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Bargaining in the Shadow of the Community: Neighborly Dispute Resolution in Beijing Hutongs

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Bargaining in the Shadow of the Community: Neighborly Dispute Resolution in Beijing Hutongs . Bargaining in the Shadow of the Community: Neighborly Dispute Resolution in Beijing Hutongs HAINI Guo & BRADLEY KLEIN* I. INTRODUCTION ................................................................................... 826 II. BACKGROUND ON THE HUTONG RESIDENTIAL ENVIRONMENT .......... 829 A. From "Siheyuan" to "Dazayuan ": A BriefHistory ofBeiing H utongs ........................................................................................ 829 B. Social and SpatialIntimacy: Hutongs as Residential Environments Today ............................................................................................ 838 C. Standing at the Crossroads: The Importance of the Timing of This S tudy ............................................................................................. 843 III. RESEARCH M ETHODS ........................................................................ 844 IV. THE THREE-TIERED HUTONG DISPUTE RESOLUTION REGIME ......... 847 A. InstitutionalScaling and the Basic Menu ofDispute Resolution Op tions ......................................................................................... 847 B. Non-Legalistic Public Authorities I: The Residents' Committees ("Juw ei Hui') ............................................................................... 852 C. Non-Legalistic Public Authorities II: NeighborhoodPolice ("Pianer Jing ') ............................................................................. 860 V. THE PRIMACY OF NORMS IN HUTONG DISPUTE RESOLUTION ........... 866 VI. WHY NORMS?: COST-BENEFIT ANALYSIS AND THE CHOICE BETWEEN NORM S AND LAW ............................................................. 871 A. Time, Money, Uncertainty, and Social Disruption:The Many Costs of Formal Legal Solutions .................................................. 872 B. Where Social Ties End: The Domain of FormalRules (andLaw) in H utong L ife .............................................................................. 881 C. Predictability,Best Practices,and Socially Constructive "Voice ": The Advantages of Mediated Solutions ........................................ 885 VII. MAKING MEDIATED SOLUTIONS STICK: REPRISALS, STATUS, SHAME, GIFTS, AND OTHER INFORMAL SOCIAL ENFORCEMENT M ECHANISM S ................................................................................... 890 Both authors received their J.D.s from the Yale Law School in 2004. We would like to extend our heartfelt thanks to Paul Gewirtz, Jamie Horsley, Jonathan Hecht, Suzanne Yueh, and all the other people at the Yale China Law Center who made this project possible. We would also like to acknowledge Liang Lihua, Liu Xiaoyan, Zhuang Shuo, Wu Bo, and the many other friends who provided us with invaluable assistance in our field research-we could not have completed this project without you. Finally, a special note of thanks is also due to Professor Robert Ellickson, whose guidance and input helped both authors immeasurably. 825 OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 20:3 20051 VIII. A LOOK AHEAD: THE IMPLICATIONS OF LEGAL REFORM, URBAN DEVELOPMENT, AND SOCIAL CHANGE .............................. 899 IX . SUM M AR Y .......................................................................................... 907 I. INTRODUCTION For more than a decade now, scholars from several academic disciplines have been preoccupied with examining the role of informal social norms-as contrasted with formal law-in coordinating social behavior, determining individual entitlements, and guiding dispute resolution efforts. It has been found that extralegal norms determine individual entitlements in cattle- trespass disputes between neighbors in rural California ranching communities,1 govern contractual relationships in the New York diamond industry,2 structure individual obligations under collective pollination regimes among Washington orchard owners,3 settle disputes over karaoke noise pollution,4 and guide the operations of Japan's National Sumo Association. 5 Other studies have suggested that extralegal norms are also instrumental to groundwater distribution regimes, 6 the exercise of voting rights, 7 conflict management between neighbors in urban America, 8 the prevalence of smoking and certain sexual behaviors, 9 and other macro-level socio-political phenomena. Most of these studies have confirmed the relevance-indeed the primacy-of informal social norms in determining See generally ROBERT C. ELLICKSON, ORDER WiTHOUT LAW: How NEIGHBORS SETTLE DISPUTES (1991) (using cattlemen in Shasta County, California, to illustrate that members of a close-knit group can develop informal norms that are utilitarian). 2 Lisa Bernstein, Opting Out of the Legal System: Extralegal ContractualRelations in the DiamondIndustry, 21 J. LEGAL STUD. 115, 130-43 (1992). 3 Steven N.S. Cheung, The Fable of the Bees: An Economic Investigation, 16 J.L. & EcoN. 11, 30 (1973). 4 Mark D. West, The Resolution of Karaoke Disputes: The Calculus of Institutions and Social Capital,28 J. JAPANESE STuD. 301, 303-06 (2002). 5 Mark D. West, Legal Rules and Social Norms in Japan'sSecret World of Sumo, 26 J. LEGAL STUD. 165,200-01 (1997). 6 ELINOR OSTROM ET AL., RULES, GAMES, AND COMMON POOL RESOURCES 283-300 (1994). 7 Richard L. Hasen, Voting Without Law?, 144 U. PA. L. REv. 2135, 2151-64 (1996). 8 Sally Engle Merry, Going to Court: Strategies of Dispute Management in an American Urban Neighborhood, 13 LAw & Soc'Y REv. 891, 899-908 (1979). 9 Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REv. 903, 930-47 (1996). 826 BEIJING HUTONGS individual entitlements and resolving disputes. Yet all of these prior pieces of scholarship have focused on disputes in societies characterized by a developed economy, a more or less robust, independent set of legal institutions, and a liberal democratic political system. This study aims at adding a needed perspective to the existing literature by examining dispute resolution practices in a far different environment: the traditional neighborhoods' ° of urban China. Unlike the environments examined in prior studies, Hutong neighborhoods are economically underdeveloped and subject to an institutionally deficient legal system, a non-democratic political regime, and a distinctly illiberal post-war cultural experience. The extent which dispute resolution practices in ancient Beijing Hutong neighborhoods track those prevalent in the modem Western world has great implications for the law and society literature of the last decade. Are the norm-based systems documented over the last ten years a truly universal human phenomenon, or are they a more distinct product of practices and intuitions unique to developed liberal market societies? Are there unique practices or institutional arrangements in radically dissimilar cultural settings that can help enrich-and place in proper perspective--our understanding of more familiar dispute resolution mechanisms? Are there valuable lessons that we in Western academia can learn? In fact, our research did reveal that residents of Beijing Hutongs rely primarily on informal social norms in determining individual entitlements and resolving disputes among themselves. Private bargaining between individuals according to community social norms is the default option for residents who have grievances against their neighbors. Recourse to formal legal channels is viewed as too costly, socially disruptive, and unpredictable to be an efficient option in all but the most serious disputes. In these respects, our findings corroborate the general thrust of recent law and society scholarship on dispute resolution in more developed countries. The main point of divergence in general orientation is the Hutong residents' view of formal legal institutions as fundamentally unpredictable and untrustworthy, as opposed to simply too expensive. This finding derives directly from the underdeveloped nature of the Chinese legal system and thus may be common to dispute resolution regimes across the developing world. Yet, even within this familiar norm-based orientation, novelties emerge as Hutong communities use some unique institutional arrangements to manage norm-based dispute resolution. When disputes between neighbors prove intractable, Hutong residents engage in a set of unique, middle 10 See infra discussion Parts II.A, II.B (providing a full description of Hutongs as residential environments). 827 OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 20:3 20051 institutions we term "non-legalistic public authorities." Comprised of the local Residents' Committees and specialized Neighborhood Police, these institutions lie somewhere between the domains of formal law and informal social norms. They are institutions expressly tied to the community that act as neutral mediators for Hutong residents. They are commissioned by the Beijing municipal government and they receive salaries from public funds, but they do not apply formal legal rules in mediating disputes and they have no coercive or punitive powers. Instead, they act as specialized custodians of community social norms, resolving disputes as those norms dictate, and relying on the community's collective informal sanctioning of intransigents to enforce their mediated solutions. Through these institutions, Hutong residents benefit from the cost, flexibility, and convenience advantages of norm-based solutions while also securing some of the benefits of institutional specialization and standardization. While simultaneously providing some standardization, consistency, and predictability in the mediation
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