OK, I know it’s a Friday, so don’t worry. Despite that daunting post title, this will not be a lengthy, technical discussion of various legal reforms and their effect on jurisprudence. Well, maybe a little bit.

You may have noticed an uptick in the number of posts on this blog and the number of links on my Twitter feed (@chinahearsay) on local legal reform. To be honest, this is not reflective of a sudden flowering of innovation. The more mundane explanation is that I started monitoring a Chinese-language news aggregator that contains a lot of those stories, and that’s why they’re on my radar screen.

In the past couple of days, I’ve seen several items about a pilot project in one district of Ningbo that has led to some interesting discussion. Under the policy, called “conditional non-prosecution” (??????), prosecutors may decide not to file charges against individuals based on present background and future conduct. The system is similar in some ways to Western concepts of probation and alternative sentencing programs, although in this case it is done prior to initiation of formal proceedings.

The program is indicative of a large number of grassroots legal reforms that are springing up in various parts of the country. Although I have no idea if there has been an actual increase in these pilot projects in recent years, it wouldn’t surprise me. As I’ve been writing over the past few months, civil and criminal cases in China have been proliferating and dockets are overflowing. Any legal reforms that may reduce this burden would certainly warrant a serious look in this sort of environment.

And yet there are critics. An Op/Ed in the Oriental Morning Post (Chinese only) on the “conditional non-prosecution” program in Ningbo poses questions about the ability of grassroots officials to institute such pilot projects given the lack of specific legal authority granted by Beijing (or any other higher judicial authorities). To put it another way: how conservative should legal reform be, and does local experimentation damage rule of law?

I have a feeling that I’ll be looking at this issue for years to come, so no need to cover all the angles in this post. However, consider just a couple of ways to look at this:

1. The “conditional non-prosecution” program has been criticized because it introduces the possibility of differing outcomes for the same crime as a function of geography. In other words, the punishment (or lack thereof) will be different depending on where the crime was committed. We bemoan this sort of thing when it occurs in the area of commercial law, so why is it acceptable here?

2. If pilot projects like this one result in criminals receiving lighter punishments, isn’t that being “soft of crime” and therefore bad for social stability?

3. Who really has the legal authority to introduce such programs? Shouldn’t localities wait for Central Government or provincial authorities to take the first step?

4. Do we really want to give local authorities even more discretion in legal proceedings? A lot of abuses, including corruption, are only possible given the wide discretionary power of local police, prosecutors, and judges. Don’t these programs exacerbate that problem?

These are some big questions to keep in mind when evaluating new programs as they pop up in the news.

Just to let you know my bias in this area, I’m pretty much a liberal when it comes to things like alternative sentencing and local experimentation, as long as new programs do not result in curtailing individual rights. To the extent that grassroots legal reform results in differing outcomes, I think the possible benefits probably outweigh the liabilities.

Moreover, if the public sees local innovation designed to make the judicial system fairer and more efficient, this will serve to strengthen the rule of law, not weaken it. On the other hand, if  programs like “conditional non-prosecution” are exploited by the powerful, using their wealth or influence to avoid punishment, then of course this would serve to undermine public faith in the judicial system. As with everything, it all depends on implementation.