Saturday, February 27, 2016

Shaoming Zhou on Jerome A. Cohen, “A Looming Crisis for China’s Legal System: Talented Judges and Lawyers are Leaving the Profession, as Ideology Continues to Trump the Rule of Law”

(Pix © Larry Catá Backer 2016)

Issues of democratic legitimacy of the Chinese political, constitutional. legal and economic order are fairly common in the West. Indeed there are legislative institutions in the U.S. Congress whose sole business is the production of such critique (e.g., the U.S. Congressional-Executive commission on China).

But there are differences in the way one can go about making those critiques, each of which might produce substantially distinct insights. In the West, for example, it is common to apply what I call the outside-in approach. That starts from the set of premises extracted from global consensus or the reading of democratic traditions among influential states, and then projects those into China, comparing how the Chinese approach stacks up against these outside models. A less common approach, but one sometimes used by comparative scholars is what I call the inside-out approach. This starts by a rigorous examination of the system to be examined, both the theory and practice of governance, and then projects those out against a set of foreign markers. The outside-in approach tends to reveal more about the foreign system projected inward and the extent of global harmonization, along with the character of that harmonization. The inside-out tends to provide greater insight into the working of the system examined and the extent to which the gaps between theory and implementation reveal weakness, including coherence in form or function that might be advanced through a study of foreign systems.

Jerome Cohen, Professor of Law at New York University, one of the great scholars of China in the United States, has recently produced a marvelous essay that for me highlights what may be some effects that follow the choice of methodology (Jerome A. Cohen, “A Looming Crisis for China’s Legal System: Talented Judges and Lawyers are Leaving the Profession, as Ideology Continues to Trump the Rule of Law,Foreign Policy (February 22, 2016)). The essay provides a powerful consideration of the consequences of the current Chinese approach to legal reform and its suggestion of the underlying structural deficiencies of the current normative Chinese political order. These judgments are made against an application of the standards of universal legal values which China has endorsed. The essay suggests the value of an outside-in approach. But it also exposes the possibilities for a distinctive approach and another potentially rich vein of analysis using an inside-out approach.

It is in this light that Flora Sapio, Jean Mittelstaedt, Shaoming Zhou, Sun Yuhua, Jade White, and I thought it might be useful to consider Professor Cohen's excellent article. To that end each of us prepared a short engagement with distinct sets of insights developed by Professor Cohen (Introduction here).

The responses may be accessed here, along with a Chinese language summary of the comments:
Part I: Larry Catá Backer
Part II: Flora Sapio
Part III: Jean Mittelstaedt
Part IV: Shaoming Zhou
Part V: 中外学者中国法治改革的关注与讨论.
Part VI Sun Yuhua
Part VII White Jade; (English Version HERE)

his post includes Shaoming Zhou's response. 

Comments on “A Looming Crisis for China’s Legal System”
Shaoming Zhu

Professor Jerome Cohen’s recent essay, “A Looming Crisis for China’s Legal System,” has garnered much attention in academia. It is my honor to join the discussion on this essay.

In my opinion, there are three key themes in this essay: judicial reform, legal professionals, and the CCP.

Prof. Cohen suggests that there is general dissatisfaction with judicial reform efforts among legal professionals, especially judges. It has only been one year since the “Opinions on Comprehensively Deepening the Reform of the People's Courts” [1] was released. Why is it, then, that “many judges have recently resigned in order to find other work?”

To answer this question, we must examine the “Quota System.” The Quota System is part of the reform of court personnel management. It is designed to establish quotas on the numbers of judges and prosecutors within the judicial system. For example, according to the legal reform in Shanghai, the number of judges and prosecutors is limited to 33%, the number of judicial support staff (审判辅助人员)is limited to 52%, and the number of administrative staff is limited to 15%.[2] The purpose of the Quota System is to ensure that the most qualified judges and prosecutors are retained and that they will be rewarded with higher salaries. But this arrangement has discouraged some people, especially young people in judicial system. As Prof. Cohen mentions, “[t]here are roughly 200,000 judges and a similar number of prosecutors.” Currently, judges comprise about 58% of the number of all employees in the courts at all levels in China. However, the Quota System would allow only 39% of the employees to become judges, according to the requirement of the Political and Judiciary Commission under the Central Committee of the CCP.[3]

Therefore, there will invariably be a certain number of people excluded from the system, and the potential for promotion will be greatly reduced. Additionally, each judge will be under more pressure as caseloads increase. On top of these general career concerns, judges must also worry about their reputational and physical security. Just two days ago a female judge named Ma Caiyun(马彩云) of the Beijing Changping District Court was shot and killed by a disgruntled litigant. While this is an extreme example of the risks judges face, it is clear that judges and prosecutors have fewer benefits and greater pressure compared to legal professionals work as lawyers, in business, or in academia. This pressure is at least in part caused by the implementation of judicial reform.

Nonetheless, it is too early to question the effectiveness of judicial reform, since it is still in a transitional period. In the long term, a more important issue that Prof. Cohen raises is “the relationship of the party to the legal system.” In my view, the relationship of the Party to the legal system is simple and firm. To deepen the legal reform, we must uphold the leadership of the Party. This is the first principle in “Opinions on Comprehensively Deepening the Reform of the People's Courts.”

The way that the Party carries out its leadership refers to political, ideological, and institutional leadership. This is not something new but has been always the basic governing way of the Party. One the most obvious facts of President Xi’s governance is that he has greatly strengthened the leadership of the Party since he came into office. For example, “Regulation of Leading Party Members' Groups of CCP (Trial Implementation),” which was passed in May 2015, requires the establishment of leading party members’ groups in the leading body of state organs, people's organizations, economic institutions, cultural institutions, social organizations and other leading organizational units in order to guarantee the implementation of the line and policies of the Party. [4] The leadership of the Party engages in all areas and fields, including legal system.

“Ideology continues trump the rule of law,” Prof. Cohen states. Similarly, just as he argued in the comments on the case of Pu Zhiqiang, China’s “rule of law” is actually “rule of party.”[5] His concern does make sense, and some policies and actions are indeed worrisome for many reasons. However, the governance of a state generally reflects the will of the ruling party. This is not just the case in China, but all over the world. Within China’s constitutional and political system, it is a conceptual fallacy to separate the judicial system from the Party, seeing as the legislative and administrative systems are also not independent from the Party. As such, the best result of judicial reform that I can imagine is the full separation of the judicial system from the administrative power.

“Whether China can go on from here to build what we would recognize as a more predictable, reliable, and independent legal system” does not rely on the leadership of the Party, but the faith of the people in the law. It is also not a question of how the Party leads the judicial reform, but how judicial, legislative, and administrative reform work together comprehensively. So, in addition to the issues Prof. Cohen puts forward in this essay, we will have to pay more attention to the reform of lawmaking and law-enforcement. How to resolve the imbalance between insufficient supply and increasing demand for legislation? How should the People’s Congress and its Standing Committee play the role of the legislator? How to avoid the problems of abuse of legislation and exceeding authority? How to improve the quality of laws? How to deepen reform of the administrative law-enforcement system to build a law-based government? How to build faith in the law among people? These are the more pragmatic issues in China’s legal system.


[1] According to “Opinions on Comprehensively Deepening the Reform of the People's Courts”, which is also known as “the Third Five-Year Reform Outline of the People's Courts (2014-2018)”, the reform of the people's courts include seven main tasks: 1) Establish a judicial jurisdiction system properly independent from the administrative jurisdiction divisions; 2) Establish a litigation system with courtroom trial as focus; 3) Optimize the internal allocation of functions and duties of the people's courts; 4) Perfect the operating mechanism of judicial powers; 5) Establish an open, transparent, and convenient judicial mechanism; 6) Promote the professionalism of judges in courts and deepen reform of court personnel management; 7) Ensure the people's courts to independently and fairly exercise their judicial powers according to laws and regulations.




[5] The case of Pu Zhiqiang: “rule of party” instead of “rule of law” 浦志强案:党治,而非法治

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