A New Analytical Framework for Understanding and Promoting Judicial Independence in China

Abstract

We develop a new analytical framework for understanding and promoting judicial independence in China. General denunciations of the "lack" of (meaningful) independence in China fail to capture the complexity of the situation. Attributing the lack of meaningful independence primarily if not exclusively to the nature of the political system also misstates, and overstates, the role of the Party, and ignores more common sources of pressure on the courts. We distinguish between pure political cases, politically sensitive cases, and ordinary cases, and highlight three types of politically sensitive cases: socio-economic, new crimes and class actions. We then discuss the sources, nature and impact of interference for each of type of case, and provide recommendations tailored to the particular problems that arise.

Judicial independence is not an end in itself but a means to other goals. There is substantive disagreement in China about how independent the courts should be and whether the courts are the appropriate forum for resolving certain types of disputes. We show that reforms to enhance judicial independence entail a wide range of changes that affect not just the judiciary as an institution but substantive and procedural law, the balance of power among state organs, Party-state relations and social attitudes and practices. An approach focused primarily on the judiciary, or even on state institutions, is therefore not sufficient.

Keywords: judicial independence, rule of law, law and development, comparative law

JEL Classification: K40