Post-WTO China and Independent Judicial Review
M. Ulric Killion
Shanghai International Studies University
Houston Journal of International Law, Vol. 26, No. 3, pp. 507-559, Spring 2004
Before accession to WTO, China made substantial advances towards modernization. Since initiating economic reform and an open door policy some 25 years ago, the Chinese economy experiences high rates of growth. The West now stands in critical judgment of China's progress towards rule of law, especially its lack of positive discursive model for judicial review. It is a pre-judgment tainted by Western bias and taxonomies, however. Critiques ignore the dangers to China's fragile infrastructure; i.e. polity, socioeconomic, and legal, that must be carefully guarded, lest China suffer setbacks in its legal reforms and economic development. A need for stability results in a steady, yet gradual, approach to modernity.
Despite the Maoist era, one surmises that China's legal system bares a rich history in Chinese jurisprudence. Recent attempts to make China's constitution justiciable, prophesies an optimistic future for judicial review and genuine constitutionalism. However, the prophecy of judicial review is not necessarily reflexive of the principles of Marbury vs. Madison; rather, it is a prophecy of a distinctive Chinese legal system that reflects traditional Chinese jurisprudence. Chinese philosophy, history, culture, particularism, and nationalism, combine to educe a distinctive legal culture that prophesies both a distinctive Chinese fazhi (rule of law) and judicial review. There is rule of law in China, but it is a Chinese variant of Western rule of law, which continues to evolve.
Number of Pages in PDF File: 44
Keywords: China, Judicial Review, rule of law, Constitution, WTO, Confucianism, Legalism, nationalism, universalism, particularism, philosophy, culture, history
JEL Classification: K33, K29, K00, F13, F19, N45Accepted Paper Series
Date posted: June 23, 2004
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