Detaching the Judicial Role from the Judge—A Reflection on The Nature of Judicial Reform in China

(Bao Zheng, Wikipidia image From Illustrations of the Three Powers (1609))

The issue of judicial reform, and of the working style of the judge, has been at the forefront recently in China. Both national and foreign scholars, politicians, civil society elements and the like have weighed in on the issue. Each of them have their own axes to grind. Foreigners are looking for convergence with their own standards, ideologies, and practices—however contested these may be in their own home states. The national debate on judicial reform reflects playing out of more complex politics involving not merely the technical issues of judicial efficiency and operations, but also touching on the character of the judge, the judicial role, the relationship between judge and law, and the role of law within a Marxist Leninist political framework. I have recently considered some of these issues.

But underlying all of these debates—some normative and some technical/methodological, is a fundamental issue that tends to go unexamined. That issue touches on the connection between the judge-judiciary and the exercise of the judicial function. When people speak to judicial reform, they use that as a shorthand to speak to the judge embedded within the institution of the judiciary. That, I suggest, overly narrows and centers the issue of judging and its connection of political system legitimacy on the institution of the judiciary rather than on the systems created for judging—and the legitimacy enhancing normative constraints of judging detached from the institution of the judiciary, though also there applied .



In the West there has always been a detachment between the institution of the judiciary and the role of judging. The common law judiciary form which the modern institution of the judge, derived in large part was in its origins just one of many institutions for the settlement of disputes. Those institutions have been consolidated to some extent. But with every consolidation new manifestation of judging power outside the institutions of the judge arose. The consolidation of law and equity in the United States, for example, was implemented even as the administrative state arose, and with it the creation of a large “quasi-judicial” power (notice the way in which Americans are taught to reference these judges—by the very language of the judges themselves in their cases) exercised by hearing officers and the like. But consolidation prevailed through the institution of hierarchy in which the most legitimate and superior institutional manifestation of the judicial power is vested in the institution of the judiciary—that society of judges whose cultures and habits are meant to be autonomous though connected with, the rest of the state apparatus. It is that hierarchy that has permitted the detachment of the judicial function from the judge—precisely because at some point the institution of the judge will pass on the soundness (one way or another) of the actions of inferior administrative hearing officers, arbitrators, or secondary officers with judicial roles (for example bankruptcy court judges). The structure of Article III of the U.S. federal constitution provides the hint—vesting the entirety of the judicial power of the federal apparatus in courts and thus consigning all judging undertaken elsewhere as inferior in form and effect.

This is the model mimicked throughout the United States, less so elsewhere in the West, but enough so that a set of ordering premises can be discerned—and taken for granted in speaking with or engaging other systems. First, judging is best done by courts overseen by properly trained judges. Second, these judges must cultivate institutional solidarity with other judges, and thus unified, represent the institution for resolving disputes and “protecting” the law against other public or private institutions that may deploy or apply or interpret “the law” in the course of their own exercise of authority. Third, the connection between the judges, the institution of the judiciary may not be interfered with by other institutions of state. Fourth, within the institutions of the judiciary, all inferior judges owe a duty of obedience and loyalty to judges of superior courts, or better put, to those portions of opinions that are rendered in courts hierarchically superior, to the extent required within the specific judicial culture in which the judicial institution operates. Fifth, judging cannot be detached from the institution of the judiciary and must be exercised by the individual judge, alone or in groups as provided by law or judicial custom. Sixth, others who purport to exercise the power of judging may do so legitimately only to the extent their actions, to some minimum extent (as specified by the judicial institution itself through its own interpretation of its own constitutive powers, its kompetenz-kompetenz), are subject to review or conformation by the judiciary. Seventh, only the judiciary, either generally or within specialized tribunals created for that purpose, may interpret the extent, limit and lawful application of governmental power. Eighth, only the judiciary (either generally or through specialized tribunals designated therefore), may interpret and apply authoritatively as against other institutions of states and non-state actors.

But are these premises, all or any of them, absolutely necessary to protect the integrity, such as one wants it, of the judicial process (and not necessarily of a particular judicial institution)? It is possible to suggest that the answer is no. For that purpose one might consider the theoretical arrangement of the judicial authority in China. At the 11th Annual General Conference of the European China Law Studies Association (欧洲中国法研究协会 ). There were three quite interesting discussions that brought home the challenge and possibilities of an assertion of the judicial power detached from the judiciary itself. S. Beth Farmer spoke to the issue of the assertion of judicial authority by agencies in the context of the Chinese competition law (“Ideology, Theory and Anecdote”). Keren Wang spoke to the ambiguous context in which the role and power of a judge is understood (Fractured Legal Theology: Tension between Socialist Doxa and Confucian Pistis in Chinese Judicial Reform Discourse). And Shaoming Zhu spoke to the exercise of judicial powers of interpretation within the legislative apparatus itself, even in the face of the reform of a vigorous judicial apparatus (“Judicial Reform and Legislative Reform: Conflicts and Mutual Promotion). These investigations frame a quite different way of approaching the construction of a judicial power, and of the administration of law.  It suggests that the review of disputes need not be aggregated within a single institutional authority. A stste need not necessarily constitute a single institutional structure (the judiciary) for the purpose of authenticating the actions of judges and other hearing officers with respect to their actions resolving disputes or interpreting law or regulation in the course of resolving disputes. It suggests as well that the function of interpreting and of applying law to a dispute can be separated and administered through distinct institutional means.  The former authority can be reconstituted as a political activity reserved to the political authorities of the institutionalized state; it represents the application of the generalized power of the political community to refine its reading of law. The latter reconstituted as an administrative mechanism in which the highest forms of integrity and the greatest protection against interference by the political bodies ought to be cultivated.

On the one hand, one could ask—what does any of this have to do with judicial reform? But that question could only be asked by one oblivious to the power of the assumptions of judging described above. In the Chinese context, the better question might be to consider the need either for a unitary judiciary or for a unitary legal sphere. Within China, then, the grounding question should be the one that is never asked in the West--the extent to which the judge and the judicial authority must be exercised exclusively or completely by or through the institution of the judiciary and by judges. In other words, does the political system of system suggest a different approach to the fracture of judicial authority consist with its own political logic.

That fracture would see in the judges a mechanism for the resolution of disputes among private parties. But it might strip away from that institutional apparatus all authority of interpretation of law (to be given to a legislative authority, a separate political body charged exclusively with issues of interpretation in the context of disputes or some other body perhaps in the CCP itself). It might also strip away from the judge—and the institution of the judiciary all authority over disputes involving the state itself. The issue of relief from administrative excess, wrong decision making, corruption and abuse of power might itself be treated as executive in character and assigned to another and distinct competent authority. Within the Chinese context, and with the close connection that some of these issues might have with breaches by CCP cadres of their paramount duty to the CCP and its Basic Line, the institution might combine both CCP disciplinary and state disciplinary structures. And lastly, it might create, within the administrative strictures of the state structures of administrative hearing that can exist as judicial decision making independent of a judiciary. In each of these cases, though, the one thing that must be respected—the lynch pin of judging, is the independence of the judge to decide the dispute before her on the basis of whatever received law and interpretation is demanded by the system. That judicial independence in the face of actual decision making in a live dispute, might be the only point of connection among those who might exercise the judicial authority in distinct and partial ways. Coordination and compatibility with western institutional forms of deploying the judicial power, and matters of legitimacy will then follow.

The result is medieval in the sense of the proliferation of multiple venues and institutions for judging—for exercising the judicial craft. What is suggested as both possible and likely within a Marxist Leninist state apparatus true to its theoretical foundations (e.g., here) is institutional multi-hierarchies in judging. The result is anarchic from an institutional level. But it has several advantages for a Marxist Leninist system committed to the construction of socialist rule of law. First, it detaches law form the judiciary. There is no special relationship between law and the judiciary in a Marxist Leninist system. Indeed the only special relationship ought to be between the vanguard party which guards the integrity of lawmaking as a whole, and the law as an expression of the protection of society and its forward movement along the objectives for which the vanguard has been constituted and empowered. This is inimical to Western thinking, but this is not a Western democratic polity. Second, that detachment permits a management of the administrative aspects of judging without the contradiction of also dealing with a latent political authority in the actions of judges. In other words, to reduce the judge—in all her variations—to aspects of administrative roles, to strip the judge of her relationship as curator of law (and thus with a political authority that might rival the Communist Party itself in implementation and interpretation), permits the advance of judicial reform in a manageable and attainable way. It does this by making it easier to manage corruption (without the complexities of defenses based on arguments that prosecutions are based on retaliation for exercise of political authority in judging or interpreting law), and to manage the craft of judging through assessment that should itself be fee of politics. Third, it frees the development of law—statutory, administrative and Party law, within the context of its own politics. And it ensures that those with political authority are made responsible for their failures of leadership in law making, law enforcement and the interpretation of law. It is to the CCP itself that the responsibility belongs, and it is necessary to ensure that the CCP itself embraces that responsibility directly—by becoming directly accountable for its operation. That accountability should take two forms, indirect with respect to the disciplining of judges as administrative officials, and direct in the construction and interpretation of uniform law applied uniformly and fairly to the masses.

But it also suggests that this separation might be itself fragmented among different institutional mechanism, functionally distinguished by the subject matter of the dispute or the identity of the parties.  Here one can at least touch on the great "elephant in the room" (an obvious element of judicial reform that goes unaddressed)--the problem of the reform of the judicial authority and judicial institutions that deal with actions involving the state. The thrust of judicial reform has tended to focus on two distinct but related forms of disputes--those between private parties both of whom are Chinese, and those between parties at least one of whom is not Chinese. More importantly, it remains problematic when an instrumentality of the state--a state owned enterprise, for example, is involved, ot where SOEs and local officials collude to avoid their respective obligations to the local people they ought to serve. It is in this context that China might most usefully draw on elements of judging from the West, though it bears repeating that such "inspiration" might touch on techniques rather than ideology. But it is in the matter of disputes involving officials--because their decisions violated law, or because of corruption or other failures, that the thrust of judicial reform remains substantially silent.  And yet it is in this context that reform is most needed. The focus of that reform might not lead one either to the judiciary as an institution or to law.  The CCP Basic Line, for example, might suggest that where the conduct of officials is involved specialized procedures ought to be created within specialized bodies.  There is a precedent for this sort of status specific fracture--the hearing structures of the Central Commission for Disciplinary Inspection. That model lacks a necessary connection between the function of accountability and the remedial obligations of the state toward its masses.  That omission could be addressed through the creation of specialized bureaus that would serve both to discipline officials and to also provide remedies for those injured by official misconduct.  That, in turn, would require the state, under the leadership of the CCP to develop a mechanism for assessing damage and a procuratorate of trusted officials to enforce the state's paramount duty to ensure that officials, in their conduct toward the people, exercise the care that their responsibilities demand.   

The usual caveats apply here and generally when discussing Chinese institutions with foreigners: the reality of judicial action "on the ground" and its theory (or idealized forms) may be quite distinct, the level of corruption may make theoretical constructs fantasy, the disciplinary element where the CCP might be the worst offender when it comes to CCP cadres failing to follow their own Basic CCP Line in relation to the deployment and operation of a judicial authority (the problem if interfering with judicial administration). But these caveats need not necessarily concede the fundamental points of a theory of a detachment of the judge from the judicial function.

It may be time, though, to start from first principles in the approach to the analysis of the construction of a judicial power in China and its alignment to the state apparatus. Clearly the fundamental objectives of justice according to law, predictably and concisely applied ought to guide the analysis. But the normative foundation does not necessarily dictate a particulate institutional result and certainly not a singular institutional design. It is to those matters that Chinese efforts at judicial reform ought to be directed. Coordination and compatibility with western institutional forms of deploying the judicial power, and matters of legitimacy will then follow.