Judicial Lawmaking and the Influence of Comparative Law
Studies in Comparative Law and Legal Culture series
Edited by John O. Haley and Toshiko Takenaka
Chapter 3.3: Civil procedure and anti-modern myths in the “Harmonious Society”: China and pre-war Japan compared
In some areas of law, such as patent, the judiciary in China plays important roles in filling in the gaps in statutory language, thus making necessary policy decisions just like its counterparts in Japan, Korea, and Taiwan. In many other areas of social life in China today, however, the judiciary’s function is strikingly different. For example, in environmental pollution disputes, labor disputes, village governance, land taking and property disputes, etc., there emerges a movement to push for mediation under the slogan of “harmonious society.” The real function of the mediation campaigns in China today, however, is to deprive citizens of their legal rights in formal law. “Harmony,” often justified as a cultural preference, is in reality often forced upon citizens from above. In other words, cultural assertion of “harmony” is a discursive technique deployed by the ruling elites to suppress resistance and safeguard the status quo. In the United States, early studies of China’s mediation were conducted in the 1960s through interviews with refugees fleeing Mao’s China, so no one was under any illusion in regard to China’s mediation. Nor are contemporary observers impressed by the campaigns in the name of “harmonious society” in China today. Indeed, Professor Vai Io Lo’s chapter in this edited volume is a good example of this growing body of literature that provides insightful critiques of mediation. Curiously, despite some limited efforts to introduce a comparative perspective, current literature tends to treat mediation campaigns as a Chinese phenomenon, thus isolating it from similar experiences in other societies.
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