilitating the courts, creating new judicial systems, and reviving the legal profession and law schools, which had been abandoned during the Cultural Revolution. In 1978, 729 students enrolled in six law schools; by 1980, the number of enrolled students rose to 2,557, and by 1982,

164 Fallon Jr., Richard A., “‘Te Rule of Law’ as a Concept in Constitutional Discourse,” Columbia Law Review 97, no. 1 (January 1997): 1. 165 Lo, “Deng Xiaoping’s Ideas on the Law: China on the Treshold of a Legal Order,” 654. 166 Ibid., 656. 60 it reached 3,678.167 Like Deng, this new pool of law students had witnessed firsthand the disarray that followed the Cultural Revolution and was inspired by a revitalized faith in the potential of law. Tese law students thus “regarded themselves as the watershed in Chinese legal development”—responsible for reimagining the outlook for China’s legal history.168

According to Fu and Cullen, the law school graduates can be sorted into three cohorts.

One cohort of graduates joined a variety of legal institutions at the central or provincial levels, including the Ministry of Justice, the SPC, the Supreme People’s Procuratorate (SPP), and their provincial counterparts. Another cohort joined legal institutions located in large coastal cities like

Shanghai, Shenzhen, and Guangzhou, particularly in the latter half of the 1980s. Te last group of graduates pursued avenues into legal academia after graduate scholarship in China or abroad; this cohort catalyzed the process of indigenizing often idealized foreign legal practices and advocating for a more modernized civil justice apparatus. Considered en masse, “these groups of lawyers formed a liberal-minded iron triangle that maintained a common conception of legal reform.”169 Liberalized universities groomed a class of officials who studied law rather than Party doctrine, who championed the use of formal law rather than the semiformal Ma Xiwu model.

Tey “imported (and indigenized) the trappings of Western judicial proceedings to give Chinese judges gravitas” and, at the turn of the 21st century, “exchanged their military uniforms for black judicial robes” and “adopted the use of the gavel.”170

167 Fu Hualing and Richard Cullen, “From Mediatory to Adjudicatory Justice: Te Limits of Civil Justice Reform in China,” in Chinese Justice: Civil Dispute Revolution in China, edited by Margaret K.Y. Woo and Mary E. Gallagher (Cambridge: Cambridge University Press, 2011), 30. 168 Ibid., 31. 169 Ibid., 32. 170 Ethan Michelson, Global Institutions, Indigenous Meaning: Lessons from Chinese Law for the New Institutionalism 32-42 (2005) 61

B. People’s Mediation in Decline

Despite a wave of reforms that formalized and legitimized the law, this does not mean that the government had de-emphasized extrajudicial mediation; on the contrary, the preeminence of institutions like People’s Mediation persisted well into the 1980s and only began to decline in the following decade. In 1981, there were 5,575,000 mediators throughout the country and around

810,000 committees; by the end of the decade, the number of mediators had almost doubled.171

Between 1985 and 1992, People’s Mediation Committees handled over 5.26 million civil disputes

—almost five times the number of cases handled in the courts—and boasted an impressive success rate of 91.6%, according to one observer.172

Tis striking momentum eventually led the State Council to pass the 1989

“Organizational Rules for People’s Mediation Committees” (“1989 Rules”), which replaced the

1954 Rules and provided further specifications about the work of the mediation committees. Te

1989 Rules pronounced that each urban neighborhood committee or village resident committee can establish People’s Mediation committees consisting of three to nine members (primarily elderly women over the age of 50), each of whom must “mediate according to laws, regulations, policies, and social morals.”173 A crucial distinction from Maoist mediation, however, was the new expectation that mediators would “conform to legal standards” by, for instance, assessing contractual provisions in land or property disputes.174 In this vein, the 1989 Rules served the dual purpose of reaffirming state support for extrajudicial mediation while simultaneously formalizing the mediation process; this duality was paradoxical yet highly emblematic of the state’s seemingly endless struggle to navigate the tensions between formal and informal, tradition and revolution.

Nevertheless, the 1989 Rules were not enough to reverse a trend that had slowly begun to take root during the late 1980s: People’s Mediation was in decline, losing thousands of civil

171 Lubman, Bird in a Cage: Legal Reform in China After Mao, 219. 172 Ibid. 173 Yuning Wu, “People’s Mediation Enters the 21st Century,” 27. 174 Glassman, “Te Function of Mediation in China,” 470. 62 disputes to the courts. In reality, the countless legal reforms that steered China onto a path of legal formalization, coupled with major transformations in China’s socioeconomic and urban landscape, presented unprecedented challenges for People’s Mediation. In 1983, the total number of economic, civil, and administrative cases accepted by the courts of first instance was just over

800,000; just 15 years later, the number rose to 4,923,468.175 Between 1985 and 2002, the number of disputes handled by community cadre mediation decreased by more than half, while the number of civil lawsuits accepted by the courts increased two-fold. By 2005, “the number of civil lawsuits reached eight times the number in 1980.”176

In many ways, this decline reflects the conditions of a society perched on the edge of modernity, confronted with questions of how to navigate a new set of values built by a new economic and legal order. As Philip Huang writes, the large-scale reconfigurations of economic and social structures carried out during the reform era inevitably catalyzed “the weakening of village governments and partial dissolution of the old social bonds of the community.”177 Emile

Durkheim alluded to this kind of social restructuring in his own reflections on the conditions of modernity. Modern societies, he argues, are characterized by what he calls organic solidarity— interdependence based on differentiation. As opposed to “primitive” societies, in which the individual conscience is hardly distinguishable from the conscience collective, the division of labor renders modern societies “more capable of collective movement, at the same time that each of its elements has more freedom of movement”; using the body as a frame of reference, he writes that “each organ, in effect, has its special physiognomy, its autonomy. And, moreover, the unity of the organism is as great as the individuation of the parts is more marked.”178

Yet, while Durkheim’s evolutionary continuum has been sharply criticized as a simplistic and unidirectional view of social change, we might say that a shift to organic solidarity was

175 1999 CHINA STAT. Y.B., 757. 176 Philip Huang, Civil Justice in China, Past and Present 177 Ibid. 178 Emile Durkheim, Te Division of Labor in Society (New York: Te Free Press, 1933), 131. 63 indeed embedded in China’s transition into a market economy. If the pre-reform era was about ideological uniformity, whether it manifested as Confucian li or as Maoist revolutionary doctrine, the reform era was about pluralization. Globalization, urbanization, and the importation of

Western thought not only altered China’s socioeconomic landscape, but also inserted new attitudes and values into the public conscience, transforming the ways in which the average individual viewed his or her position vis-à-vis the rest of society. Indeed, China has transformed from a society of tightly-knit community members to a society of “strangers.” In the context of legal culture, this meant that the traditional, collectivist bent toward mediation inevitably collapsed under the weight of a new interest in turning to litigation. Despite the critiques of

Durkheim’s evolutionary approach to law and society, his reading of modern social life nonetheless resonates with the character of China’s reform era.

As the specter of individuality steered disputants to the courts, mediation also lost accountability. Under Mao’s leadership, the legalization of People’s Mediation with the 1954

Rules empowered mediators to become the bulwark of Maoist justice. People’s Mediation

flourished under Mao because Party doctrine and “Maos’ words were often referred to as having superior value in solving conflicts.”179 Yet in the post-Mao era, law replaced politicized Maoist rhetoric as the guiding principle for settling disputes. Amidst a burgeoning public consciousness surrounding the rule of law, People’s Mediation was increasingly accused of negating or undercutting the immense strides that China had made in achieving it. Although mediators adapted to a growing corpus of codified laws, learning to apply and cite them in their own mediation work, they lacked the substantive authority to enforce them, rendering many of their efforts futile—perhaps even meaningless. With this knowledge, more and more disputants brought their cases to judges who would be able to issue a legally-binding decision, grant settlement compensation or, in the very least, produce a settlement that possessed more authority.

179 Fu Hualing, “Understanding People's Mediation in Post-Mao China,” Columbia Journal of Asian Law 5, no. 2 (1993): 229. 64

Whereas the 1980s were characterized by a continued emphasis on mediation, the 1990s witnessed a striking shift in legal culture, placing less emphasis on mediation and more on the concept of party autonomy. In fact, the 1991 Civil Procedure Law stipulated that mediation must be voluntary, and that the courts were required to issue official decisions in the absence of an agreement between the parties. Regardless of whether the disputants had attempted judicial or extrajudicial mediation, the courts were trusted to be able to issue adjudicated decisions in a fair and timely manner. At the same time, Margaret Woo writes, “in many ways, Chinese legal reforms [began to take on] the patina of the adversary system and the independent civil litigation process”—granting the litigants both the responsibility and agency to gather evidence and ultimately advocate for him or herself.180

Lastly, widespread debates surrounding rule of law provoked major critiques about the implications of People’s Mediation and the ideal of “popular justice” for the public. Te most provocative among such critiques was that the narrative of popular justice, which rationalized the storied “Ma’s Way” and the creation of People’s Mediation, was illusory—an ideal that was more romantic than real, more alienating than reassuring. Troughout the Maoist era, popular justice was hailed as a hallmark of participatory democracy and liberation from the autocratic conditions of the past; Hualing Fu thus notes, “given the ideology of the withering away of law and the socialization of state duties, each individual was expected to become an organic part of state duties, and to serve as the eye of the revolution”181 But this was merely an illusion: although

People’s Mediation claimed to be justice for the people, it politicized conflict in a way that minimized the lived experiences of the very people it sought to empower. People’s Mediation may have offered a harm-free path to conflict resolution, but for a long time, it was more often a

180 Margaret Y. Woo, “Bounded Legality: China’s Developmental State and Civil Dispute Resolution,” Maryland Journal of International Law 27 (2013): 240. 181 Fu, “Understanding People's Mediation in Post-Mao China,” 219. 65 vehicle to directly rectify private thoughts and propagandize Party policies. As Elmer Johnson eloquently puts it,

Grassroots popular justice could not be achieved because the radical leaders “failed to make a break with the structural and normative logic of the Leninist form of state socialism; they used hierarchical means to bring equality; authoritarian means to bring democracy; the invocation of obedience to encourage initiative.182

Stage III: People’s Mediation and the “Harmonious Society”

A. China’s “Harmonious Society” and “Turn Against the Law”

Te defining trait of the 1980s and 1990s in China was indeed its reform-minded spirit; the two decades were fraught with efforts to expand China’s horizons and construct an institutionalized legal system, driven by optimism about the potential for unprecedented growth.

Trough the post-Mao reform era, China averaged 9.4 percent annual growth in GDP and made unfathomable strides on all fronts—advancements which perhaps may not have been possible without the legal and judicial reforms enacted at the end of the 20th century.183 Yet, in a significant and even symbolic act of retreat, China has since engaged in a “politicized rejection of many legal reforms advanced in the 1980s and 1990s.”184 Civil litigation has been relegated to the periphery to make more room for mediation; laws and promulgations that stress the work of mediation have been announced as early as 2002. Since 2006, Comrade Ma Xiwu’s way, which embodied the heart of Maoist popular justice, has resurfaced in official publications like the

People’s Court Daily; a relic of Ma’s court house in Yan’an was even reinstalled and turned into a site of commemoration.185

182 Elmer Johnson, Mediation in the People’s Republic of china: Participation and Social Control, in Comparative Criminology 64 (Barak-Glantz & Elmer Johnson eds., 1983) 183 See Bijian Zheng, “China’s ‘Peaceful Rise’ to Great Power Status,” Foreign Affairs 84, no. 5 (September/ October 2005): 18. 184 Minzner, “China’s Turn Against the Law,” 937. 185 Zang Dongsheng, “Rise of Political Populism and the Trouble with the Legal Profession in China,” 84. 66

Beginning with Hu Jintao’s leadership, the Chinese leadership has construed “a more skeptical approach to law,” slowing legal reforms and inviting more Party control over the legal system at large—what Carl Minzner calls China’s “turn against the law” and what Benjamin

Liebman calls a “return to populist legality.”186 As we will see later on, President Xi Jinping complicates this observation by striving (at least in name) to emulate Deng’s emphasis on a

“socialist rule of law,” but even today, an enduring “official reluctance to commit to greater use of law reflects ambiguity about whether law is the best tool for managing a society undergoing rapid and unprecedented social transformation.”187

Social stability has indeed been a key word for China’s leadership throughout the post- reform era. When Hu Jintao emerged as the CCP’s General Secretary in 2002, he inherited an increasingly pluralistic yet disparate society fraught with mounting economic, social, and political concerns. At the same time, a growing incidence of corruption among government authorities and cadres threatened to tarnish the CCP’s image. At the dawn of the Hu-Wen administration, the state-society relationship in China was at a crossroads: by 2005, the number of public protests or “mass incidents” (quntixing shijian) had reached 87,000, an astounding increase from the

32,000 incidents that erupted in 1999. Hu, against this backdrop, was compelled to depart from his predecessors’ economy-centered approach to reform and imagine a new, more sustainable model for China’s development. Tis new model was what Hu Jintao called a “harmonious society” (hexie shehui)—a motif that has thoroughly embedded itself in the contemporary legal system. In an era defined by growing uncertainty and tension, China’s “return to populist legality” has been just one piece of this new political and ideological framework aimed at bridging together the Party and the people, the past and the present.

186 Benjamin Liebman, “Legal Reform: China’s Law-Stability Paradox,” 98-99. 187 Ibid. 103-104. 67

At the Sixth Plenary Session of the 16th Central Committee in October of 2006, the

CCP adopted a resolution to “build a harmonious socialist society” by 2020.188 Tis landmark resolution was the product of a two-year effort by the Hu administration to address the tensions and concerns discussed above. It sketches a list of priorities that the Party seeks to undertake until

2020—for instance, to remedy China’s growing wealth inequality and labor dislocation, to provide sufficient access to social and legal services in rural areas, to expand education across the nation, and to redress imbalances in regional development. In doing so, it also marked a discursive turn in the Party’s approach to society: rather than a political agenda dominated by either “class struggle” or “four modernizations,” Hu was committed to “putting people first” (yiren weiben) and constructing a “harmonious society.” Yet, this discursive commitment to “democracy, rule by law, fairness, equity, good faith, friendship, vigor, stability, orderliness and harmonious existence between human and the nature” is heavy with contradictions.189

Tese contradictions are neatly packaged into what Liebman calls “China’s law-stability paradox,” a framework which recognizes the leadership’s complicated internal posture toward rule of law and rule-based governance. Over the past three decades, questions of modernization and stability have compelled China to establish an array of normative legal tools for its citizens. Such reforms unfolded under the regime’s recognition that only the law can trump the chaos of Maoist populism, but the Party has simultaneously betrayed a persistent ambivalence—even distrust— toward legal institutions. If the law has been used to instill order and legitimize Party leadership, it nonetheless comes second to an even “higher imperative, the regime’s durability”: the more that citizens turn to formal legal procedures, the more the Party is inclined to “snuff out the democratic ferment contained within its own creation.”190 As Liebman notes, “law has become an

188 “Resolution on the Major Issues Regarding Building a Harmonious Socialist Society” 189 “Notice of the Supreme People’s Court on Issuing Some Opinions of the Supreme People’s Court About Providing Judicial Protection for the Construction of Socialist Harmonious Society” (2007) 190 Leïla Choukroune et Antoine Garapon, “Te norms of Chinese harmony: Disciplinary rules as social stabiliser,” China Perspectives 3 (2007): 37-38. 68 important governance tool in China, but adherence to legal procedures is not a source of party- state legitimacy.”191

Te concept of “socialist harmonious society” is laden with contradictions and ambiguities, but Hu’s vision becomes clear when examined in the context of China’s political landscape at the dawn of the 2000s. Te concept was introduced in the midst of intensifying social disparities and conflicts induced by China’s rapid economic development. For one, waves of rural-urban migration inevitably triggered more and more disputes as many were forced to navigate an unfamiliar and hostile cityscape. Yet social conflicts grew not just in number, but also in complexity. China’s unparalleled growth fed into and was fed by a sharpening of social inequality, as well massive transformations in the fabric of Chinese society that produced clear winners and losers. Te “losers” are those individuals who have largely been erased from narratives of China’s progress—the “employees of state-owned enterprises (SOEs) who lose their entitlements as the result of privatization and restructuring, farmers dispossessed by government land requisition for urbanization and infrastructure development, urban residents forced to relocate with little compensation for government and developers’ interests,” ethnic minorities, and other groups who now occupy the margins of society.192 Tese are the individuals who struggle to survive in the penumbra of an increasingly powerful yet polarizing nation.

Te petition (xinfang) system, also known as “letters and visits,” is one way to channel their grievances into the Party’s attention. Yet to the Party, the petition system is an important metric with which it has measured discontent and disarray among the public. Itself a legacy of

Mao’s regime, this system can be defined broadly as a mechanism that allows individuals to “go past basic-level institutions to reach higher-level bodies, express problems and request their

191 Liebman, “Legal Reform: China’s Law-Stability Paradox,” 97. 192 Haitian Lu, “State Channeling of Social Grievances: Teory and Evidence in China,” Hong Kong Law Journal 41, no. 2 (2011): 232. 69 resolution.”193 In offering a channel of communication with Party elites, it echoes the “mass line” approach by serving as a platform through which the CCP can personally listen and respond to the people’s voices. Petitions span across a wide range of issues—some are individual appeals for legal redress or smaller grievances pertaining to public services, while others are organized challenges to political decisions. In this sense, the system exists uneasily alongside formal legal institutions at the intersection of law and politics, occupying a critical space in the Party’s understanding and evaluation of Chinese society.

Te significance of the petition system, however, lies in its numbers: while the number of petitions submitted to complaint agencies at the county level was 4.8 million in 1995, this number rose to 10.2 million 2000 and 13.7 million in 2004. Tis trend reflects a growing sense of disillusionment with the failure of existing legal or administrative channels to provide adequate responses to their grievances. Te unfathomably rapid turn toward litigation in the 1990s led to a new conundrum: the more lawsuits that courts decided to accept, the more they were overwhelmed and constrained, unable to deliver justice fully in many cases. “Collective petitions” or “open letters” that have recently proliferated the internet further complicate the story. Tese open letters—for instance, the famous Charter 08—have tended to evoke weightier issues like civil rights and democracy, identifying major gaps between the Party’s narratives of a “harmonious society” and reality. Petitions, whether in paper or via the internet, are emblematic of growing rifts that can only jeopardize social stability if left untreated.

B. Contemporary People’s Mediation in Practice

Even before Hu’s vision of a “harmonious society” was formally endorsed, the SPC and

Ministry of Justice introduced several regulations aimed at re-centering legal discourse around the primacy of mediation. Te Party’s vision of People’s Mediation promised the justice that had been

193 See Carl Minzner, “Xinfang: An Alternative to Formal Chinese Legal Institutions,” Stanford Journal of International Law 42 (2006): 104. 70 lost in formalities, the sense of community that had been trumped by rights talk, and the integrity of Chinese traditions that had been washed away by the surge of Western legal discourse.

In September of 2002, the SPC introduced “the Several Provisions of the Supreme Court on Trialing Civil Cases Involving People’s Mediation Agreement,” which mandated that People’s

Mediation agreements with the parties’ signatures have the legal force of a binding contract.194

Tat same day, the Ministry of Justice presented “Some Provisions Concerning the Work of

People’s Mediation,” which elaborated on the terms outlined in the 1989 Rules and “further defined the set-up, composition and operational mechanisms of PMCs.”195 Consisting of 45 articles, the provisions also constituted a major effort to improve the appeal of People’s Mediation by formalizing and standardizing its procedures. For instance, it prescribed a one-month time limit for the mediation of a case (Article 33), set up funds to compensate PMCs for their work

(Article 42), and reiterated that mediation is an act of “free will,” whereby mediators must notify disputants of their rights to withdraw from mediation at any point (Article 6 and Article 30).196

Te provisions also state that mediation should not take place “in public when the personal privacy or business secrets of the parties are involved or if the party objects to this” (Article 29)— meaning, specifically, that People’s Mediation is no longer to serve as a ritualistic spectacle that subjects disputants to public scrutiny.

Aside from passing legislation, however, the government also channeled significant energy into new models and strategies for making People’s Mediation “more specialized, bureaucratic, vocational, and ‘democratic.’”197 One such strategy was to upgrade the mediators’ professionalism through certification systems. Kunshan city in Jiangsu, for instance, has been experimenting with a system of hierarchical certification for people’s mediators, whereby a people’s mediator can be

194 Lu, “State Channeling of Social Grievances: Teory and Evidence in China,” 237. 195 Aaron Halegua, “Reforming the People's Mediation System In Urban China,” Hong Kong Law Journal 35 (2005): 726-727. 196 Ministry of Justice, “Some Provisions Concerning the Work of People’s Mediation,” September 26, 2002, http://www.moj.gov.cn/government_public/content/2002-09/28/fggz_6212.html. 197 Palmer, “Te Revival of Mediation in the People’s Republic of China,” 226. 71 assigned one of four qualifications: mediator, assistant master mediator, master mediator, or senior master mediator. Such titles attach an additional dimension of certainty to their qualifications, so that they are not merely “committee members”, but experienced mediators who can be trusted to handle community disputes as professionally as possible. Other places like the

Bingzhou prefecture in Hunan have invented the position of “chief mediator”—skilled mediators who are thought to be able to “better coordinate with the relevant government sectors.”198 When the prefecture first established this position, it invited the chiefs of county and district-level justice bureaus to serve due to their expertise, but as of late, chief mediators have been emerging ubiquitously and are no longer confined to members of formal legal institutions.

Another avenue for development was to expand the PMCs’ jurisdiction to include disputes of greater complexity and consequence. People’s Mediation has typically dealt only with relatively small-scale civil disputes—boundary disputes between neighbors, neighborhood squabbles between families, family disputes between in-laws, or marriage disputes between a couple filing for divorce. In August of 2007, however, the SPC and MoJ issued a joint circular to lower courts and justice bureaus, stipulating that the scope of mediation should “be expanded to broader social issues such as land, environment, labor, and medical disputes.”199 As Zhang notes, the PMCs now mediate much more serious cases including but not limited to land disputes, damage disputes, medical malpractice disputes, urban construction disputes, labor-related complaints, traffic disputes, property demolition and relocation disputes, and property management disputes. Te traditional parameters of People’s Mediation have been even further blurred by pieces of legislation like the Marriage Law of 2001, which “provides that victims of domestic violence, maltreatment or abandonment have the right to request that a residents’ or villagers’ committee intervene and mediate.”200 In allowing PMCs to step into the murky waters

198 Ibid., 253. 199 Zang Dongsheng, “Rise of Political Populism and the Trouble with the Legal Profession in China,” 83. 200 Marriage Law of 2001 (Article 43 & 44) 72 of certain criminal matters like domestic violence, the Party is implicitly vesting the institution with a greater sense of authority and autonomy.

Perhaps the most notable new strategy to advance People’s Mediation, however, is the creation of mediation workrooms or mediation offices—innovative spaces designed to imbue

People’s Mediation with a stronger aura of professionalism and authority. In 2003, the Jiangsu street office in Shanghai’s Changning District signed a contract with Li Qin, a nationally- renowned mediator and deputy director of her district PMC, offering her 120,000 RMB to hire four other full-time mediators and perform the following functions: provide legal consultations, assisting residents who want to file a petition (xinfang), training community mediators at least twice per year, and mediating disputes.201 Within a year, the workroom had successfully resolved

157 cases and written 43 mediation agreements—an outcome that was enthusiastically received by officials at all levels. Its success compelled the city to increase funding for the workroom and later install one within each of its street offices. Philip Huang notes another renowned mediation workroom—the office of Yang Boshou, a former civil servant who has worked as a people’s mediator since his retirement in 1994. Yang was awarded ‘leading people’s mediator’ by Shanghai in 2001, and ‘national model mediation committee member’ in 2002. According to Huang, “a mediator like Yang is to some degree reminiscent of the ‘traditional’ good man of the township’ and could perhaps be dubbed the ‘good man of the district,’” making him the perfect candidate to train and cultivate fellow mediators.202

All of these new strategies catalyzed a larger conversation at the Party level about the institution’s legal basis, a conversation that ultimately culminated in the 2010 People’s Mediation

Law. Te 2010 Law, which went into effect in January of 2011, represented a watershed moment by reaffirming “official recognition of the need to enhance the legitimacy of people’s mediation as

201 Halegua, “Reforming the People's Mediation System In Urban China,” 736-737. 202 Huang, Civil Justice in China, Past and Present. 73 a long-established yet still vital method of dispute resolution in contemporary China.”203 Echoing many of the principles that were woven into the 2002 Provisions, the 2010 Law states that

People’s Mediation must be carried out “on the basis of voluntariness” and that it must not be “in violation of laws, regulations and State’s policies.”204 More importantly, the very first article reiterates its instrumental role in “resolving the disputes among the people in a timely manner and safeguarding the harmony and stability of the society” (Article 1), explicitly invoking rhetoric reminiscent of Hu’s harmonious society.

Te 2010 Law consists of guidelines covering the structure of PMCs, mediator roles and qualifications, mediation procedures, and mediation agreements. It states that all urban neighborhood committees, village resident committees, and large workplaces—for instance, government institutions, academic institutions, enterprises, and mines—are entitled to establish

PMCs that operate “under the guidance of the People’s Courts and local governments.”205 Tese committees should comprise three to nine individual (and one committee chairman) tasked with assisting disputants in addressing their grievances and reaching an appropriate settlement. Te

2010 Law stipulates that mediators are to be elected “through villagers meeting or villagers’ representatives meeting, and residents' meeting” or, in the case of enterprises or larger institutions, elected “through staff congress or staff representative congress or trade union organization” (Article 9).206 Tere are also a number of mediators, however, who are government officials in local judicial bureaus or volunteers from other mass organizations (i.e. unions or women’s associations).207 Ensuring that the committees are representative of the larger

203 Yuning Wu, “People’s Mediation Enters the 21st Century,” 29. 204 “Zhonghua renmin gongheguo renmin tiaojie fa” (People’s Mediation Law). August 30, 2010. http:// www.moj.gov.cn/Department/content/2010-08/30/592_201250.html. 205 Xiaohua Di and Yuning Wu, “Te Developing Trend of the People’s Mediation in China,” Sociological Focus 42, no. 3 (August 2009): 231. 206 “Zhonghua renmin gongheguo renmin tiaojie fa” (People’s Mediation Law). August 30, 2010. http:// www.moj.gov.cn/Department/content/2010-08/30/592_201250.html. 207 Di and Wu, “Te Developing Trend of the People’s Mediation in China,” 231. 74 community, the 2010 Law writes that all committees must have female members and, in the more ethnically diverse areas, “members of the minority ethnic groups” (Article 8).

Together, Hu’s “harmonious society” project and the 2010 Law produced a remarkable rise in the number of disputes settled through People’s Mediation. According to one estimate from 2010, PMCs handled over 7.67 million disputes in 2009, less than one percent of which escalated to litigation.208 By 2018, the number of disputes mediated by PMCs increased to 9.53 million, with a success rate of 97.9 percent.209 Today, China has over 750,000 PMCs, over

40,000 “sectoral and professional mediation organizations” and 3.5 million people’s mediators.210

Tis steady revival has played an “irreplaceable function in establishing a harmonious society” by resolving contradictions and thus preventing threats to instability.211 Specifically, the number of petitions (xinfang) have declined every year since its peak in the late 1990s to early 2000s: while various letters and visits offices throughout the nation received over 12 million petitions in 2005, the number declined to just over 10 million in 2006—a 15.5 percent drop from 2005 and a 50 percent drop from 1999.212

But stability is reflected not only in the numbers—it is also manifested in the symbiotic relationship between mediation and the courts. Despite a host of reforms aimed at empowering the judiciary, courts were unequipped to accommodate the millions of civil cases that bypassed mediation and were directly filed as lawsuits during the reform era. Te state’s emphasis on mediation was thus a major solution to this conundrum, with the dual purpose of providing a second channel for dispute resolution while simultaneously streamlining much of the courts’

208 Yuning Wu, “People’s Mediation Enters the 21st Century,” 34. 209 Xinhua, “People's mediation organizations resolve disputes with high success rate,” 2019/5/9, http:// www.xinhuanet.com/english/2019-05/09/c_138046453.htm. 210 Ibid. 211 Wang Jue, “A Brief Argument on the Foundation for the Enforcement of the Legislation of the People’s Mediation” (jianlun renmin tiaojie lifa de shijian jichu), Justice of China 4: 51. 212 Randall Pereenboom and Xin He, “Dispute Resolution in China: Patterns, Causes, and Prognosis,” East Asia Law Review 4, no. 1 (2009): 39. 75 caseloads. In exchange for guiding and training mediators, the courts also benefit from the mediation committees and their ability to reduce the number of cases that reach them.

It is easy, at a surface level, to assume that the resurrection of People’s Mediation can be attributed solely to Party efforts. Accounts of post-reform People’s Mediation have indeed painted the process as a top-down response by the Party, imposed on the people as part of a larger political project; recent scholarship has thus zoomed in on its legal underpinnings, codification, specialization, and other technical changes throughout the past decade. While such accounts certainly resonate with the government’s campaigns for People’s Mediation, they inherently paint over the equally important bottom-up or grassroots contributions to its revival. Tian Qian’s work on dispute resolution in Southeastern Chongqing addresses this gap, providing an account that characterizes rural communities and residents as another set of architects behind the revival of

People’s Mediation. According to Qian, sweeping economic reforms like the household contract responsibility system, which broke the confines of collective agricultural labor and reallocated land to individual rural households, have triggered more and more “interest-led disputes.”213

Qian found, however, that the residents in Malu Village were much more inclined to utilize the People’s Mediation system—specifically, a unique “mediation courtyard” model—than to seek out other legal avenues. While other scholars might attribute this phenomenon to government campaigning, Qian characterizes it as a “rational choice” and a practice of “interest gaming,” in which residents demand civil mediation on their own volition based on their positionality. Consider, for instance, a land dispute that erupted in 2009 between Huang

Shoucheng and Xiang Jianfeng. After a series of arguments, they ended up approaching a mediation committee leader, who pacified both parties and urged them to remember that they were fellow villagers and that the two families had always been on amicable terms. Qian reveals, however, that their decision to mediate went beyond a simple inclination to yield (rang) and

213 Tian Qian “In Search of Social Life with ‘No Litigation’: A Case study of People’s Mediation in Southeastern Chongqing,” Social Sciences in China 37, no. 2 (2016): 150. 76 instead, represented a rational choice based on the contours and demands of rural life. For context, the disputants reside in Malu Village, which witnessed nearly half of its population seek migrant work in the cities by 2008 and leave behind a daunting labor shortage; against this backdrop, Huang and Xiang understood that extrajudicial mediation was the only way to preserve a relationship that enables both families to aid each other.

It is true, however, that this sense of autonomy is limited by the context of China’s urban- rural divide. Rural communities have attempted to bridge this gap through “legal popularization movements” designed to “[disseminate] exogenous awareness of individual rights protection.”214

Tese movements, however, have largely been unable to reach the majority of rural audiences, whose educational background precludes a comprehensive grasp of concepts like litigation or rights. In spite of an enduring urban-rural gap, Qian’s case study of Southeastern Chongqing complicates existing narratives that examine People’s Mediation through the lens of the Party, and in doing so, illuminates the ways in which villagers and local governments are agents who embrace mediation as a way to navigate the conditions of modern rural life.

Only one question, then, remains: if mediation is an age-old legal tradition rooted in the

Confucian conception of harmony, what exactly is the role of Confucianism in mediation practices today? What do we make of the fact that while Confucianism no longer has a place in official political ideology, it remains alive within the family and within the individual habitus— constantly reproduced at the level of our everyday discourses and dispositions? Tese questions certainly evade clear-cut answers. China has had a tumultuous history of ups and downs with

Confucianism, which still remains an equivocal subject to this day: while it was once the underpinning of Chinese sociolegal and political thought, the Mao regime assailed Confucianism for its backward glorification of feudal infrastructure and for its role in suppressing China’s revolutionary potential.

214 Ibid., 153. 77

Chapter 3 People’s Mediation, Confucianism, and Cultural Nationalism

Introduction

In 2013, President Xi Jinping paid an unexpected visit to Confucius’ hometown, Qufu in

Shandong Province, shedding light on the new role that Confucianism has assumed in contemporary China. Tere, he addressed an eager crowd of scholars about the treasures of

Chinese culture and discussed with them the best ways to study Confucius’ teachings. How do we make sense of China’s identity crisis during the 20th century—the sweeping transition from an unforgiving “Maoist antipathy to tradition” to a contemporary spirit of cultural revivalism?215

Despite decades of official condemnation, Confucianism is now experiencing a remarkable revival on several levels. We need look only to the 2008 Beijing Olympics for proof that Confucius and his teachings have been resurrected from silence, re-oriented as one of the essential mainstays of

Chinese culture. In the Opening Ceremony, for instance, one segment featured performers in

Zhou-era attire modeled after Confucius’ disciples, chanting two passages from the Analects against a tribal drumbeat: “Isn’t it great to have friends coming from afar?” and “All men are brothers within the Four Seas.”216 In the rest of the segment, performers disguised as movable type blocks move up and down to form the Chinese character for harmony (he) in three distinct styles.

Tis motif certainly looms large within contemporary political rhetoric as well—not just

Hu Jintao’s “Harmonious Society” (hexie shehui), but also Xi Jinping’s more recent “Chinese

Dream” (zhongguo meng)—a narrative put forth in 2012 to reaffirm China’s cultural self- confidence and soft power and to insert into public imagination a collective dream of China’s prosperity. As discussed in the previous chapter, harmony-centered rhetoric was also deeply

215 Daniel A. Bell, “Reconciling Socialism and Confucianism?: Reviving Tradition in China,” Dissent 57, no. 1 (Winter 2010): 91. 216 Analects 1:1, 12:5 78 embedded in the CCP’s defense of People’s Mediation, which made a swift comeback after Hu

Jintao took reign in 2002. Lutgard Lams sees this discursive turn as constituting a series of narrative macro-strategies that presents an idealized Chinese national identity to both international and domestic audiences. In pushing these narrative strategies, Lams writes, “the conductor’s baton is held more tightly, the main melody is chanted more loudly and the echoes are carried further abroad over the mountains and seas via the new Silk Road initiatives to present an alternative world order of ‘Socialism with Chinese characteristics.’”217

Te Confucian Revival is not only reshaping Chinese political and public life; as this chapter will illuminate, it has permeated and left indelible marks on China’s legal system in recent years, even with decades of experimentation with Western “rule of law” paradigms especially under the Xi administration. Yet, these observations warrant broader conversations about the nature of Chinese law in modern society, as well as the ways in which we interpret it. As Teemu

Ruskola laments, “that the Chinese legal tradition is lacking is an observation as clichéd as the solicitude that is routinely expressed toward comparative law.”218 In fact, to scholars like Carl

Minzner and Benjamin Liebman, the CCP’s renewed emphasis on People’s Mediation confirms the theory that China is choosing to “turn against the law.”219 Certainly, these attitudes reflect legitimate concerns about principles like due process and rule of law that are, in many ways, the hallmarks of Western legal frameworks. Yet before accepting such assumptions at face value, it is necessary to deconstruct the normative standards to which we hold China and its legal system.

What historical constructs, paradigms, and prejudices color our confrontations with Chinese law?

What about the possibility of a “Chinese modernity?” In the spirit of addressing these questions, this chapter aims to achieve three things: first, to unpack the Confucian Revival; second, to understand the effects of this movement on legal institutions like People’s Mediation; and third,

217 Lutgard Lams, “Examining Strategic Narratives in Chinese Official Discourse under Xi Jinping,” Journal of Chinese Political Science 23 (2018): 387. 218 Teemu Ruskola, “Legal Orientalism,” Michigan Law Review 101, no. 1 (October 2002): 181. 219 See Carl Minzner, “China’s Turn Against Law” and Benjamin Liebman, “Law-Stability Paradox.” 79 to situate these phenomena within China’s ongoing quest to negotiate its identity in an age fraught with anxieties about “modernity.”

Te Culture Fever and Questions of Modernity

As Arif Dirlik writes, for over half a century, Confucianism was condemned “to the proverbial ‘dustbin’ of history as an ideology rendered defunct by Chinese progress toward modernity, be it under capitalism or communism.”220 Deemed backwards and no longer an inheritable tradition, revolutionaries during the Cultural Revolution destroyed as many relics and reminders of Confucius as possible, from temples and shrines to prints and texts. However, its decline had begun long before the seeds of the Cultural Revolution had flowered. As early as the

Republican Revolution of 1911, Chinese authorities and intellectuals were losing faith in the

Confucian tradition, holding it liable for many of China’s political and social ills at the time; in their eyes, Confucianism preserved oppressive “feudal” structures that sacralized rigid hierarchies and extinguished the creativity needed to drive China forward in its modernization project. Tis account was ultimately based on two diagnoses for Confucianism’s failure to suit contemporary needs: one Marxist and one Weberian.

Marx’s theory of history, written from the lens of historical materialism, sees history as unfolding across a sequence of stages marked by modes of production—from feudalism to capitalism and then inexorably to socialism. Marxist historiography in China painted

Confucianism as an expression of a feudal structure dominated by the interests of a feudal ruling class for centuries; it thus presaged a natural death for Confucianism as China became capitalist and then succumbed to the revolution that would bring about communism, as well as a new constellation of social formations. Given that Confucianism became equated with an oppressive period of feudal authoritarianism, it was allowed to survive as a symbol of Chinese national

220 Dirlik, “Confucianism in the Borderlands,” 229. 80 identity only in association with a condemned past. As Dirlik suggests, “Confucianism had been placed in a ‘museum,’ preserved for posterity without interfering in the task of modernization.”221

An equally salient critique of Confucianism stemmed from the Weberian assumption that

China lacked the ideal prerequisites for modernization. Weber’s celebrated text, Te Protestant

Ethic and the Spirit of Capitalism famously proposed that the modern capitalist mentality was a sublimated form of the Puritan work ethic, which served to reconcile the conflict between virtue and profit by means of God’s “calling.” In Te Religion of China: Confucianism and Taoism, Weber argues that China, on the other hand, failed to develop modern industrial capitalism precisely because “the Chinese lacked the central, religiously determined, and rational method of life which came from within and which was characteristic of the classical Puritan.”222 Granted, Weber does not deny that imperial China had engaged in commerce or basic economic activity. Rather, his aim in writing Te Religion of China was to unpack the reasons that modern capitalism could not arise from those basic beginnings. His answer to this was Confucianism, an ethic that appeared world-affirming, traditional, and immersed in “magic."

Weber concludes that Confucianism and Puritanism embodied two, mutually exclusive types of rationalism aimed at ordering human life according to their respective worldviews. Both were certainly “‘sober’ in that they were both methodical,” but their manifestations were “radically different.”223 Te difference between Confucianism and Puritanism is the difference between world accommodation and world mastery: where both the Confucian and the Puritan exercise diligence and virtue in their everyday lives, “the Confucian lived contentedly in world [while] the

Puritan needed to master it.”224 Te Confucian rationalized his conduct only to the extent necessary for adjusting to the world around him. But the Puritan saw himself as a “tool of God”

221 Ibid. 222 Max Weber, Te Religion of China (New York: Te Macmillan Company, 1951) 223 Christopher Adair-Toteff, “Max Weber on Confucianism versus Protestantism,” Max Weber Studies 14, no. 1 (January 2014): 92. 224 Ibid. 81 who, in the name of God’s calling, must exercise asceticism and self-discipline in his pursuit of a transcendental goal. Weber believed that only the latter form of rationalism could produce “the rational calculable functions of law and administration” and “machine-like calculations” conducive to the rise of modern capitalist institutions.225 As many scholars have already pointed out, Weber’s grasp of Confucianism, drawn mostly from the European imagination, is incomplete. He accordingly treats this complex subject as a static and backwards ethic that inherently misses the teleology of a Eurocentric paradigm of modernism.226 Nonetheless, both

Marxist and Weberian critiques were potent enough to subject Confucianism to a violent political attack that spanned decades. Indeed, however, Confucianism was far from dead—it was simply sentenced to taboo, until it became a mere memory of China’s cultural past whose relevance to contemporary times had faded.

Now, fast forward to the present day, these attitudes have largely dwindled. In their place arose intellectual communities that have once again breathed life into the study and re-appraisal of Confucianism across many dimensions—political, social, economic, psychological, feminist, and beyond. Before delving into Confucian revivalism, however, we must take one step back and examine one of its key drivers: the culture fever (wenhua re), or what Xudong Zhang defines as

“[the] nationwide discussion of notions such as culture, tradition, modernity, and particularly the meaning and implications of Western theories.”227 In the words of Edward Gu, “the period from

1979 to 1989 was one of thawing and awakening.”228 Following China’s transition into a market economy, the government also began to flirt with the idea of “emancipating” the people’s minds, at least at the level of official rhetoric. In the wake of Mao’s death, Deng Xiaoping delivered a

225 Ibid., 82. 226 See Jack Barbalet, Confucianism and the Chinese Self: Re-Examining Max Weber's China (London: Palgrave Macmillan). 227 Xudong Zhang, “On Some Motifs in the Chinese ‘Cultural Fever’ of the Late 1980s: Social Change, Ideology, and Teory.” Social Text 39 (Summer 1994): 129. 228 Edward X. Gu, “Cultural Intellectuals and the Politics of the Cultural Public Space in Communist China (1979-1989): A Case Study of Tree Intellectual Groups,” Te Journal of Asian Studies 58, no. 2 (May 1999): 389. 82 pivotal keynote address at the Tird Plenary Session of the Eleventh Central Committee of the

CCP in December of 1978, urging Party members to refrain from submitting blindly to the ideological boundaries prescribed by the Gang of Four and instead, explore new and different ideas for China’s modernization. In this spirit, Deng proclaimed:

To make revolution and build socialism we need large numbers of pathbreakers who dare to think, explore new ways and generate new ideas. Otherwise, we won't be able to rid our country of poverty and backwardness or to catch up with—still less surpass—the advanced countries. We hope every Party committee and every Party branch will encourage and support people both inside and outside the Party to dare to think, explore new paths and put forward new ideas, and that they will urge the masses to emancipate their minds and use their heads.229

Te prospects of “thought emancipation” made it possible for both Party members and Chinese intellectuals to break free from the rigid molds of Maoism and examine China in comparison to the outside world for the first time in decades. Inevitably, intellectuals soon found themselves embroiled unwittingly in “the middle of a cultural dilemma: either attempt to modernize China in line with the outside world or endeavor to preserve the cultural traditions that had been the very basis for Chinese cultural pride.”230 Tis dilemma sparked an unofficial cultural movement widely known as the “culture fever”—an unprecedented moment of cultural pluralism through which the public explored intellectual frameworks derived from the West, while simultaneously debating and interrogating the role that China’s cultural past should play in the nation’s present and future. It created a new public space, built on a literary and intellectual renaissance that proliferated discourse on the essence of Chinese culture and modernity. An endless series of books, periodicals, and seminars reached public audiences. New topics and questions entered the forefront of scholarly imagination. New possibilities for China’s future were envisioned. Te

1980s, in all of its complexity, gave rise to new currents of thought that challenged orthodox

229 “Emancipate the mind, seek truth from facts and unite as one in looking to the future,” December 13, 1978. http://cpcchina.chinadaily.com.cn/2010-10/15/content_13918199.htm. 230 Xianlin Song, “Reconstructing the Confucian Ideal in 1980s China: Te ‘Culture Craze’ and New Confucianism.” In New Confucianism: A Critical Examination (New York: Palgrave Macmillan, 2003), 82. 83 ideology, placed China in conversation with the West, and inspired an unprecedented discursive space for re-examining China’s cultural traditions.

According to Edward Gu, the culture fever owed much of its influence to “intellectual groups” like editorial committees, unofficial institutions or academies, and research groups. Such enterprises allowed emergent discourses to be “not only intellectually distinguishable but also institutionally and financially independent”; they reclaimed a space once confined to state- controlled ideology and, with autonomy from the party-state, made it their own.231 Among the most prominent of these enterprises were the editorial committee of the Towards the Future series

(Jiaoxian Weilai), which promoted science as a remedy for China’s incomplete modernization; the

Academy of Chinese Culture (Zhongguo Wenhua Xueyuan), which sought to advance cross- cultural research in philosophy; and the editorial committee of the Culture: China and the World series (Wenhua: Zhongguo yu Shijie), which introduced and translated Western theoretical developments in the social sciences. Te last committee for instance, spearheaded by Gan Yang, undertook an impressive publishing project that translated a host of non-Marxist foreign scholarly classics—Nietzche, Weber, Heidegger, Kant, Foucault, Adorno, and beyond. In this sense, each intellectual group operated with different visions but were equally compelled to unravel the tantalizing duality of tradition and modernity.

Te Confucian Revival as a Project of Cultural Nationalism

Out of the culture fever, which blazed on throughout the 1980s, emerged the Confucian

Revival. Indeed, one of the culture fever’s most crucial legacies was a lively burst in interactions between mainland and overseas intellectuals in the realm of Chinese philosophy, particularly New

Confucianism (xin ruxue). As noted by John Makeham, who has offered one of the most comprehensive examinations of ruxue discourse thus far, we must distinguish between New

231 Zhang, “On Some Motifs in the Chinese ‘Cultural Fever’ of the Late 1980s,” 130. 84

Confucianism and the Confucian Revival: while the former is a “distinct philosophical movement with its own self-identity,” the Confucian Revival is a much broader “conservative cultural phenomenon that has taken on a variety of forms throughout the twentieth century.”232 New

Confucianism as a movement occupies a central position within the Revival, but the two should not be mistaken as interchangeable. For the purposes of this thesis, which seeks to illuminate the

Confucian Revival’s expressions in contemporary China, I choose to confine the following discussion of the Revival to more recent decades, from the 1980s and onward.

New Confucianism was not exactly “new” at the time of the culture fever. Although the architects of this movement did not market themselves as “New Confucians” at the time, this community had emerged in the early 1950s after a number of leading scholars left the mainland to Taiwan, Hong Kong, and the United States. Among the pioneers of New Confucianism are

Mou Zongsan and Tang Junyi, both of whom had studied philosophy in Chinese universities before they left to Hong Kong and Taiwan during the Communist Revolution. As students of philosophy, both had immersed themselves in the works of Western thinkers like Hegel and Kant, eventually weaving many of their perspectives into a reimagined Confucian context. In 1958,

Mou and Tang joined with other colleagues to jointly issue “A Manifesto to the World’s People on

Behalf of Chinese Culture” (Wei Zhongguo wenhua jingzao shijie renshi xuanyan), a landmark document asserting that the core of Chinese culture “lies in the ‘learning of the heartmind and

(human) nature” (xinxing zhi xue).233 While the manifesto is widely interpreted as “an emblematic expression of cultural conservatism,” its deeper ambition was to universalize the Confucian experience in language that resonates with Western audiences.234

232 Makeham, “Retrospective Creation of New Confucianism,” in New Confucianism: A Critical Examination (New York: Palgrave Macmillan, 2003), 25. 233 Stephen Angle, “Te Adolescence of Mainland New Confucianism,” Contemporary Chinese Tought 49, no. 2 (2018): 85. Angle calls this “moral Confucianism.” 234 Alice Simionato, “Te Manifesto of 1958: a discourse on Confucian Rationalism,” Rivista di estetica 72 (2019): 125. 85

Te movement spearheaded by Mou and his colleagues, according to renowned ruxue intellectual Du Weiming, represents the third wave of Confucian intellectual history—the

“ongoing encounter of the Confucian tradition/s of the second epoch or the tsunami engendered by the arrival of Western imperial hegemonic power in East Asia.”235 Tis wave is grounded in the theme of“creative transformation”—a vision in which the principal tenets of Confucianism morality can be simultaneously restored and transformed in line with the demands of modern society. New Confucians wanted to stay true to the “fundamental concern[s] of the Confucian tradition”—“learning to be human” and “seeking harmony with nature and mutuality with

Heaven.”236 Tey thus focused on Confucianism as a spiritual tradition, rather than

Confucianism as an abstract ruling philosophy. In advocating for the reconstruction of Confucian morality, they also sought to insert a distinctly Confucian perspective into the totalizing Western narrative of capitalist modernity. Beginning in the 1980s, the conversation about Confucianism in the contemporary world transcended national boundaries and inspired arguably one of the most animated periods of the Confucian Revival to date.

It was through the culture fever that New Confucianism began to capture the interest of intellectuals and authorities in mainland China, where Confucianism had previously been relegated to the dustbin of history. For one, the narrative of “rujia (Confucian) capitalism,” which had been used to explain the emergence of a powerful entrepreneurial spirit and rapid economic development in East Asian countries like Japan and South Korea, was attractive to scholars concerned with China’s own modernization program. Te notion of “rujia capitalism” seemed to rival the long-standing and deeply-influential Weberian thesis that modernization was equivalent to Westernization. As Wang Hui wrote in 1998, “Clearly, Confucian capitalism is an ideology of

235 John B. Berthrong, “Riding the Tird Wave: Tu Weiming’s Confucian Axiology,” Dao: A Journal of Comparative Philosophy 7, no. 4 (2008): 423-424. 236 Ibid., 429. 86 modernization.”237 Now that China was steering a path of economic reform and development,

Wang contends, Confucianism must no longer be regarded “as an obstacle to modernization but rather as a key motivating factor for its realization”; it gives countries like China the agency to embrace modernity on its own terms.238

A second (and perhaps the more compelling) feature of the culture fever was that it had become a “discursive space for studying and discussing ruxue on the strength of its perceived role in the cultural tradition of the ‘Chinese nation.’”239 At the time of the culture fever, China was caught in the midst of a crisis of values; public faith in the Marxist-Leninist and Maoist dream had eroded but failed to be replaced with a coherent or consistent vision for China’s future. Te fever’s searing call for self-reflection left China with even more challenging questions about its identity, as well as its role on the global stage. What remained instead was an ideological vacuum that desperately needed to be filled. As such, “Research on New Confucianism” received funding in 1986 under the national seventh five-year plan for philosophy and the social sciences, followed by a series of official and unofficial Confucian restoration activities. Te ice was thus broken, catalyzing a mirror movement in the mainland that would come be known as “Mainland New

Confucianism.”240

Te deepening chasm between “overseas New Confucianism” and “Mainland New

Confucianism” was, itself, evidence that tensions between multiple visions of ruxue were emerging. In reality, the Confucian Revival was not a uniform movement, but an experience of

“intellectual cross-fertilization and rivalry” between scholars everywhere, who each approached ruxue with varying terms and conditions for the renegotiation of Confucianism. Indeed, neither ruxue nor the present-day revivalist movement are monolithic entities; rather, they are “composite

237 Wang Hui, "Contemporary Chinese Tought and the Question of Modernity,” Social Text, no. 55 (1998): 22. 238 Ibid., 21. 239 Makeham, Lost Soul, 54. 240 Angle, “Te Adolescence of Mainland New Confucianism,” 85. 87

[entities] composed of discrete elements,” each of which carries a different conception of ruxue tailored to specific locations in time and space.241 While Mainland New Confucianism initially inherited the theories of “overseas” New Confucians like Du Weiming and Mou Zongsan, mainland scholars could not escape the question of whether such theories were applicable to the unique social and political realities of mainland China. Fang Keli believed, for instance, that overseas New Confucianism opposed dialectical materialism and were critical of Marxism. In this sense, the Confucian Revival was and continues to be a dynamic process of creative transformation, fraught with “new methodologies and problematics.”242 It is not, on the contrary, a homogenous or unidirectional expression of cultural conservatism. In fact, as Jing Wang writes, the contemporary revivalist movement marks a “qualitative departure” from previous problematics in that it entails a “dual, simultaneous movement of modernity’s critique of tradition and tradition’s critique of modernity.”243

Among the most prominent strands of Mainland New Confucianism are Political

Confucianism (zhengzhi ruxue) and, more recently, Left Confucianism. Both iterations of ruxue are rooted in endeavors to adapt Confucian tenets to the peculiarities of mainland Chinese society and recast Confucianism as an antidote for the growing problem of political legitimacy. Jiang

Qing argues that the state now needs a new philosophical foundation based on the “Gongyang learning” practiced during the Han Dynasty, which “deemphasized the pursuit of inner perfection and focused on creating institutions that would sustain political order.”244 Jiang posits that the value of Political Confucianism lies in its pragmatic orientation—it is politically engaged and not confined to the moral metaphysics of overseas New Confucians. Equally concerned with the state’s dwindling political legitimacy, Left Confucianism “attempts to combine the socialist with

241 Makeham, Lost Soul, 99. 242 Ibid., 58. 243 Jing Wang, High Culture Fever: Politics, Aesthetics, and Ideology in Deng’s China (Berkeley: University of California Press, 1996), 65. 244 Angle, “Te Adolescence of Mainland New Confucianism,” 86. 88 the Confucian tradition in a way that allows Confucianism to enrich and change socialism.”245 Its proponents seek a political model located at the intersection of Confucianism and socialism— one that can restore public morality and public faith in the state. Both have yet to be translated into practice, but they are emblematic of intellectual efforts to render Confucianism socially and politically relevant to contemporary mainland China.

In many ways, the Confucian Revival reveals the deep-seated tensions between ruxue and

Chinese identity, between tradition and modernity. Tis phenomenon set in motion “a remarkable process of reiteration and reimagination” of Confucianism that both academics and officials used to navigate the many faces of China’s history, culture, and heritage.246 In its attempt to subvert the imagined yet hegemonic binary between tradition and modernity, China is seeking solace in the promising space of traditional culture. And, in its attempt to drive forward the utopian visions of Chinese modernity demanded by the culture fever, China is choosing to walk forward with a backwards gaze.Tus to Makeham, the Confucian Revival is an expression of and exercise in cultural nationalism, which he defines as “the conviction that the unique culture associated with the nation constitutes the basis of national identity.”247 Linking contemporary ruxue discourse to cultural nationalism not only illuminates the Chinese experience identity- building, but also addresses the questions left unanswered by culturalism on one hand and state- nationalism on the other.

Te sheer importance of ruxue to Chinese identity might at first glance express culturalism, or the belief that “cultural identity ‘trumps’ or is more primordial than political or even ethnic identity.”248 An illustrative example of this type of consciousness is the concept of

“cultural China” (wenhua Zhongguo), which defines “Chineseness” on the basis of culture. Du

Weiming’s own intepretation of “cultural China,” for instance, is based on “a continuous

245 Daniel A. Bell, “Reconciling Socialism and Confucianism?: Reviving Tradition in China,” 93. 246 Xianlin Song, “Reconstructing the Confucian Ideal,” 87. 247 Makeham, Lost Soul, 9. 248 Ibid., 10. 89 interaction among three symbolic universes.”249 Te first sphere contains mainland China,

Taiwan, Hong Kong, and Singapore; the second contains Chinese communities across the globe, including diaspora populations in places like Malaysia and the United States; and the third refers to “individuals, such as scholars, teachers, journalists, industrialists, traders, entrepreneurs, and writers, who try to understand China intellectually and bring their conceptions of China to their own linguistic communities.”250 To mainland Chinese scholars, however, the principal flaw in the culturalism thesis is that it fails to identify the intrinsic connection specifically between ruxue and

Chinese identity; in this vein, Makeham writes:

…the concept does not adequately convey widespread contemporary views about the connection between ruxue and Chinese identity, in particular, the ideas that ruxue has blended into the national character of the Chinese people; has created the national character; is the principal component of ‘the Han nation’s cultural-psychological formation’ (wenhua xinli jiegou); is the Chinese people's national spirit; is the foundation of the Chinese nation’s (Zhonghua minzu) identity; is the inner soul of the nation; and is the manifestation of the unconscious collective archetype of the Han nation.251

State-oriented nationalism, on the other hand, overemphasizes the political at the expense of the cultural and fails to account for the renaissance of cultural values embedded in contemporary discourse on the Chinese nation. In striking a creative balance between the “nation” as a bounded community and its cultural traditions, the notion of cultural nationalism proves to be a useful schema for understanding the link between ruxue and Chinese identity. As John Hutchinson writes, “Cultural nationalists should be regarded rather as mediators, who, ‘returning’ to an imagined past in circumstances of confusion, are engaged in a project of self-discovery and collective definition that may lead them to experiment with several alternative visions of the nation over an extended period.”252 Granted, cultural nationalism is still a “political” project in that it aims to define a national (even ethnic) identity, but it approaches this identity through the

249 Du Weiming, “Cultural China: Te Periphery as the Center,” Daedalus 120, no. 2 (Spring 1991): 12. 250 Ibid., 13. 251 Makeham, Lost Soul, 12. 252 John Hutchinson, “Re-Interpreting Cultural Nationalism,” 397. 90 lens of culture. In this way the participants in the Confucian Revival, then, are those mediators of time and of identity whose engagement with Confucian thought enables China to calibrate and re-calibrate a national vision that suits contemporary needs.

Te scholar credited with one of the most influential expressions of cultural nationalism in his work on ruxue is Li Zehou, who is especially renowned for his aesthetic theories. According to Li, a “cultural-psychological formation” (wenhua xinli jiegou) emerges out of a historically contingent process of “sedimentation” (jidian). Sedimentation is a term coined by Li to express the accumulation of social and cultural memory that serves to socialize humans and inform their normative realities. He writes, “as an ideology of social control for several thousand years, ruxue was no longer the thought of a particular class,” but rather became “sedimented” in the Chinese people’s “psycho-cultural formation” (wenhua xinli jiegou)—rendered the deeply-rooted, subconscious core of the Chinese character.253 Indeed, sedimentation is highly reminiscent of

Pierre Bourdieu’s notion of the habitus, which refers to a system of internalized dispositions that structure our experience of social reality; like the cultural-psychological formation, habitus is created through a collective rather than individual process, and socializes individuals into an identity group. In this vein, Li argues:

One of the characteristics of the term “ru” (regardless of whether the term refers to rujia, ruxue, or rujiao) is that its value and meaning are not necessarily tied to whether a person self-consciously identifies with and acknowledges being a ru. Rather, the value and meaning of ru is that it has been transformed into the principal component of the Han nation’s cultural-psychological formation (wenhua xinli jiegou).254

Contemporary People’s Mediation

If the Confucian Revival has redefined the boundaries and conceptions of Chinese culture, this reimagined version has inevitably permeated China’s legal system, leaving an

253 Makeham, Lost Soul, 119. 254 Li Zehou, “Chu ni ruxue shenceng jiegou jiangshuo,” Li, Zehou. “Chu ni ruxue shenceng jiegou jiangshuo” (An account of my initial thoughts on the deep structure of ruxue). In Rujia sixiang de xiandai quanshi (Modern Interpretations of rujjia thought), ed. by Li Minghui (Taipei: Zhongyang yanjiuyuan, Zhongguo wenzhe yanjiusuo choubeichu, 1997), 62. 91 indelible mark on many of its institutions and practices. Recall that legal scholars like Naomi

Mezey urge us to view law as culture—to understand the two entities as inherently interdependent, bound inextricably to one another in constructing our social worlds. With the

Party’s discursive shift toward narratives of China’s “excellent traditional culture” (youxiu chuantong wenhua) in recent years, what we now see is a “socialist rule of law with Chinese characteristics.” While this phrase has raised several questions among scholars of Chinese law, it is highly reflective of the Party’s endeavors to steer its own path of legality in the 21st century.

Without a doubt, much of this discursive shift has to do with the issue of legitimacy. In an age replete with concerns about a moral or ideological vacuum, the narrative inscribed in the

“Harmonious Society” and the “Chinese Dream” positions the Party as the “default inheritor of

Chinese civilisational heritage” and its only “legitimate carrier into the future.”255 Nowhere is this narrative more evident than in the realm of law.

Since the Hu-Wen administration, the CCP has embraced extrajudicial mediation with an unwavering backwards gaze, intent on rebuilding a bridge to a past legal tradition that Mao himself had tried to sever. Mediation remained alive under Mao, but it had assumed a radically different character and teleology. In line with Maoist dialectics, the CCP invented People’s

Mediation in the 1950s as a technique of the mass line aimed at espousing social change by

“correctly handing contradictions” among the people. In other words, People’s Mediation was creative to serve the Maoist vision. Yet in contemporary China, People’s Mediation has been reframed and is marketed as the spiritual successor to an ancient legal tradition, one that was built on a foundation of Confucian morality. Te unique history of People’s Mediation has been rewritten. As Michael Palmer writes, “legal writers not only portray mediation as a fine tradition of the Party but, in addition, characterize it as an important Chinese tradition” that pre-dates

Maoist thought.256 Such writers, for instance, proclaim that:

255 Alexandra Kubat, “Morality as Legitimacy under Xi Jinping,” 78. 256 Palmer, “Te Revival of Mediation in the People’s Republic of China,” 230. 92

People’s mediation is a long-standing and glorious tradition in my country. Foreign personages praise it as “China’s original creation,’ ‘China’s successful experience,’ and ‘an effective method [of dispute settlement].’ From ancient times onwards, the people in my country have had the fine tradition of resolving disputes by talking over matters in the context of mediation.257

People’s mediation, in essence, is constructed as a unique mark of Chinese identity rather than a

Maoist legal mechanism for dispute resolution. In order to legitimize “these claims to continuity and distinctiveness, however, certain inconsistencies and contradictions are often glossed over.”258

As such, many writers feel that it is necessary to locate a common ground between pre-socialist and socialist forms of mediation and revise their history as needed. For instance, one of the central issues scholars grapple with has to do with the “class nature” of mediation: because community mediators in the past were typically male village elites or local authorities who perpetuated village hierarchies, many are compelled to renegotiate its character in order to avoid contradicting the socialist emphasis on working class agency. By smoothing out ideological contradictions, the Party frames People’s Mediation as not just a legal institution, but a symbol of continuity with the past in all of its shapes and colors. More importantly, it is constantly celebrated for its role in contributing to China’s unique sociocultural landscape and helping to build a “harmonious society.”

In this vein, the reemphasis on People’s Mediation has given rise to increasingly complex questions regarding the institution’s legitimacy in the age of the “socialist rule of law,” which some

Chinese legal scholars call a “crisis of legitimacy” (hefaxing weiji). How exactly does People’s

Mediation fit into a legal order that many have sought to “modernize” since the 1980s? Is People’s

Mediation equipped to resolve the more sophisticated and specialized disputes (e.g., labor and intellectual property disputes) that have accompanied China’s rapid development? Is the quality of People’s Mediation comparable to that of formal avenues like litigation? In light of these questions, extensive research continues to be done during the Xi era on ways in which People’s

257 Ibid., 231. 258 Ibid. 93

Mediation can better reflect and respond to the increasingly fast-paced tempo of contemporary social life. Based on their observation of innovative People’s Mediation solutions in Shenzhen,

Zheng Hangsheng and Huang Jialiang’s agree that improvements to the institution’s design and efficiency are “inevitable options” for its continued influence in a new era.259

In the realm of structure and organization, Zheng and Huang write, People’s Mediation should expand its scope to include disputes much more complex than the traditional family, divorce, or community conflicts. A city that has become one of China’s most vibrant metropolises, Shenzhen has felt firsthand the profound effects of urbanization—in particular, the growing population of disenfranchised migrant workers, a widening income inequality, and resettlement conflicts incited by land acquisition and demolition. In response to these unprecedented challenges, Shenzhen has taken the initiative to pioneer new mechanisms for

People’s Mediation, especially for disputes arising from the city’s booming real estate market and new urban communities. Since 2004, Shenzhen’s Luohu District has established 471 People’s

Mediation organizations across housing estates, which cover over 90% of the district’s property and have mediated over 3,700 disputes as of 2008.260 Te guiding principle behind these organizations, in line with the increasingly popular harmony motif, has been “peace in the housing estate, stability in the community, harmony in the whole district.”261 Aside from real estate and labor, even the technology sector has witnessed unprecedented innovations: in the summer of 2018, the first “People’s Mediation Committee for Intellectual Property Disputes” was formally established in Beijing, with the hopes of addressing copyright and data-related disputes among content creators.262 In this way, authorities at all levels have come together to navigate

259 Zheng Hangsheng and Huang Jialiang, “On the Crisis of Legitimacy of the People’s Mediation System in Modern Society and Its Remodeling: A Sociological Analysis Based on Field Investigations of Urban Communities in Shenzhen,” Tinking (Sixiang Zhanxian) 34, no. 6 (2008): 6. 260 Ibid., 10. 261 Ibid. 262 “Shou jia hulianwang zhishi chanquan jiufen renmin tiaojie weiyuanhui chengli” (Te first people's mediation committee for Internet intellectual property disputes is established), Xinhuanet, July 20, 2018, http://www.xinhuanet.com/zgjx/2018-07/20/c_137337059.htm. 94

China’s ever-changing urban and technological landscape, creating novel ways for People’s

Mediation to remain a harmonious and reliable path for dispute resolution.

Another challenge for contemporary People’s Mediation is professionalizing the People’s

Mediators while affirming the institution’s grassroots character. In other words, authorities are relentlessly seeking ways to professionalize mediators—ensuring that they are equipped with sufficient legal knowledge—without sacrificing the integrity of the institution or rendering it a mere extension of the courts. One such solution is to establish a system of People’s Mediation instructors, which invites legal experts (e.g., districst court judges or senior judges) to train mediators on the law, help complete mediation documents, and guide mediators through any complicated disputes. According to Gu Jinhai, another solution lies in mobilizing relevant local professionals to form a “mediation team” that integrates multiple areas of expertise, allowing mediators to formulate effective solutions for disputes of all forms.263 In weaving together personnel from a variety of local organs, the public is reminded that People’s Mediation is not the function of “a single judicial administrative agency” but an integral part of a grassroots project for

“new rural construction.”264

In the spirit of these solutions, the CCP and its legal entities jointly promulgated the

“Opinions on Strengthening the Building of People’s Mediator Teams” in April of 2018, which lays out guidelines for improving the qualifications, organization, and experiences of People’s

Mediators.265 Tis document, for example, reiterates the need to revamp People’s Mediation training programs with standardized training content and evaluations, focused lectures with case studies, opportunities for field visits or on-site observations, and internet-based technologies with diverse virtual resources. It also urges local authorities to address the pressing issue of job security

263 Gu Jinhai, “Lun xinshiqi renmin tiaojie gongzuo de diwei he zuoyong” (On the Position and Function of People’s Mediation Work in a New Era), 264 Ibid. 265 Ministry of Justice, “Guanyu jiaqiang renmin tiaojieyuan duiwu jianshe de yijian” (Opinions on Strengthening the Building of People’s Mediator Teams), April 27, 2018, http://www.moj.gov.cn/ government_public/content/2018-04/27/tzwj_18696.html. 95 by arranging subsidies on a case by case basis, improving funding mechanisms in regions under

financial distress, and providing pensions for mediators whose work has been disrupted (i.e. due to an injury or another extenuating circumstance). By mapping out contemporary strategies to build its honor and legitimacy, the document serves to reiterate the Xi administration’s firm commitment to People’s Mediation.

Te document’s most striking feature, however, is its suggestion that People's Mediation embodies the intersection between “socialist rule of law” on one hand and “mediation culture” on the other.266 Such a narrative responds to the common concern that the two are mutually exclusive, wherein any “rule of law” regime should preclude a culture of mediation (and vice versa). Although it does not delve into the specifics of this intersection, the document explicitly weaves a connecting thread through the law, through mediation, and through virtue, writing that

People’s Mediators must “educate on the rule of law; focus on publicizing laws, regulations, and policies through the work of mediation; educate the public on abiding by the laws; and promote social ethics, professional ethics and family virtues.”267 In doing so, the state construes People’s

Mediation as a dispute resolution mechanism that epitomizes the “socialist rule of law with

Chinese characteristics.”

In this vein, even more important than the “crisis of legitimacy,” is perhaps the crisis of continuity—the challenge of fitting People’s Mediation into a coherent and continuous ideological narrative. Tis narrative enterprise is especially vital in the context of Xi’s “Chinese

Dream,” which is rooted in efforts to redefine the essence of the Chinese nation by, for instance, rejuvenating its Confucian tradition. Following this framework, the Xi administration endorsed a three-year plan in 2015 for the construction of “He Wei Gui" (harmony is most precious) mediation offices in various locations, which imbue the work of People’s Mediation with an unmistakably Confucian character. Indeed, in the very first book of the Analects, Master You says,

266 Ibid. 267 Ibid. 96

“In practicing the rules of propriety, it is harmony that is most precious” (li zhi yong, he wei gui).268 In appropriating the phrase “he wei gui,” the mediation office represents the state’s pointed efforts to rebrand People's Mediation with a new set of values, a new trajectory, and a new vision.

One account of a “He Wei Gui" mediation office in Shandong Province’s Jining City, renowned for being the hometown of both Confucius and Mencius, spells out its overarching objectives:

In positioning mediation, create a Confucian atmosphere; in selecting the members of mediation teams, focus on Confucian cultural literacy; in carrying out mediation, focus on Confucian cultural education; in building the brand of mediation, enrich Confucian cultural elements.269

Yet, Confucian morality is not only woven into the formulae of mediation work, but also etched into the offices’ physical space. To the left of Jining’s village committee courtyard is the “Village

Confucian Lecture Hall,” in which lecturers from a nearby academy instruct community members on Confucian ethics. To its right is the actual mediation office, over which looms a majestic sign bearing the words “He Wei Gui.” Upon stepping into the room, the first thing one notices are the large-lettered proverbs—for instance, “Virtue is never solitary; it always has neighbors” (de bugu, bi you lin)—plastered across the walls and tables.270 In Qinglong County’s

“He Wei Gui" mediation office, printed in a vibrant red on one of its walls are the words, “You yield a little, I yield a little, we all comfortably smile a little more” (ni rang yidian, wo rang yidian, shuxin de xiaorong duoyidian), echoing the Confucian value of rang; many offices even use a heart- shaped mediation table, meant to evoke feelings of benevolence, compassion, and sincerity. In these rooms, furnished with bold reminders of Confucius’ enduring presence, the mediators strive

268 Tere are two common translations of this passage from the Analects; D.C. Lau translates it as “harmony,” while James Legge and Edward Slingerland translate it as “harmonious ease" or “natural ease,” referring to internal flexibility rather than social coordination. While these translations are slightly different, they do not need to be mutually exclusive; in practicing ritual propriety, the virtuous individual achieves harmony with ease. See Analects 1:12 269 “‘He Wei Gui’ Tiaojieshi Huakai Kong Meng Zhi Xiang” (‘He Wei Gui' Mediation Offices Bloom in the Hometown of Confucius and Mencius,” May 6, 2019, http://sd.people.com.cn/n2/2019/0506/ c386910-32908396.html. 270 Analects 4:25. 97 to live up to his prescriptions for an ideal society—where “small contradictions do not leave the village, large contradictions do not leave the town,” and all contradictions are resolved.271

Many of these themes—continuity with the past and emphasis on virtues like harmony— are also packaged into propaganda campaigns that color the public’s perception of what Chinese law is and ought to be. One of the most famous campaigns pertaining to the law zooms in on

Judge Chen Yanping, also known by many as the “Tree No’s Judge” for her impeccable track record—no miscarriage of justice, no complaints, and no petitions filed against her. In January of

2010, the Supreme People’s Court held a meeting to award Judge Chen Yanping from Jiangsu

Province the medal of “National Model Judge,” urging the public to both celebrate and learn from her prolific accomplishments at the grassroots level.272 Following this meeting, her story became a national sensation. Who exactly is Judge Chen, and why did she steal the hearts of ordinary individuals and top officials alike—enough for her to become the center of a campaign for nationwide learning?

According to one feature story, Judge Chen is sweet-tempered and gentle, feminine and beautiful, but packed into her dainty frame is a heart swollen with drive, vigor, and compassion.

She is a district court judge whom the people trust unwaveringly—a judge who has successfully handled over 3100 legal cases without a single wrong judgement, a single complaint or appeal, and a single petition filed against her by a displeased party. Yet, Chen’s image as a paragon of justice is derived not from her profound legal knowledge or experience. It is derived instead from her commitment to delivering justice with compassion and care in every case; as it is said among those who know of her style, “if a case falls into the hands of Judge Chen, we can rest assured, and our hearts free from anxiety.”273 Wang Xinfang writes that her style possesses four defining characteristics: she listens with open ears to the people’s appeals and demands; she investigates

271 “‘He Wei Gui’ Tiaojieshi Huakai Kong Meng Zhi Xiang.” 272 Te Supreme People’s Court of the People’s Republic of China, “SPC call on nationwide learning of Chen Yanping,” January 22, 2010, http://en.chinacourt.gov.cn/public/detail.php?id=4591. 273 Wang Xinfang, “Xin shiqi qunzhong luxian sifa jiazhi de fajue, sikao yu shijian,” Renmin sifa 7 (2012): 80. 98 and researches a case with open eyes to thoroughly ascertain its facts; she interprets the law with an open mind; and finally, she resolves disputes with an open heart, ensuring that she can be a safe haven for their trust.274

Based on these qualities alone, Wang asserts that the Judge Chen’s style and demeanor are entirely identical to those of Comrade Ma Xiwu, who had been hailed as a model judge during

Mao’s reign. On a surface level, Wang’s claim is certainly a valid one: like Judge Chen today,

Comrade Ma Xiwu was celebrated for prioritizing thorough investigations over speedy yet callous judgments, peaceful mediation over contentious adjudication. Like Judge Chen, Comrade Ma did not hesitate to reject the “cold,” “mechanical” Western expectations of formality, technicality, and impersonality when delivering justice in the courts.275 However, a closer analysis of the rhetoric used to characterize Judge Chen in the media complicates Wang’s rather one-dimensional comparison and reveals remarkable traces of Confucian influence.

As one feature article writes, despite Judge Chen’s small frame, she works arduously for an ambitious goal: “a world without litigation” (tianxia wusong)—reminiscent of Confucius’ very own ideals. For her efforts, Judge Chen is painted as the “perfect embodiment” of junzi (the

Confucian gentleman or superior person). In the Analects, it is written that “the junzi is not a vessel” (junzi bu qi)—that is, the accomplished individual is not a specialist in one function or task but an all-inclusive vessel capable of applying his or her virtue for diverse purposes.276

Reminiscent of a Confucian junzi, Judge Chen ensures that she judges according to official Party guidelines as well as the diverse realities of her constituents. She “not only pays attention to the study of local dialects and local customs, but also translates legal jargon into vernacular that individuals can grasp.”277 She strives to assimilate with the people, to feel the unique rhythm and

274 Ibid. 275 “Chen Yanping jingshen shi dangdai faguan de sixiang zhiyin” (Chen Yanping's spirit is an ideological model for contemporary judges), January 22, 2010, http://www.ngfy.gov.cn/News_View.asp?NewsID=845. 276 Analects 2:12 277 http://rmfyb.chinacourt.org/paper/html/2010-02/09/content_4032.htm 99 temper of life in the villages she serves, and to use “humanized” methods of law enforcement. She is not just a judge, but a bastion of justice and trust. In this vein, another article notes that traditional Chinese legal culture and its emphasis on virtues like ren (benevolence) constitute the foundation of Judge Chen’s style. Li Xiaomei notes that she parallels “the enlightened rulers of the past” who exemplified compassion and exercised benevolent governance.278 As Chen herself

firmly believes, “with a loving heart, a good heart, there will be a fair heart.”279

Alongside legal propaganda campaigns, popular media is also partially responsible for the reemphasis on mediation in contemporary China, given its critical position at the intersection between state and society. As Hawes and Kong note, although the Internet has undergone rapid growth, television still maintains a prominent position in China’s mass media and entertainment industry. Among the most popular genres that have come to dominate many provincial TV stations are the so-called “shows of human emotions” (qinggan jiemu), which open a window into the trials and tribulations of our everyday lives—family feuds, child-rearing challenges, extramarital affairs, and property disputes, to name a few. Yet, these shows are not entirely about the entertainment factor. Under the 2011 “Opinion on Strengthening the Management of

Programs Broadcast on Satellite Television Channels,” which imposed regulations on the types and quantities of shows permitted on Chinese satellite TV stations, each station is required to

“produce an ‘ethics building’ program to fulfill its social responsibility role.”280 Against this regulatory backdrop, TV mediation has proven to be an impressive solution, one that simultaneously satisfies “audiences’ voyeuristic demands for a ‘world of emotion’” and remedies moral uncertainty by embedding Confucian values in public consciousness.281 In fact, the

278 https://www.chinacourt.org/article/detail/2010/02/id/395229.shtml 279 Ibid. 280 Colin S. Hawes and Shuyu Kong, “Primetime Dispute Resolution: Reality TV Mediation Shows in China's ‘Harmonious Society,” Law & Society Review 47, no. 4 (2013): 749. 281 Ibid. 100 government itself has cited these mediation shows as an innovative way to direct public attention to the value of mediation.282

One of the earliest Chinese TV mediation shows was “Te New Family Mediator,” (Xin

Laoniangjiu) first broadcast in 2008 on one of Shanghai’s local TV stations, Shanghai Dragon

Satellite TV (Shanghai Dongfang weishi). When “Te New Family Mediator” rose to the top of the ratings, a host of other local TV stations followed in its footsteps, producing other popular versions like “Gold Medal Mediation” (Jinpai tiaojie) and “Xiao Guo Runs Errands” (Xiao Guo paotui). While these mediation shows employ dramatic and performative strategies, neither the featured individuals nor the cases are fictional—the mediators are selected from among real

People’s Mediators, and the cases themselves are real disputes from the city’s neighborhood committees. In order to demonstrate legal standing, shows like “Gold Medal Mediation” explicitly follow some of the guidelines written in the 2010 People’s Mediation Law, requiring disputants to sign and seal a formal Mediation Agreement (tiaojie xieyishu) upon reaching a successful conclusion.

For insight into the moralistic rhetoric that abounds in TV mediation, consider one episode of “Gold Medal Mediation,” which centered on a divorced couple’s dispute over real estate distribution for their children. Te wife’s distribution plan allocated much more property to her own children than to her husband’s only son, which she thought better reflected “her devotion to her husband and the son of the husband.”283 Upon listening to her logic, however, the mediator was appalled at her failure to consider how the distribution plan would affect the husband’s elderly parents; the mediator exclaimed:

How greedy (you are)! How greedy! Tough, according to you, the parents said that their real estate would be all yours, and it is up to you to handle it, we, as the children, should

282 Ministry of Justice, “Zhongguo tese renmin tiaojie zhidu de chuancheng fazhan” (Te Inheritance and Development of the People's Mediation System with Chinese Characteristics,” November 7, 2019, http:// www.moj.gov.cn/news/content/2019-11/07/zlk_3235389.html. 283 Deng et al., “Mediating Conflict on TV: A Discourse Analysis of the Gold Medal Mediation Episodes,” China Media Research 9, no. 4 (2013): 9. 101

take into consideration the parent’s needs in housing. According to the Law on the Protection of Rights and Interests of the Aged passed in our country, the children have the obligation to support their parents. To be frank, I’m telling you, one cannot be insatiably greedy. How could you say that, the female party? How long will you live in the world? What’s the meaning to fight for more property for your children?284

Neutrality was not one of the mediator’s concerns. Te mediator’s tirade was a living testament to the embeddedness of Confucian moral prescriptions in the work of mediation: it was the mediator’s duty to echo the belief that individuals must yield (rang) personal desires to the family’s collective well-being and dutifully exercise filial piety. Te case above also suggests that while law is an important component of the mediation process, seeing as mediators frequently articulate the legal basis of certain decisions, it is certainly not privileged. Rather, it is the

“constant affirmation of 'family feeling,’ ‘brotherly love,’ and ‘filial behavior’” that gets encoded as the takeaway message and publicly reproduced through audience interaction.285 Te mediator cited a specific Chinese law mandating filial obligations, but the crux of the case lay in exposing the moral implications of the wife’s selfish terms and conditions. As Hawes and Kong write in this vein, “individualistic insistence on rights and self-interest is discouraged, but in its place we do not see a revival of Communist values.”286

Given the amount of scrutiny placed on morality, it should come as no surprise that the

Xi regime favors a legal infrastructure based on “a law-morality amalgam.”287 Tis became especially clear in 2016, when the government issued “the CCP Central Committee’s Guiding

Opinions on Further Integrating Socialist Core Values into the Construction of Rule of Law.”

According to this promulgation, twelve “officially sanctioned moral values”—the national values of prosperity, democracy, civility, and harmony; the social values of freedom, equality, justice, and rule of law; and the individual values of patriotism, dedication, integrity, and friendship—were to

284 Ibid. 285 Hawes and Kong, “Primetime Dispute Resolution,” 763. 286 Ibid. 287 Delia Lin and Susan Trevaskes, “Creating a Virtuous Leviathan: Te Party, Law, and Socialist Core Values,” Asian Journal of Law and Society 6 (2019): 41. 102 be woven into all legal and judicial processes. Te marriage of law and morality in China is certainly not a new phenomena, but Xi’s campaign has taken it to unprecedented heights.

Werner Messier observes that the CCP’s renewed interest in Confucian morality plays an instrumental purpose, writing that “Confucianism means order and obedience to one’s superior, the devotion to the state, and the protection of the family.”288 It reminds individuals that they are part of a family, a community, and a nation, and that the interests of the collective should trump those of the individual. In reality, many intellectuals involved with the Confucian Revivals would decry this notion. As Makeham notes, both overseas and Mainland New Confucians have sought to distinguish “good” from “bad” ruxue, arguing against versions of ruxue that justify maintaining the power of state over society, the way that Confucianism had functioned in imperial China—to name a few, “imperial-style” ruxue (dizhishi de ruxue), which is connected to the ideology of an autocratic monarchy, and “politicized ruxue,” which served imperial courts. Lin Anwu asserts that these versions may have been historically dominant and significant, but “did not flow from the true source of ruxue.”289

As we have seen in the first chapter of this thesis, however, it was not uncommon for the state to appropriate Confucian rhetoric in order to emphasize obedience to the state. Although the Qing Dynasty was a Confucian state, the legacies of Legalism—the merciless ideology advocating for rigid rewards and punishments—had never vanished. Rather than a system of moral metaphysics oriented around self-cultivation, Confucianism in imperial China was expressed as an extensive regime of social and ideological control that served harmony only in name; community mediation flourished not because the Chinese inherently embodied the

Confucian pursuit of virtue, but because it was rendered a practical mechanism for preserving social stability.

288 Werner Messier, “China in Transition: New Intellectual Currents in the People’s Republic of China,” in China in Transition: Issues and Policies (London: Palgrave Macmillan, 1999), 19. 289 Makeham, Lost Soul, 102. 103

According to Delia Lin and Susan Trevaskes, the Xi administration extends this Confucian-

Legalist paradigm to the present day. In integrating law and morality, the Party is seeking to realize the “unification of thought between the Party on the one hand and the people that the

Party governs on the other.”290 Confucianism equips the Party with both the rhetorical and ideological power of social control, which enables it to maintain stability in a time of flux.

Especially after an incident like the 1989 Tiananmen Massacre, which claimed hundreds of lives, the marriage of law and morality is perhaps one of the Party’s many attempts to remedy its broken image and, at the same time, prevent such incidents from ever happening again. Lin and

Trevaskes thus make the compelling argument that the Party is creating “a virtuous Leviathan,” borrowing from Tomas Hobbes’ conception of an “omnipotent, all-powerful ruler to whom the people, as part of a social contract that ensured their protection, submitted their individual rights.”291 Tis virtuous Leviathan, gifted with centralized power and strength, imposes order onto a chaotic world.

Yet, there is another objective written into the Party’s agenda. Te revival of Confucianism and of culturally-informed institutions like People’s Mediation is emblematic of China’s ongoing quest to articulate its own vision of legal modernity. Classical theories of modernization have long held onto the belief that the cultural program of modernity as it emerged in the West (modern

Europe) would pervade the entire world, in all societies perched on the edge of modernization.

Implicit in these theories is the assumption that there exists a rigid, either/or binary between

Western and non-Western legal systems. Te West is painted as rational and scientific, while the non-West is described in almost opposite terms: irrational and subjective.

Consider Weber’s paradigm of legal rationality. Modernity, as envisioned by Weber, is symbolized by the Iron Cage—the condition of being trapped in the endless, merciless rationalization of social life. In this vein, he formulated a classification system—formal/

290 Lin and Traveskes, 42. 291 Ibid., 45. 104 substantive and rational/irrational—as a genealogy of law. Te first axis deals with a legal system’s ability to be guided by general, universally applicable rules. Te second deals with its autonomy, or the extent to which a system is able to generate rules and procedures that are free and separated from extralegal criteria like religion, politics, or ethics. Unsurprisingly, he maintained that “law should be purely ‘formal-rational,’ unified by legal logic into a consistent whole, and free from the influence of ‘external’ moral values lest it become a kind of ‘substantive-irrational’ law.”292 Under this typology, European and American law are considered formal-rational because cases entail the application of a general rule of law derived from abstract legal concepts and logic. In fact, Huang notes, scholars like Christopher Columbus Langdell (1826-1906) believed that law and jurisprudence “ought to be like Euclidian geometry.”293

On the other hand, Weber labeled imperial Chinese law “substantively irrational,” placing it in the same category as “khadi justice” (Kadijustiz), a sharia court tradition in which laws are purely arbitrary, subject to the whims of the judge. Like khadi justice, Weber believed that

Chinese law operated on a case-by-case basis (rather than through abstract, general rules) and heavily influenced by Confucian moralism. As Huang and many scholars of imperial Chinese law note, mediation is frequently invoked as a prime example of moralism in the law: mediation is an institution whose legitimacy and popularity rested on its purported ability to promote Confucian values. Yet, Confucian moralism exerted influence on many other aspects of the law—for instance, the influence of filial piety (xiao) and yielding (rang) on family law, property law, and divorce law. Weber’s narrative of modernity thus made it clear that the impersonal, logically rational law of the West reigns supreme, while the moralistic, less formal law of the non-West lags behind. Tat logic dictates, then, that despite substantial reforms oriented systemization and formalization after Mao, the law-morality amalgam under Xi’s leadership justifies classifying contemporary Chinese law as substantive, perhaps even irrational. It is also this logic that leads

292 Philip C.C. Huang, “Morality and Law in China, Past and Present,” Modern China 41, no. 1 (2015): 3. 293 Ibid., 4. 105 scholars like Carl Minzner to conclude that China is “turning against the law,” based on a rather narrow definition of what law is or ought to be.

One of the most animated conversations among scholars of Chinese law revolves around the rule of law in China. Among the “hallmarks of modernity are a market economy, democracy, human rights, and rule of law.”294 Te term abounds everywhere Chinese media, political rhetoric, and academic scholarship, but many believe that when uttered in China, it is nothing more than a half-truth or a mask for the injustice that exists under the state. As Richard Fallon Jr. eloquently writes, “Te Rule of Law is a historic ideal, and appeals to the Rule of Law remain rhetorically powerful, [yet] the precise meaning of the Rule of Law is perhaps less clear than ever before.”295 Certainly there are basic requirements for a rule-of-law regime that are widely agreed upon; Lon Fuller’s influential theory, for instance, states that laws should be general, public, prospective, clear, consistent, capable of being followed, stable, and enforced.296 However, there are also unavoidable variations in different regimes due to the sociopolitical, economic, or cultural context in which they are embedded. Tus, when making the claim that China lacks rule of law, it is often the case that Western commentators are referring to the liberal democratic form found primarily in modern Western states with an advanced market economy. When making the claim that China lacks rule of law, scholars hold China against the normative assumptions inherent in the mainstream narratives of modernity.

Rather than a “turn against the law,” perhaps the renewed emphasis on People’s Mediation is simply a reorientation of a modernized legal system, or, as Peerenboom writes, “a turn against liberalism and liberal legality.”297 Scholars like Minzner would certainly be skeptical of this interpretation, arguing that China has taken a visible step away from the legal reforms it

294 Randall Peerenboom, China’s Long March toward Rule of Law (Cambridge: Cambridge University Press, 2002), 1. 295 Fallon Jr., “‘Te Rule of Law’ as a Concept in Constitutional Discourse,” 1. 296 See Lon Fuller, Te Morality of Law (New Haven: Yale University Press, 1976). 297 Randall Peerenboom, “Te Battle Over Legal Reforms in China,” 207. 106 experimented with under the Deng administration—reforms that advanced litigation, court procedures, and property rights. However, I want to argue that a more productive conclusion is that the renewed emphasis on People’s Mediation in the 21st century can be situated within broader sociopolitical currents in China. I argue that People’s Mediation has become a paradigmatic expression of cultural nationalism—an institution that is uniquely “Chinese” and informed by a deeply-entrenched cultural system that has been renegotiated throughout history.

Tis does not mean that China is dismantling formal means of dispute resolution, but only that it is participating in its own process of creative transformation and engagement with the age-old question of modernity. People’s Mediation is an institution that the Party supports not only for its value in ordering society, but for its ability to prove that China is capable of maintaining a legal system that does not depend on the importation of Western categories. Like Wang Hui and others have demonstrated, there ultimately exists a “Chinese modernity”—unique from its mainstream Western counterpart and worthy of greater attention in scholarship on Chinese law. 107

Conclusion

Where it is anything but a fiction, the opposition traditionally established between Orient and Occident is met nowhere more clearly than in the domain of law.298 — Jean Escarra

Tis thesis is not a defense of People’s Mediation or of Chinese law, whether past, present, or future. It is instead an effort to situate the recent revival of People’s Mediation within China’s broader cultural-political projects and to enrich existing scholarship with a new lens. In considering People’s Mediation in light of the Confucian Revival, which has retrieved Confucius and his moral teachings from the dustbins of history, this lens grants us insight into the precedents, visions, and anxieties behind its continued popularity. People’s Mediation is a reflection of Xi’s “law-morality amalgam,” which serves a dual purpose: on one hand, to instill order in a society constantly in flux, and on the other, to exercise cultural nationalism in a broader quest for legal modernity. Most importantly, however, it is a dynamic institution whose significance stems from its capacity for creative transformation—which equips it with the ability to stand every test of time.

Tis thesis is not a comparative project, but more often than not, any description of non-

Western law seems unable to escape comparison. In choosing to write about People’s Mediation, I have implicitly opted to write about an institution that, to the Chinese is a uniquely “Chinese” legal tradition, but to the Western commentator is a rather jarring subversion of rule of law. It is virtually impossible to discuss or deconstruct foreign law without constructing it as an Othered subject. Indeed, after studying People’s Mediation for the past year, I have come across two competing impulses: on one hand, to appreciate China’s legal system in light of its “local knowledge,” and on the other hand, to avoid treating it as an Other. In many cases the tension

298 Jean Escarra, Chinese Law: Conception and Evolution, Legislative and Judicial Institutions, Science and Teaching (Cambridge: Harvard University Press, 1936). 108 between these impulses are irreconcilable, and it is this tension that epitomizes the challenges of legal scholarship today.

Chinese law presents an especially challenging case because it has historically been deemed incomplete, insufficient, and irrational. It has long been subject to deeply-rooted prejudices, denied the chance to be evaluated in light of its own rational justifications. Legal historian

Tomas Stephens, for instance, argues that “the Chinese system is not an adjudicative or legal system at all but a disciplinary one” and that perhaps an entirely new word should replace

“jurisprudence” to better reflect the study of Chinese law. Tis new word, which represents a rather misguided attempt to single out the study of Chinese law, is “obsequiiprudence”—the study of “the key functions of hierarchical subordination in the disciplinary context of social order.”299 Stephens falls into the trap of what Teemu Ruskola calls “legal Orientalism” by submitting to a stark East-West binary and believing Chinese law to be so otherworldly as to justify giving its scholarship a new, different name.

Te lens through which Stephen views Chinese law is not uncommon. In the preface to

Te Order of Tings, Michael Foucault cites a peculiar encyclopedia entry:

[In China,] animals are divided into: (a) belonging to the Emperor, (b) embalmed, (c) tame, (d) sucking pigs, (e) sirens, (f ) fabulous, (g) stray dogs, (h) included in the present classification, (i) frenzied, ( j) innumerable, (k) drawn with a very fine camelhair brush, (l) et cetera, (m) having just broken the water pitcher, (n) that from a long way off look like flies.300

In reality, this passage is a fictional entry quoted from a fable by Jorge Luis Borges (“Te

Analytical Language of John Wilkins”), but it immediately invites Foucault’s readers to ponder the fundamental gap between the Chinese and Europeans: upon reading this entry, what lurks in the readers’ imaginations is the notion that from animals to laws, the Chinese accept bizarre taxonomies, while the Europeans pursue a rational, Enlightenment-derived logic. Without a

299 Tomas Stephens, Order and Discipline in China: Te Shanghai Mixed Court 1911-1927 (Seattle: University of Washington Press, 1992). 300 Michael Foucault, Te Order of Tings (London: Routledge Classics, 2002), xvi. 109 doubt, some of these preconceived gaps between Chinese and non-Chinese law reflect the biases of the Chinese themselves, who would agree that morality and law are inextricably intertwined, especially under the current administration. Yet, as Ruskola notes, scholars have “failed to appreciate the role of law in China because of their tendency to take official Confucian pronouncements at face-value”—that is, without giving credit to the immense body of laws, courts, and other legal institutions that have guided China since imperial times.301 It is this tendency that has led to the conclusion that the current emphasis on People’s Mediation—which

I link to the Confucian Revival—reflects China’s “turn against the law.”

As this thesis demonstrates, however, People’s Mediation is a legal institution, inscribed in the law, backed by the law (e.g. by 2010 People’s Mediation Law), and used as a means to educate the public on the law. It is founded on Confucian ideals and encourages highly moralistic approaches to resolving civil disputes, but it is nonetheless a function of the law. As such, People’s

Mediation is an institution that embodies the duality of the term “Socialist rule of law with

Chinese characteristics,” which marries (at least rhetorically) the past and present, tradition and

“modernity” in the rational Weberian sense. And in doing so, it has vouched for the possibility of a “Chinese modernity.” Granted, phrases like “socialism with Chinese characteristics” or “socialist rule of law with Chinese characteristics” are “in danger of becoming sheer rhetoric.”302 Tese paradigms are indeed seismic narratives of continuity that attempt to smooth out an inherently discontinuous history. But People’s Mediation keeps these narratives alive by serving as a testament to the compatibility between law and morality, as well as the ongoing relevance of

Confucianism to modernity.

Du Weiming, whose work has been indispensable to the development of ruxue-related discourse, builds the case for a “Confucian modernity” that seeks to delimit and deterritorialize the fraught concept of modernity. S.N. Eisenstadt writes on the theory of “multiple modernities”

301 Ruskola, “Legal Orientalism,” 198. 302 Huang, “Morality and Law in China, Past and Present,” 33. 110 that “the best way to understand the contemporary world—indeed to explain the history of modernity—is to see it as a story of continual constitution and reconstitution of a multiplicity of cultural programs.”303 It is a constellation of programs rather than a totalizing Western program, and it is a constitutive project rather than an a priori historical fact. As Du sees it, the rise of

Confucian East Asia since the latter half of the 20th century only confirms the notion that the possibilities rooted in modernization assume varied cultural forms. Modernity is no longer a temporal orientation inherently opposed to tradition, but the way in which we—whomever “we” represents—choose to define what it means to be modern. For China, Confucianism is a central part of that definition, whether it be for cultural, social, or political purposes.

What, then, of the future of Chinese dispute resolution? Will People’s Mediation continue to be a widely supported institution? While these questions evade clear-cut answers, its creative transformation throughout history suggests that People’s Mediation will maintain its place as a trusted method of dispute resolution. More than anything, however, I believe that the future of dispute resolution in China lies in the constant tug-of-war, the unbreakable coexistence between traditional and Western legal paradigms. China’s quest for legal modernity, especially since the

1980s, has entailed a dynamic process of simultaneously learning from, reflecting on, and pushing back against Western traditions. Whatever this process yields moving forward—this is the future of dispute resolution in China.

303 S.N. Eisenstadt, “Multiple Modernities,” Daedalus 129, no. 1 (Winter 2000): 2. 111

Works Cited

Adair-Toteff. “Max Weber on Confucianism versus Protestantism.” Max Weber Studies 14, no. 1 (January 2014): 79-96.

Angle, Stephen C. “Te Adolescence of Mainland New Confucianism.” Contemporary Chinese Tought 49, no. 2 (2018): 83-99.

Antony, Robert J. Unruly People: Crime, Community, and State in Late Imperial South China. Hong Kong: Hong Kong University Press, 2016.

Bell, Daniel A. And Chaibong Hahm. Confucianism for the Modern World. London: Cambridge University Press, 2003.

Bell, Daniel A. “Reconciling Socialist and Confucianism?: Reviving Tradition in China.” Dissent 57, no. 1 (Winter 2010): 91-99.

Berthrong, John B. “Riding the Tird Wave: Tu Weiming’s Confucian Axiology.” Dao: A Journal of Comparative Philosophy 7, no. 4 (2008): 423-435.

Bodde, Derk and Clarence Morris. Law in Imperial China: Exemplified by 190 Ch’ing Dynasty Cases. Cambridge: Harvard University Press, 1967.

Bourgon, Jerome. “Uncivil Dialogue: Law and Custom did not Merge into Civil Law under the Qing.” Late Imperial China 23, no. 1 (June 2002): 50-90.

Chan, Joseph. “A Confucian Perspective on Human Rights for Contemporary China.” In Te East Asian Challenge for Human Rights, edited by Joanne R. Bauer and Daniel A. Bell. London: Cambridge University Press, 1999.

Chan, Peter C.H. “Te Enigma of Civil Justice in Imperial China: A Legal Historical Enqiry.” Maastricht Journal of European and Comparative Law 19, no. 2 (2012): 317-337.

Chen, Goh Bee. Law Without Lawyers, Justice Without Courts: On Traditional Chinese Mediation. Aldershot: Ashgate Publishing, 2002.

Choukroune, Leila and Antoine Garapon. “Te Norms of Chinese Harmony: Disciplinary Rules as Social Stabilizer.” China Perspectives 3 (2007): 36-49.

Cohen, Jerome. “Chinese Mediation in the Eve of Modernization.” California Law Review 54, no 3 (August 1966): 1201-1226.

Cong, Xiaoping. “Ma Xiwu’s Way of Judging: Villages, the Masses and Legal Construction in Revolutionary China in the 1940s.” Te China Journal 72 (July 2014): 29-52. 112

Deng, Yiheng, Xiaoqiu Fu, and Sang Ma. “Mediating Conflict on TV: A Discourse Analysis of the Gold Medal Mediation Episodes.” China Media Research 9, no. 4 (2013): 5-14.

Di, Xiaohua and Yuning Wu. “Te Developing Trend of the People’s Mediation in China.” Sociological Focus 42, no. 3 (August 2009): 228-245.

Dirlik, Alan. “Confucianism in the Borderlands: Global Capitalism and the Reinvention of Confucianism.” Boundary 2, 22, no. 3 (Autumn 1995): 229-273.

Du, Weiming. “Cultural China: Te Periphery as the Center.” Daedalus 120, no. 2 (Spring 1991): 1-32.

——— Humanity and Self-Cultivation: Essays in Confucian Tought. Boston: Cheng & Tsui Co., 1999.

Durkheim, Emile. Te Division of Labor in Society. New York: Te Free Press, 1933.

Dundes, Alan. “Folklore as a Mirror of Culture,” in Meaning of Folklore: Analytical Essays by Alan Dundes, edited by Simon J. Bronner, 53-66. Logan: Utah State University Press, 2007.

Eisenstadt, S.N. “Multiple Modernities.” Daedalus 129, no. 1 (Winter 2000): 1-29.

“Emancipate the mind, seek truth from facts and unite as one in looking to the future,” December 13, 1978. http://cpcchina.chinadaily.com.cn/2010-10/15/content_13918199.htm.

Fallon Jr., Richard A. “‘Te Rule of Law’ as a Concept in Constitutional Discourse.” Columbia Law Review 97, no. 1 (January 1997): 1-56.

Fei, Xiaotong. From the Soil. Berkeley: Te University of California Press, 1992.

Fu, Hualing and Richard Cullen. “From Mediatory to Adjudicatory Justice: Te Limits of Reform in China.” In Chinese Justice: Civil Dispute Revolution in China, edited by Margaret Y. Woo and Mary E. Gallagher, 25-57. Cambridge: Cambridge University Press, 2011.

Fu, Hualing. “Understanding People's Mediation in Post-Mao China,” Journal of Chinese Law 6, no. 2 (1992): 211-246.

Fu, Zhengyuan. Autocratic Tradition and Chinese Politics. London: Cambridge University Press, 1994.

Gellhorn, Walter. “China’s Quest for Legal Modernity.” Journal of Chinese Law 1, no. 1 (Spring 1987): 1-22.

Glassman, Eric J. “Te Function of Mediation in China: Examining the Impact of Regulations Governing the People's Mediation Committees.” Pacific Basin Law Journal 10, no. 2 (1992): 46-488. 113

Gu, Edward X. “Cultural Intellectuals and the Politics of the Cultural Public Space in Communist China (1979-1989): A Case Study of Tree Intellectual Groups.” Journal of Asian Studies 58, no. 2 (May 1999): 389-431.

"Guanyu zhengque chuli renmin neibu maodun de wenti” (On the Correct Handling of Contradictions Among the People), Renmin ribao, 19 June 1957. Translation from Selected Works of Mao Tse-tung (Peking: Foreign Languages Press, 1977), 5: 384-421.

Guo, Weiting. “Living with Disputes: Zhang Gang Diary (1888–1942) and the Life of a Community Mediator in Late Qing and Republican China.” Journal of the Canadian Historical Association 24, no. 2 (2013): 218-262.

Halegua, Aaron. “Reforming the People's Mediation System In Urban China,” Hong Kong Law Journal 35 (2005): 715-750.

Hawes, Colin S. and Shuyu Kong. “Primetime Dispute Resolution: Reality TV Mediation Showsin China’s ‘Harmonious Society.’” Law & Society Review 47, no. 4 (2013): 739-770.

“‘He Wei Gui’ Tiaojieshi Huakai Kong Meng Zhi Xiang” (‘He Wei Gui' Mediation Offices Bloom in the Hometown of Confucius and Mencius.” May 6, 2019. http://sd.people.com.cn/ n2/2019/0506/c386910-32908396.html.

Hsiao, Kung-chuan. Rural China: Imperial Control in the Nineteenth Century. Seattle: University of Washington Press, 1960.

Huang, Philip C.C. Civil Justice in China: Representation and Practice in the Qing. Stanford: Stanford University Press, 1996.

——— Civil Justice in China, Past and Present. Lanham, MD: Rowman & Littlefield Publishers, 2010.

——— “Court Mediation in China, Past and Present.” Modern China 32, no. 3 (July 2006): 275-314.

——— “Divorce Law Practices and the Origins, Myths, and Realities of Judicial ‘Mediation’ in China.” Modern China 31, no. 2 (April 2005): 151-203.

——— “Morality and Law in China, Past and Present.” Modern China 41, no. 1 (2015): 3-39.

——— Te History and Teory of Legal Practice in China: Toward a Historical-Social Jurisprudence, edited by by Philip C.C Huang and Kathryn Bernhardt, 175-210. Boston: Brill, 2014.

Kubat, Aleksandra. “Morality as Legitimacy under Xi Jinping: Te Political Functionality of Traditional Culture for the Chinese Communist Party.” Journal of Chinese Affairs 47, no. 2 (2018): 47-86. 114

Lams, Lutgard. “Examining Strategic Narratives in Chinese Official Discourse under Xi Jinping.” Journal of Chinese Political Science 23 (2018): 387-411.

Lewis, John W. Leadership in Communist China. Ithaca, NY: Cornell University Press, 1963.

Li, Chenyang. “Te Confucian Ideal of Harmony.” Philosophy East and West 56, no. 4 (October 2006): 583-603.

Li, Victor H. Law Without Lawyers: A Comparative View of Law in China and the United States. Boulder: Westview Press Inc., 1978.

Li, Weng. “Philosophical Influences on Contemporary Chinese Law.” Indiana International & Comparative Law Review 6, no. 2 (1996): 327-336.

Li, Zehou. “Chu ni ruxue shenceng jiegou jiangshuo” (An account of my initial thoughts on the deep structure of ruxue). In Rujia sixiang de xiandai quanshi (Modern Interpretations of rujjia thought), edited by Li Minghui. Taipei: Zhongyang yanjiuyuan, Zhongguo wenzhe yanjiusuo choubeichu, 1997.

Lin, Delia and Susan Trevaskes. “Creating a Virtuous Leviathan: Te Party, Law, and Socialist Core Values.” Asian Journal of Law and Society 6 (2019): 41-66.

Liebman, Benjamin. “Legal Reform: China’s Law-Stability Paradox.”

Lo, Carlos W. H. “Deng Xiaoping’s Ideas on Law: China on the Treshold of a Legal Order. Asian Survey 32, no. 7 (July 1992): 649-665

Lu, Haitian. “State Channeling of Social Grievances: Teory and Evidence in China.” Hong Kong Law Journal 41, no. 2 (2011): 547-571.

Lubman, Stanley. Bird in a Cage: Legal Reform in China After Mao. Stanford: Stanford University Press, 1999.

MacCormack, Geoffrey. Te Spirit of Traditional Chinese Law. Athens: Te University of Georgia Press, 1996.

Mair, Victor H. “Language and Ideology in the Written Popularizations of of the Sacred Edict,” in Popular Culture in Late Imperial China, edited by David Johnson, Andrew J. Nathan, and Evelyn S. Rawski, 325-359. Berkeley: University of California Press, 1985.

Makeham, John. Lost Soul: “Confucianism” in Contemporary Chinese Academic Discourse. Cambridge: Harvard University Asia Center, 2008.

——— “Te Retrospective Creation of New Confucianism.” In New Confucianism: A Critical Examination. New York: Palgrave Macmillan, 2003. 115

Mao, Zedong. “On Contradiction” In Selected Works of Mao Tse-Tung, Vol. 1, 311-347. Beijing: Foreign Languages Press, 1967.

——— “On the Correct Handling of Contradictions among the People.” In Selected Works of Mao Tse-Tung, Vol. 5, 384-421. Beijing: Foreign Languages Press, 1977.

Messier, Werner. “China in Transition: New Intellectual Currents in the People’s Republic of China.” In China in Transition: Issues and Policies. London: Palgrave Macmillan, 1999.

Mezey, Naomi. “Law as Culture.” Te Yale Journal of Law & the Humanities 13 (2001): 35-67.

Ministry of Justice. “Guanyu jiaqiang renmin tiaojieyuan duiwu jianshe de yijian” (Opinions on Strengthening the Building of People’s Mediator Teams). April 27, 2018. http:// www.moj.gov.cn/government_public/content/2018-04/27/tzwj_18696.html.

——— “Renmin tiaojie gongzuo ruogan guiding” (Some Provisions Concerning the Work of People’s Mediation). September 26, 2002, http://www.moj.gov.cn/government_public/ content/2002-09/28/fggz_6212.html.

——— “Zhongguo tese renmin tiaojie zhidu de chuancheng fazhan” (Te Inheritance and Development of the People's Mediation System with Chinese Characteristics.” November 7, 2019. http://www.moj.gov.cn/news/content/2019-11/07/zlk_3235389.html.

——— “Zhonghua renmin gongheguo renmin tiaojie fa” (People’s Mediation Law). August 30, 2010. http://www.moj.gov.cn/Department/content/2010-08/30/592_201250.html.

Minzner, Carl. “China’s Turn Against Law.” Te American Journal of Comparative Law 59, no. 4 (Fall 2011): 935-984.

Palmer, Michael. “Te Revival of Mediation in the People’s Republic of China: (1) Extra-Judicial Mediation.” In Yearbook on Socialist Legal Systems, edited by W.E. Butler, 219-277. Dobbs Ferry, NY: Transnational Publishers, 1988.

Pan, Ming-te. “Confucianism and the Chinese Legal Tradition: Recent Scholarships on Chinese Legal History and Jurisprudence Studies.” Te Chinese Historical Review 11, no. 2 (Fall 2004): 223-241.

Peerenboom, Randall. “What’s Wrong with Chinese Rights?: Toward a Teory of Rights with Chinese Characteristics.” Harvard Human Rights Journal 6 (1993): 29-57.

Qian, Tian. “In Search of Social Life with ‘No Litigation’: A Case Study of People’s Mediation in Southeastern Chongqing.” Social Sciences in China 37, no. 2 (2016): 142-162.

Reed, Bradley W. “Money and Justice: Clerks, Runners, and the Magistrate's Court in Late Imperial Sichuan.” Modern China 21, no. 3 (July 1995): 345-382. 116

——— Talons and Teeth. Stanford: Stanford University Press, 2000.

Richman, Roger. “Civil Dispute Processing in China During Reform.” Journal on Dispute Resolution 7, no. 1 (1991): 83-113.

Rowe, William T. “Governance.” In China’s Last Empire: Te Great Qing. Cambridge: Harvard University Press, 2009.

——— “Violence in Ming-Qing China: An Overview.” Crime, History & Society 18, no. 2 (2014): 85-98.

Ruskola, Teemu. “Legal Orientalism.” Michigan Law Review 101, no. 1 (October 2002): 179-234.

“Shou jia hulianwang zhishi chanquan jiufen renmin tiaojie weiyuanhui chengli” (Te first people's mediation committee for Internet intellectual property disputes is established). Xinhuanet, July 20, 2018. http://www.xinhuanet.com/zgjx/2018-07/20/c_137337059.htm.

Simionato, Alice. “Te Manifesto of 1958: A Discourse on Confucian Rationalism.” Rivista di estetica 72 (2019): 125-138.

Song, Xianlin. “Reconstructing the Confucian Ideal in 1980s China: Te ‘Culture Craze’ and New Confucianism.” In New Confucianism: A Critical Examination. New York: Palgrave Macmillan, 2003.

Utter, Robert F. “Dispute Resolution in China.” Washington Law Review 62, no. 3 (July 1987): 383-396.

Van Der Sprinkel, Sybille. Legal Institutions in Manchu China: A Sociological Analysis. London: Te Athlone Press, 1962.

Wang, Hui. “Contemporary Chinese Tought and the Question of Modernity.” Social Text no. 55 (1998): 9-55.

Wang, Jing. High Culture Fever: Politics, Aesthetics, and Ideology in Deng’s China. Berkeley: University of California Press, 1996.

Wang, Linghao and Lawrence B. Solum, “Confucian Virtue Jurisprudence,” in Law, Virtue, and Justice, edited by Amalia Amaya and Ho Hock Lai, 105-134. Oxford: Hart Publishing, 2012.

Wang, Xinfang. “Xin shiqi qunzhong luxian sifa jiazhi de fajue, sikao yu shijian,” Renmin sifa 7 (2012): 80-82.

Weber, Max. Te Religion of China: Confucianism and Taoism. New York: Te Macmillan Company, 1951. 117

Wong, Bobby K.Y. “Traditional Chinese Philosophy and Dispute Resolution.” Hong Kong Law Journal 30, no. 2 (2000): 304-319.

Woo, Margaret Y. “Bounded Legality: China’s Developmental State and Civil Dispute Resolution,” Maryland Journal of International Law 27 (2013): 235-262.

Wu, Yuning. “People’s Mediation Enters the 21st Century.” Journal of Comparative Law 10, no. 2 (2015): 25-43.

——— “People’s Mediation in China.” In Te Routledge Handbook of Chinese Criminology, edited by Liqun Cao, et al. New York: Routledge, 2013.

Yang, Martin C.K. A Chinese village: Taitou, Shantung Province. New York: Columbia University Press, 1945.

Zelin, Madeleine. “Te Rights of Tenants in Mid-Qing Sichuan: A Study of Land-Related Lawsuits in the Baxian Archives.” Te Journal of Asian Studies 45, no. 3 (May 1986): 499-526.

Zhang, Honwei. “Revising People’s Mediation in China: practice, performance and challenges.” Restorative Justice: An International Journal 1, no. 2 (2013): 244-267.

Zhang, Jinfan. Te Tradition and Modern Transition of Chinese Law. Berlin: Springer Science & Business Media, 2014.

Zhang, Xudong. “On Some Motifs in the Chinese ‘Cultural Fever’ of the Late 1980s: Social Change, Ideology, and Teory.” Social Text 39 (Summer 1994): 129-156.

Zhao, Dingxin. Te Confucian-Legalist State: A New Teory of Chinese History. Oxford: Oxford University Press, 2015.

Zheng Hangsheng and Huang Jialiang. “On the Crisis of Legitimacy of the People’s Mediation System in Modern Society and Its Remodeling: A Sociological Analysis Based on Field Investigations of Urban Communities in Shenzhen.” Tinking (Sixiang Zhanxian) 34, no. 6 (2008): 6-12.

Zeng, Xianyi. “Mediation in China — Past and Present.” Asia Pacific Law Review 17, no. Special on Mediation (2009): 1-30.