Mobilizing the Law in China: “Informed Disenchantment” and the Development of Legal Consciousness, Mary E. Gallagher
In her study of urban Chinese workers, Mary E. Gallagher found that the complicated result of mobilizing state labor laws was “informed disenchantment,” a manifestation of legal consciousness that embodied efficacious feelings about the law accompanied with disappointment and frustration with the inequities and dysfunction of China's legal system.
Based on sixteen months of research at a legal aid center and in-depth interviews with plaintiffs, Gallagher observed that workers entered the formal legal process with high expectations about the possibility of protecting their rights while possessing only a vague knowledge of legal procedure and their actual codified rights. Through the process of legal mobilization, the workers increased their individual efficacy and competency but at the same time felt more than ever that the legal system was unfair and ineffective.Informed disenchantment of these legal aid plaintiffs is captured in three separate realms of the legal mobilization process: the acquisition of strategic knowledge, feelings of inclusion into a social network, and the post-dispute impulse to become a “little expert” - to transmit one's knowledge and experiences to friends and family. While many plaintiffs were frustrated and angry, disappointed with many aspects of the process, nearly all respondents emerged from the process with a much stronger sense of their legal rights and a more strategic and realistic view of the legal process. They had, in effect, learned how to play the state's new game. What is perhaps most surprising is that despite the heightened feelings of disappointment and cynicism, the vast majority of the plaintiffs were willing to play the game again should they experience another employment dispute.
Acquiring Strategic Knowledge
Most legal aid plaintiffs came to the process with a strong but vague sense that their rights had been violated.
Exposed to the campaign slogans of labor law dissemination and media coverage that tended to highlight successful cases, they came to the process with a strong sense of their rights but little exact knowledge about how those rights would be protected or reclaimed in the legal process. In the cases of many older workers from the state sector, they even believed (erroneously) that the law would prevent their termination or layoff from the company that had employed them for several decades. While some of the high expectations of workers are caused by the way in which rule of law is transmitted in China, in some cases, as with these workers from the217 state sector, high expectations are related to a sense of confusion over what the legal responsibilities of employers are. In a time of transition from an “iron rice bowl” system of employment, it is not surprising that many older workers tended to believe that they would be grandfathered into the old system. But this was not the case; China's labor laws do not guarantee anyone permanent employment, and China has significantly rolled back the legal responsibilities of employers.
The acquisition of new and deeper knowledge is a key aspect of the legal mobilization process, building increased feelings of efficacy, competency, and disappointment that the law does not always work as it should. In one plaintiffs interpretation, legal aid provided the “words” that the plaintiff needed to know in order to speak in a legal venue. It provided a new vocabulary. For most respondents, the most important aspects of their newly attained knowledge were in the realm of understanding laws and regulations, understanding legal procedure, and understanding how to attain and use evidence. [...]
[...] A healthy sense of cynicism and disappointment with the law was common among the plaintiffs as they went through the legal process and discovered it to be more complicated than they expected and more advantageous to employers with their wealth of legal experience, their ability to hire skilled lawyers, and their importance as employers and investors in the local economy.
The vast majority of plaintiffs reported, however, that they would sue again if they encountered another employment dispute, and for many this extended to other types of disputes as well. Eighty percent of all plaintiffs reported that they would sue again if they encountered another employment dispute. This tendency was not significantly affected by the outcome of the case-those who lost were almost as likely to want to sue again as those who won (88% versus 100%). However, in the cases in which the judgment had not been implemented, only 40% of the plaintiffs reported that they would sue again. This lower figure for cases with unimplemented judgments shows that the plaintiffs rejection of the legal system is far more likely when the process fails than when it produces a judgment that is not in the plaintiff s favor [table omitted].This ability to distinguish between the legal process and out-come accords with an instrumental approach to the law as a game in which the plaintiff understands that the outcome depends on how the battle is waged, not on the moral positions of the two sides. [...] The high rate of positive response regarding future disputes was unexpected and did not match the tenor of the interviews, in which the plaintiff tended to dwell on the difficulties of and barriers to attaining just outcomes. But this gap between attitudes and response rates regarding present and future behavior is not unusual in a context where legal options are pushed by the state while alternative paths, such as petitioning, are narrowing. As Hendley notes in the Russia case, “[a] sense of resignation about the legal system consistently infused my interviews with managers. This hopelessness did not correlate with litigation behavior. In other words, apathy regarding law and high levels of litigation can co-exist.”
Finding Social Networks of Support
Workers who sue remain concerned about their social status and their public reputation and often will try to hide the fact of their lawsuit from their neighbors, friends, and even close relatives.
This reticence speaks to the continuing belief as reported by Du, an old worker who was left with nothing when his state-owned enterprise was acquired, that “only bad people file suits.” Others are embarrassed that they were fired or laid off, believing that it will seem to everyone else that they must have done something wrong. The frequency with which these sentiments are expressed indicates the level of social and psychological barriers to legal mobilization. Most people decide to sue because they have no other choice, having exhausted the other options of negotiation or because their employer has rejected outright any chance at negotiation or reconsideration.Legal mobilization through legal aid can mitigate plaintiffs' feelings of isolation and embarrassment by providing a social network and a fixed space through which plaintiffs can interact with each other, student volunteers, and legal aid staff. Many plaintiffs reported hearing about a new strategy or a relevant regulation while waiting in line at the legal aid center. Some workers find that their cases are similar, form a relationship, and help each other with their suits. Others realize by listening to the complaints and problems of those around them that their own grievance is part of a broader systematic trend. This reduces feelings of self-blame and embarrassment and can embolden plaintiffs to link their problems to broader political challenges, such as the lack of an effective organization to represent workers and the emphasis that local governments place on the “investment climate,” which often trumps the protection of workers' rights. A young worker was struck at how serious the problems were of the older people crowded around him. “I thought if [the director of the center] can help these people, then surely he should be able to win my case.”
Inclusion into a space and network such as legal aid can be an empowering experience for people who are otherwise discouraged, angry, and often deeply depressed.
Li, the injured engineer, believed he “went from being someone with a future to something that wasn't even human.” For people who have been laid off, summarily dismissed, or otherwise pushed out of their workplace, legal aid becomes the “turning point” from an experience in passive humiliation to an aggressive battle for rights and economic security. Ying, a young woman from rural Jiangxi Province who had to sue her employer twice (the second time on her own), reported,[a]s an outsider, who didn't know anyone in Shanghai, law was my only choice. I never thought about “letters and visits.” Of course no one would have paid the slightest attention to me... this strengthened my personality; nobody can just take away what is mine. I used to just give up. I sued the second time because I had the time and the experience. [...]
Post-Dispute Activism: Becoming a Little Expert
This new sense of empowerment among plaintiffs (even while remaining deeply angry with the results of the process) leads many into post-dispute roles as “little experts.” Their newfound expertise in labor law leads many to give advice, copy materials, introduce friends to legal aid, and even serve as witnesses or citizen representatives in the cases of other aggrieved workers. As with the propensity to sue again, post-dispute little experts are the norm, not the exception. more than three-quarters of the plaintiffs re-ported that in the post-dispute period they advised friends and family, introduced others to legal aid, and in some cases served as witnesses for other aggrieved workers. [table omitted] A female forklift operator who reported crying all the time during her lawsuit now assists with her relative's own worker compensation case and coined the phrase I use in this article: “My husband's brother-in-law now has a worker compensation case, I helped him with the case at first and then introduced him to the center... Now everyone comes to consult me, I've become a little expert.” [...]
Old Du, whose case remained up in the air without final implementation, summed up his experience in a way that captures the common path of a plaintiff from passivity, to knowledge, to strategy, and to anger:
I didn't know a single thing about the labor law [before this].
During Mao's time, everything was handled for us, like children. I used to think that only bad people file suit, now I know every-thing... arbitration, first appeal, second appeal. I'm famous. People ask me for interviews. [After the TV program] my phone started ringing off the hook, didn't stop ringing for a week, all these old workers wanting to know about my case and to resolve their own problems. An old worker from Bayer waited outside my door to talk to me. I gave him some advice and then later served as his witness in court on the question of job transfers in SOEs. I am so angry and frustrated. I didn't use to be like this. My poor parents at home. They are over 80 years old!! I'll do anything to help these kinds of cases.5.10