Judicial Independence in China: Common Myths and Unfounded Assumptions
La Trobe University - Faculty of Law and Management; Oxford University - Centre for Socio-Legal Studies
September 1, 2008
La Trobe Law School Legal Studies Research Paper No. 2008/11
The Chinese judiciary is regularly criticized for the lack of independence. The lack of "genuine progress" in establishing an independent judiciary is then cited as evidence that China's reform process is trapped in transition. In response, international donor agencies and bilateral legal cooperation programs have encouraged China to adopt the institutions and practices found in advanced Western states known for the rule of law.
Surrounding these views is a set of common myths and unfounded assumptions. The first assumption is substantive: the concept of judicial independence is clear, and there is a single agreed upon model or a generally accepted set of institutions and best practices articulated with sufficient specificity to guide reformers. The second assumption is methodological: there are clear standards for measuring judicial independence. The third assumption is normative: we know how independent courts should be (at each stage of development). The fourth assumption is the more independence the better. The fifth assumption is that the lack of judicial independence is a serious problem in all types of cases in China. The sixth is that China's courts lack independence because independence is impossible within a single party state. The seventh, and a corollary, is that "the Party" is the main source of interference with the courts. The eighth is that were China to suddenly democratize, judicial independence would no longer be a problem.
This article advances three main theses. First, each of these eight assumptions is either wrong or needs to be qualified. Second, general statements about the lack of judicial independence or the impossibility of achieving judicial independence in a single party state fail to capture the complex reality of China or many other authoritarian regimes. Third, legal reforms that assign a high priority to judicial independence will be unsuccessful or limited in their effectiveness until there is a deeper understanding of these issues as they apply to China and to developing countries more generally.
Part I distinguishes between various aspects or subcomponents of judicial independence. Part II then takes each of the subcomponents of judicial independence in turn, reserving a discussion of the main external constraints on judicial independence for Part III. Part IV discusses the implications of China's efforts to increase judicial independence for the law and development movement, including observations about methodology and the relationship between regime type and judicial independence. Part V concludes with some recommendations on how to address the related problems of judicial corruption and judicial independence.
Number of Pages in PDF File: 32
Date posted: October 12, 2008 ; Last revised: November 16, 2008