Peter A Allard School of Law

CALS: Fairness Beyond Law: How Contemporary Chinese Courts Smooth Financial Loss and Repair Emotional Rupture (with Benjamin Liebman, Columbia Law)

Most writing on Chinese courts tells a story of courts that seek to apply the law except when political obligations to maintain stability or protect economic interests push them to other outcomes. In this Essay, we draw on a dataset of 42 million Chinese court cases to argue that this focus on political control overlooks a key function of Chinese courts: their smoothing role. In a wide range of cases, courts pursue equitable outcomes that seek to mitigate economic and emotional loss and restore and preserve relationships. Courts pursue this goal both within and beyond the boundaries of formal law, typically by imposing costs on parties with ethical, but not legal, obligations to the victims. Sometimes, courts cite broad fairness provisions in Chinese law, or adopt pro-plaintiff interpretations of existing legal rules. And sometimes, courts clearly act beyond the written law. Chinese courts, in short, try to deliver substantive justice within the constraints of the remedies available. In so doing, they uphold social order by ensuring those who have suffered losses are compensated, family and neighborly ties are preserved, and emotional harm is acknowledged.

 

rachel stern

Rachel E. Stern is a Professor of Law and Political Science and currently holds the Pamela P. Fong and Family Distinguished Chair in China Studies. She is the author of Environmental Litigation in China (Cambridge University Press), as well as numerous articles on legal mobilization and lawyers in contemporary China. This paper is part of a collaborative effort to analyze the 60+ million Chinese judicial decisions placed online following a 2014 policy change

 


  • Centre for Asian Legal Studies
  • General Audience
Peter A. Allard School of Law UBC Crest The official logo of the University of British Columbia. Urgent Message An exclamation mark in a speech bubble. Arrow An arrow indicating direction. Caret A month-view page from a calendar. Caret An arrowhead indicating direction. Contact A page from a rolodex. Facebook The logo for the Facebook social media service. Information The letter 'i' in a circle. Instagram The logo for the Instagram social media service. Instagram An arrow exiting a rectangle. Linkedin The logo for the LinkedIn social media service. Mail An envelope. Minus A minus sign. Telephone An antique telephone. Play A media play button. Plus A plus symbol indicating more or the ability to add. Rss The logo for the Reddit social media service. Rss A symbol with radiating bars indicating an RSS feed. Search A magnifying glass. Twitter The logo for the Twitter social media service. Youtube The logo for the YouTube video sharing service.