Rights protection and justice in contemporary China
This thesis examines practices of dispute resolution and conceptions of justice internal to China, in order to understand the potential role of rights in the Chinese legal system. While rights assertion, defence and protection can only occur alongside dispute resolution practices already entrenched in China, they could also transform these Chinese practices, by encouraging a more tolerant attitude to public disagreement in dispute resolution. A tradition of authoritarian supervision and control of officials is currently weakening the ability of Chinese courts to protect rights and to conduct principled argument about justice. Chinese culture has partly accommodated this supervisionist tradition by the practices of remonstration with government, and mediation of civil and other disputes. But these latter practices also support attitudes opposing injustice and unjustified rule. It is argued that rights-assertive and empathetic attitudes are consistent and fundamentally connected. It may be right not to insist on what is due to oneself, and to seek conciliation. Yet when rights are asserted, they must be taken seriously. To take them seriously, sustained public disagreement about law and justice must be allowed. As Chinese people are now increasingly rights-assertive, courts more often oppose the supervisionist tradition, by engaging in controversial legal argument and occasionally by adjudicating on the basis of constitutional rights and principles. This could help to correct some of the injustices done to the large and growing Chinese underclass, especially as remonstration mechanisms are failing. The Chinese example supports the conclusion that legal systems in transition are not best served by a 'thin' version of rule of law, but instead need a strong constitutional legal practice. This illustrates that law should not be defined by its claim to authority but by its function to serve justice.