Muslim Mandarins in Chinese Courts: Dispute Resolution, Islamic Law, and the Secular State in Northwest China, Matthew S. Erie

Do democratic and authoritarian states differ in their approach to legal pluralism? The answer to this question is not obvious, as we saw in the previous reading by Strating and Edmondson on accused witch killings in Timor Leste.

When it comes to authoritarian states, the picture is no clearer. In the following article, Matthew S. Erie examines the legal pluralism policies of the People's Republic of China, particularly as they pertain to the ro.6 million Chinese Muslims (known as the Hui). As this case study demonstrates, authoritarian regimes do not necessarily adopt strict policies of proscription when it comes to non-state legal orders, such as Islamic law among the Hui. To the contrary, the PRC has explicitly recognized some of the legal traditions of its minority populations. During his ethnographic fieldwork in Northwest China, Erie interviewed local officials, Muslim “mandarins,” and others to understand how state law integrates Muslim authority figures and normative orders, particularly through officially recognized People's Mediation Committees, thus making legal pluralism an important principle of state law. In the process, as Erie demonstrates, state law is modified and “plural- ized,” but at the same time Islamic law is inevitably transformed as it becomes part of the official legal regime.

Governing pluralism

One of the defining features of the Chinese legal culture is the presence of multiple sources of law and authorities that coexist or compete with state law. China's extreme pluralism is a result of the diversity of communities, distin­guished by faith, ethnicity, lineage, profession, and geography, which are subsumed within the modern nation-state. The rules that regulate behavior in these communities cannot be reduced to law. Ethical, moral, and custom­ary rights and obligations interact with formal law in a number of settings, whether familial, commercial, or penal. Some of these sources are law, however, which I define, following Brian Tamanaha, subjectively. Hui, for instance, call Islamic law jiaofa, meaning “law of the teaching” or “religious law,” and follow its rules for both social relations and devotional matters.

The PRC has responded to pluralism by taking a bifurcated approach to the formal recognition of nonstate procedures and substantive nonstate law as applied to minorities who both practice transnational religions and inhabit sensitive borders areas (e.g., Hui, Uyghur, Tibetans, and Mongolians). This approach affects the institutional design of dispute resolution mechanisms. On the one hand, the Constitution of the PRC and a number of religious regulations guarantee freedom of religion. Clerics have rights under these regulations, and official recognition has implications for the party-state's collaboration with clerics, as I discuss below.

On the other hand, the secular state dissociates religion from religious law. PRC law does not officially recognize religious law or the legal systems of ethnic minorities. PRC civil procedure law and conflicts of law exclude mention of religious law. Unlike US law, for instance, which recognizes Islamic law as foreign law, PRC legislation concerning choice of law remains in its infancy. The demarcation of religious and state authority is particularly fraught with secular anxieties in the postsocialist context.

Official PRC discourse omits discussion of Islamic law, but state law does allow for the limited recognition of the category Hui customary law (Huizu xiguanfa), an ethnicized and depoliticized concept, as interpreted by Marxism-Leninism. Customary law is the term applied to the law of each of China's fifty-five ethnic minorities. Whereas minorities in southeastern China have codified their customary law, and whereas people's courts in Amdo Tibet (i.e., Qinghai, Sichuan, and parts of Gansu and the Tibetan Autonomous Region) may refer to Tibetan customary law in making decisions, the Hui have been unable either to codify their law or to enforce it in the courts. Though Hui customary law is referred to in official and academic sources, it is limited primarily to ritualistic matters, including dietary law, prayer, and ablutions. It largely excludes the body of Islamic law on social relations (mu’amalat). Only in recent years have PRC scholars begun writing about Islamic law, although most such treatments apply to Islamic law outside of China.

In addition to the state's relegation of Islamic law to customary law, the party-state established regional ethnic autonomy jurisdictions in the early r950s that ostensibly permitted minorities residing therein to adjust national legislation to local circumstances. In practice, however, the people's con­gresses of autonomous regions (ARs) are legislative doldrums. Although two of the five ARs have significant Muslim populations (i.e., the XUAR and the NHAR), they have limited capacity to enact laws in accordance with Islamic law. Whereas relevant laws empower the legislative bodies of autonomous region governments to enact both autonomous regulations (zizhi tiaoli) and individual regulations (danxing tiaoli), to date, autonomous regions have not enacted a single autonomous regulation. [...]

[The article goes on to discuss state-sponsored mediation practices, in which Muslim mandarins - such as clerics, leaders, and elders - play a prominent role.

THE INFORMALIZATION OF ADJUDICATION

Whereas sociolegal studies have theorized the state's integration of informal law and ADR, they have given less attention to the effects of such integration on the formal legal system itself. The case of Islamic law under party-state governance provides an inroad to addressing this question. In addition to the formalization of mediation, another type of collaboration between Muslim mandarins and their counterparts in the local party-state is what I call the informalization of adjudication. This type of collaboration, most prominent in Linxia but apparent also in other areas of Gansu and Qinghai, points to the primacy of personalistic ties between judges and Muslim mandarins over formal law. If, during adjudication, a Hui litigant makes an oral argument based on Islamic law that is integral to the matter under dispute or uses Islamic law as a basis of evidence (e.g., a wife arguing that because she and her husband had an Islamic marriage contract, they were validly married under Islamic law), a state judge may turn the case over to a Muslim mandarin. This process, which operates in the gray area of PRC procedural law, both results from existing social networks and further informalizes the judiciary.

In Hui communities, when disputes arise between family members or neighbors, they often seek mediation by a Muslim mandarin who applies Islamic law, but sometimes they go to the neighborhood office that has government-appointed mediators who apply state law.

A young cleric I shall name Nasim receives many of these cases. The process by which Nasim became a Muslim mandarin illustrates the informa­lization of adjudication. Nasim's knowledge of Islamic law and his personal charisma stem from both his own lineage (he is a third-generation cleric) and his study abroad. Upon returning to Linxia from Saudi Arabia in the 1990s, through sermons and mediating disputes, he began teaching his mosque community the importance of following Islamic law. Over the years, he gained a reputation as an expert in Islamic law that has spilled over into official arenas so that the local government took notice of his standing in the community. The provincial traffic police hired him as a supervisor. Whereas other clerics in Linxia are hired by different public security and judicial organs on a temporary basis, Nasim's role is permanent, and he proudly shows a license proving his official status.

Officially, his expertise is limited to advising the provincial traffic police on vehicular accidents, but representatives from a variety of bureaus come to the mosque to consult him on matters touching on Islamic law that they encoun­ter in their work. In return, Nasim, who is never paid for his services, has acquired a reputation as a resource for the party-state's bureaucrats along with other benefits, such as having his mosque selected for a visit by high-ranking party leaders.

I may come across issues relating to inheritance, marriage, and divorce. The procedure of referring a case back down to the local religious authority is, in fact, illegal. The case should not be taken out of the state venue. Once the complaint is lodged there, it should be decided by that authority. This has been going on for many years. Official PRC court decisions will not only exclude any mention of religious law, but there will be no instances of even remnants of Islamic law in decisions, or references of any kind, however vague.

Here there is a direct conflict between informal and formal law. Nasim characterizes as unlawful the use of a cleric as temporary judicial mediator, but the cleric is used despite the law's prohibition. Article 95 of the 20r2 amended PRC Civil Procedure Law allows a court to invite (yaoqing) a governmental unit or individual to assist (xiezhu) with mediation. Though it is unclear whether a cleric can be considered an individual, the statute indicates that the court is still in charge of the mediation.

Furthermore, according to Article 33 of the 20r0 Mediation Law, the relevant people's court may review the agreement that results from mediation by a PMC. Judicial oversight does not occur in the informalization of adjudi­cation, however. Rather, the Muslim mandarin takes over the case. Nor do Muslim mandarins draft a mediation agreement; the entire process circum­vents any recording. Complicating the notions of the authorities' “legaliza­tion” of interpersonal and wider social conflicts, the referral of cases to religious specialists shows the dramaturgical purpose of law. Law provides a veneer for the thick personalistic ties that otherwise blur the divide between official and unofficial legal venues.

The informalization of adjudication is characterized by relationships between the Hui elite and government officials that are marked by discretion rather than transparency or official record. The work of mediating disputes is done “backstage,” to use Erving Goffman's apt phrase. The “back room,” not the courts, is often the site for brokering power between stakeholders. As Ling Li has written, “[m]ore seems to take place behind courtrooms than in them in litigation in China.” Meanwhile, the courtroom is the venue for the public performance of the law. In this sense, the formal legal institutions of secular rule of law are dependent on the informal authority of Muslim mandarins and their capacity to mediate in accordance with Islamic law.

Although the informalization of adjudication cannot be officially recog­nized, it is an open secret, a conspicuous indirection. Within this arrange­ment, Nasim seeks to educate his mosque community and others about Islamic law. Linxia Muslims of all teaching schools come to his quarters to ask him to mediate problems. Thus, since secular law and its institutions depend on Islamic authority, Muslim mandarins use the social capital con­ferred through such delegations to spread Islamic law consciousness.

Nasim's visibility to both Muslim followers and officials (overlapping pools of clients) brings with it no small degree of danger. He whispers:

The CCP cannot know that I am explaining Qur'anic law to members of my mosque. And it's not even enforcing Qur'anic law, but merely explain­ing it. Much of Qur'anic law is at odds with state law. If they knew I was doing this, they would say I was interfering with the judiciary.

From the view of the party-state, Nasim can work only to put disputants back on a course where they can negotiate their own problem. In this, his work parallels that of a qadi, the crucial difference being that clerics cannot enforce the law. Consequently, Islamic law operates here not through implementing institutions, but through continual education, instruction, sermon, and prayer.

As many commentators have observed, weak courts remain the Achilles heel of legal reform in the PRC. Most critics point to the CCP's oversight of people's courts as invalidating their independence. Courts have another set of relationships, specifically, their reliance on local authority figures to mediate claims. As a normative point, although such relationships deviate from Western rule of law prescriptions, it is arguable whether such reliance is a weakness or a strength. Indeed, scholars have analyzed connections between the CCP, lawyers, and judges as political embeddedness. Such social connec­tions have generally been viewed as a net good, as a resource and means of protection for lawyers. So, too, do Muslim mandarins accrue benefits from collaborating with local officials.

However, Muslim mandarins must be wary of being perceived as too close to cadres and thereby losing credibility in the eyes of nonelite Hui. In serving two masters - the followers of the Prophet and the members of the party - they must toe a line that is continually shifting. [...] The potential for violence percolates beneath collaborations, creating suspicion of both Muslim manda­rins and their official counterparts. The ability of Muslim mandarins to straddle the demands of the party-state and those of their communities is even more precarious among Uyghurs. For instance, on July 30, 2014, Juma Tahir, the imam of the largest mosque in the XUAR and head of the Kashgar Islamic Association, was stabbed to death allegedly by radicalized Uyghur teenagers who believed the imam owed loyalty more to Beijing than to his own people.

Though partnering with cadres may benefit Muslim mandarins, their collaboration with the party-state, through political embeddedness, may actu­ally work as a means of government control. The informalization of adjudi­cation operates to keep tabs on those Muslim mandarins who are gifted based on their character, achievements, kinship ties, and regional reputation, and thus might be seen as threatening to the regime. Conversely, as state law is not a privileged basis of legitimacy in China, connections with those who have the capacity to influence others are powerful sources of maintaining legitimacy. In other words, authoritarianism is not simply top-down coercion, but operates through a number of nodes of authority. In Hui communities, the local party­state thus relies on Muslim mandarins.

THE DYNAMISM OF INFORMAL LAW: THE CHINA MODEL?

The treatment of informal legal orders, such as that of Islam, under state secular laws is one of the central questions of the post-9/11 period. The perceived incompatibility of Islamic law with liberal norms in the West has incited intense intellectual efforts at accommodation that are at the center of designing institutions to incorporate Islamic law into secular justice systems. The arbitration model, used in the United Kingdom and Canada, for instance, has proven controversial, as women's rights activists have raised questions about gender equality under such institutions. Likewise, Tamir Moustafa has argued that the binary and mutually exclusive way in which Islamic law and liberal law are conceived in Malaysia is more a factor of institution building than of any inherent conflict. India has devised a “semi­confessional system” whereby secularly trained Anglo-Indian judges apply the Islamic law of personal status in civil courts, although the enactment of a Uniform Civil Code that would abolish such state-enforced legal pluralism is hotly contested.

In China, socialist doctrine fails to recognize Islamic law. Hui disputing reveals that it is not formal institutions that do the work in reconciling state law from above with Islamic law from below, but rather systemic informal rela­tionships. Whereas Islamic PMCs function to reproduce state power at the local level and do not reconcile Islamic law with socialist state law, the informalization of adjudication is the process through which cadres and clerics determine the scope and applicability of state versus Islamic rules. The kinds of relationships between judges, police, and judicial bureaucrats, on the one hand, and Muslim mandarins like Nasim, on the other, are not purely ad hoc, nor do they necessarily fall within the ambit of official responsi­bilities from positions within the Yi-Xie or CPPCC; rather, they gain traction in dispute resolution largely beyond official responsibilities and entitlements by law or regulation, where guanxi or unofficial connections take over.

Guanxi is routinely criticized as inviting corruption, particularly in the current anticorruption campaigns led by General Secretary of the CCP, Xi Jinping. Whether or not personalistic relationships are bad or good for legal development depends to some measure on whether arrangements attain their goals. The formalization of mediation addresses local conflicts and keeps disputes out of courts by mobilizing Muslim authorities. [...] A secondary function ensures that such disputes are not resolved with respect to Islamic law. The process appears to achieve success in obtaining these respective aims. Likewise, the informalization of adjudication takes disputes out of courts and delegates mediation to clerics like Nasim. The crucial difference is that Nasim uses such delegation to apply Islamic law rather than state law. [...]

Addressing disputes and keeping them out of the formal court system may not necessarily be a means to justice, however, particularly from the vantage of Muslim piety where Islamic law is controlling. The formalization of medi­ation and the informalization of adjudication have different effects on infor­mal law. In the former, dispute resolution conducted by Islamic PMCs is emptied of Islamic law substance. The latter process valorizes the capacity of Islamic law to address conflicts, all the while maintaining its exclusion from official recognition. Each process involves secular law and policy actively shaping Islamic law - by occluding it from gaining traction in the public sphere but using it (in some instances) to minimize social conflict. In the informalization of adjudication, skilled mediators can apply Islamic rules, but enforcement depends, elliptically, on the piety of those who seek such forms of redress.

ADR-like institutions in Northwest China are one instrument of the party­state's rule over Muslim minorities. The study of dispute resolution in Hui com- munities points to the soft power aspects of mediation in the course of the state's regulation of nonstate authorities. [...] The case of Muslim man­darins shows power running in multiple directions and its benefiting or constraining multiple parties.

The case of Hui disputing sheds light on the relationship between state law and informal law, more generally. Writing over forty years ago, Sally Falk Moore demonstrated that where multiple regulatory regimes interact in the same social field, “legal, illegal, and non-legal norms all intermesh.” The sociologist Boaventura de Sousa Santos has called this process “structural interpenetration.” In Hui disputes, however, normative pluralism is not as pronounced as procedural blurring, particularly in the informalization of adjudication. Much of the disputing is driven by the deep pragmatism of the state's legal and judicial bodies. In short, human agency produces the relationship between state law and Islamic law, however complicated by a state ideology or the letter of the law that refuses to give legal status to religious law.

The codependence of formal and informal law in Northwest China thus relies on social connections and pragmatic decision making of actors on the ground. The ways China approaches disputing and governance, more broadly, in plural societies has practical importance. An arena for increasing empirical research is collaborations between Western states and domestic Muslim leaders in communities that feature a large number of Muslims for purposes of dispute resolution, surveillance, and information gathering. Police in US cities, for instance, have looked to imams and elders as “relationship-building leaders” in “community-policing” programs. A concern in recent years has been homegrown terrorism perpetrated by nationals who have been influ­enced by antistate propaganda, often in the form of online media, as allegedly motivated the killer of the Uyghur imam Juma Tahir. In such community­policing programs, relationships may transform law's categories. Although the Hui are not directly the object of state counterterrorism policies as is the case of the Uyghurs, the preexisting relations cadres have with Muslim mandarins are nonetheless mobilized for purposes of collecting information about devel­opments within Muslim communities in China. Some well-educated clerics opt out of the system for a number of reasons, including discontent at being accessed by the local party-state.

The ADR processes I have discussed suggest that in the grayed-out margins where formal law meets informal law, collaborations may transform formal law. In the example of the informalization of adjudication, procedural requirements that a case cannot be remanded to a nonstate authority once it has been lodged within a people's court are ambiguous, and human actors who are under pressure from seniors to address grievances further informalize rules by handing over disputes to Muslim mandarins. When social ties shape the practice of law, such arrangements are flexible and may benefit parties to the dispute; however, they can also potentially encourage abuses of justice in a race to the bottom.

More research is needed on the effects of secularist policies and their pragmatic concerns of public safety and security for Muslim communities and their rights under both state law and informal legal orders, such as that of Islam. Placing the China case in a comparative reference, informalization of law may signal a race to the bottom as counter-radicalization programs erode due process and formal rights. In other words, rather than China adopting Anglo-American legal standards, in the case of governance of Muslim minor­ities, Western democratic states may be becoming more like China. Although the formalization of mediation confirms sociolegal theory about the state's colonization of informal law and dispute resolution processes, future research can determine the extent to which the informalization of adjudication has equally colonized official law in the post-9/11 period of anxious collaborations between the state and Muslim authorities.