by Shitong Qiao, Zhiyu Li and Benjamin Chen
In their article How Will Technology Change the Face of Chinese Justice? (Columbia Journal of Asian Law, 2020), Professor Zhiyu Li of Durham Law School and Professor Benjamin Chen of the University of Hong Kong examine China’s aggressive efforts to technologize court processes and how the Chinese public and litigants view those efforts. Based on an original survey of roughly 1,000 netizens and interviews of over 100 legal aid seekers, the authors find that internet and artificial intelligence technologies are helping Chinese courts address case backlogs and improve efficiency and giving litigants more cost-effective options for settling disputes. But, the authors note, technology also may be sidelining the lawyers and legal activists who can identify systemic problems and challenge the “ideological hegemony of the state,” leading to a new “Chinese brand of authoritarian legality.”
The following is a Q&A with Li and Chen, led by Professor Shitong Qiao of Duke Law School, about the study’s findings and the idea that court technology is reshaping the face of justice in China.
Shitong Qiao: Firstly, congratulations on this wonderful paper. It’s an important topic. For the benefit of our readers, can you tell us in a nutshell about your basic argument — how will technology change the face of Chinese justice?
Benjamin Chen: China is one of the jurisdictions that has really been pushing the use of technology in courts. When we first became interested in this phenomenon, it had already been going on for some time, and many others had written on the subject. But we thought that the then-current contributions to the subject were still quite limited. Many of them tended to focus on a particular application of technology, such as the use of blockchain for storing evidence or the use of automated transcription systems. We wanted to look beyond specific applications and consider why technology is being introduced at such a pace in the Chinese legal system, and to what ends?
So, when we think about how technology will change the face of Chinese justice, the question we first ask is what problems or needs are the technological innovations responding to? Once we have some idea of what they are responding to, we can try to broach the question of whether or not they are going to be successful. In the article, we lay out three tensions in the Chinese legal system which technology could help alleviate. First, Chinese courts are inundated by millions of cases, and a primary cause of that is the move towards legality. There’s a deliberate shift away from political dispute resolution mechanisms like 信访(letters and visits) toward the judicial process, and that has resulted in a sharp rise in court caseloads. But related to this move toward legality is the professionalization of the judiciary. In the past, anyone could be a judge. But not anymore. The quota judge reform drastically reduced the number of court officials who could serve as adjudicators. That means an explosion in the average number of cases that each judge has to handle. So an important reason why certain kinds of technologies are being introduced is to help judges decide cases more quickly and efficiently. This reason is familiar to everyone.
Another tension we identify is the one between adherence to rule of law and social harmony. China descended into chaos during the Cultural Revolution. Traditional rules and institutions all came under attack. After the Cultural Revolution, the legal system had to be rebuilt. Deng Xiaoping called for the rule of law. Of course, rule of law as it’s espoused in China does not coincide with Western, liberal democratic conceptions of the rule of law — but the idea very broadly speaking is that there were going to be certain general rules of conduct governing private and public conduct, and this would restore stability and order to society... Click here to read the full text.
Shitong Qiao is Professor of Law and the Ken Young-Gak Yun and Jinah Park Yun Research Scholar at Duke Law School. Zhiyu Li is an Assistant Professor in Law and Policy at the Durham Law School. Benjamin Chen is an Assistant Professor of Law at the University of Hong Kong.