I am happy to announce the publication of "Between the Judge and the Law: Judicial Independence and Authority With Chinese Characteristics," which appears in the latest issue of the Connecticut Journal of International Law 33(1):1-41 (2017). My thanks to the Journal and its excellent staff and a special shout out to Ryan Hoyler, its Lead Articles Editor. They were all a delight to work with.
The article suggests the value of approaching an analysis of the state of the Chinese judiciary and its reform from within the context of the normative structures of the Chinese political system--including its separation of powers principles. That approach is a necessary predicate to understanding both the trajectory of judicial reform in the "New Era" and the range of plausible approaches it may take move toward universal objectives of "good" or "sound" judicial function.
The Abstract and Introduction follow.
"Between the Judge and the Law: Judicial Independence and Authority With Chinese Characteristics,"
Connecticut Journal of International Law 33(1):1-41 (2017)
Larry Catá Backer
Abstract: What is the scope and nature of judicial reform? To what extent does borrowing from Western models also suggest an embrace of the underlying ideologies that frame those models? It is a common place in the West, whether in Common Law or Civil Law states, that the integrity of the judiciary depends on their authority to interpret law and to apply that interpretation to individual cases and the litigants that appear before the courts. That presumption, however, embeds premises about the organization of political and administrative authority that may be incompatible with those of states developing Socialist Rule of Law structures within Party-State systems. In Common law states those deep presumptions touch on the disciplinary role of judicial opinions as a constraint on judicial interpretation. In civil law states that discipline arises from the constraining principles of the legal codes themselves. In both the legislatures serve as the ultimate check in a complex dialogue with courts in three respects. First, judges serve a political role in their relation to law. Second, cases themselves serve an important political role as well. Third, courts begin to serve as the place where societal narratives are forged and popular expression is constructed and applied. In Socialist rule of law systems, the disciplinary systems are quite different and ought to produce a different relationship between courts, law, and the cases they are bound to apply fairly and consistently under law. This paper considers the way that the logic and grounding principles of Chinese Marxist Leninism may provide guidance in the construction of a judicial enterprise that is both true to its organizational logic and which enhances the authority of judges to serve litigants fairly. It suggests the points of compatibility and incompatibility in the ideologies of these distinct systems of judging and what it may mean for judicial reform in China. That consideration, in turn is based on a fundamental difference, in Socialist Rule of Law systems, between the authority to interpret law and the authority to apply law to an individual case. For Chinese judicial reform it is in the perfectibility of the judge that lies the perfectibility of law that in turn ensures the perfectibility of the judge. Part II considers in very broad strokes the relationship between the judge and law in the West. Part III then considers Chinese reforms touching on the relationship between the judge and the law, and the evolution of normative structures within which one can speak to judicial independence. Part IV then considers the project from the perspective of the grounding ideology of the Chinese state. From that fundamental distinction, the paper will propose a Socialist approach to the judicial function compatible with its own logic and legitimacy enhancing under global consensus principles for a well-organized and functioning judiciary.
Table of Contents:
I. Situating the Tensions of Chinese Judicial Reform
II. The relationship Between the Judge and the Law in the WestA. The State and the LawIII. The Conception and Operationalization if Chinese Judicial Reforms
B. The Judge and the Law
IV. Toward a Leninist Approach to the Role fo the Judge in a Marxist-Leninist State
Conclusion
I. Situating the Tensions of Chinese Judicial Reform.
Must judges have the independent authority to interpret the statutes and regulations they apply to disputes before them as a necessary element of the legitimate exercise of their authority? This essay argues that in China they do not. Judicial reform in China has emerged as one of the most important political, administrative and governance reform efforts of the last decade.[1] Judicial reform itself is deeply embedded within a larger discussion about the rule of law within the Chinese political and judicial systems.[2] Much of that reform has been technical, to make the institution of the judiciary better at producing results compatible with the larger political issues in China, from corruption to the training of judges and the management of dispute resolution.[3] Reform has been grounded in the attainment of pragmatic objectives. [4] But form follows ideology; always lurking is the specter of technical changes as the methodology of fundamental transformation of the political order.[5] Those tensions in the development of Chinese judicial reform were nicely summarized by Ben Liebman almost a decade ago at the beginning of the current waves of judicial reform.
Such reforms appear aimed at making the courts institutions for the fair adjudication of individual disputes. At the same time, commentators in China and in the West have argued for greater changes, contending that courts should serve not only as adjudicators of private disputes but also as checks on state power and as fora for the resolution of public rights––in sum, that the courts should play a significant role in the development of Chinese governance and society.[6]
The judgment has been made much more explicitly by other influential Western commentators: “today’s PRC legal system is basically a perversion of the European civil law system easily recognized by continental legal specialists. . . “Judicial independence,” as it is commonly understood outside China today, is the enemy and forbidden by Party rulers even to be discussed in law schools.”[7]
The problem, then, revolves around the ideological baggage of technical improvements modeled on or borrowed from political systems whose organization of state power are quite distinct from that of China. It is, as well the tensions inherent in the assessment of such changes, especially assessment from foreign peers—whose standards of assessment are themselves grounded in and meant to further, the ideological foundation from which they operate. In other words, it is impossible to separate the techniques of judging and judicial administration from the principles and politics that gave the system its form. To embrace one requires embrace of the other.
At the root of the problem are the premises on which judicial systems are founded and assessed. That is, the problem of judicial legitimacy and authority, the way such authority is perceived and maintained within a political system in which it is embedded haunts not merely the efforts at judicial reform in China, but the way in which foreigners approach the evaluation of those reforms as legitimate (and thus the exercise of judicial power as legitimate). These basic premises are so deeply embedded in Western political cultures that they appear natural. For example, it is a common place in the West, whether in Common Law or Civil Law states, that the integrity of the judiciary depends on their authority to interpret law and to apply that interpretation to individual cases and the litigants that appear before the courts. That authority to interpret and apply law to the disputes before them is to be exercised autonomously of other political actors and with a strict fidelity to the fundamental legal principles of the system.
That presumption, however, embeds premises about the organization of political and administrative authority. In Common law states those deep presumptions touch on the disciplinary role of judicial opinions as a constraint on judicial interpretation. In civil law states that discipline arises from the constraining principles of the legal codes themselves. In both systems, the legislatures serve as the ultimate check in a complex dialogue with courts. And all actors, that is all institutional political actors—administration, legislature and judiciary—and the people who serve them, are constrained by the principles set forth in the document that memorializes the constitution of state and government and the delegation of sovereign power thereto by the people. Both systems provide for judicial authority to interpret and apply this “higher law” to both ensure against abuse of judicial and legislative authority. The authority of the judge, and the cultural expectation on which legitimacy and authority are based, are themselves meant to underline and strengthen the underlying ideological basis of the system of which the form an important part. That, in turn, is possible only because of the underlying ideal of the judge within a government in which all political and administrative power is vested, and then divided.[8] As a consequence, it comes as no surprise that Western academic and political criticism reflects these views. The criticism tends to fall into two categories. The first is the technical and administrative: focusing on how to make the courts more efficient and independent and very much in line with the thrust of Chinese reform efforts. The second is institutional and political. These touch on the role of the CCP and the authority of courts to constrain the power of the state. And ultimately, they tend to function as a particular application of the not uncommon Western academic literature about the illegitimacy of the Chinese political order.[9]
But the issues have become more complicated in globalization, as the vertical organization of power within states is also fractured by horizontal alignments of judges across states. Judges talk to each other.[10] They begin to feel they have more in common with each other—theirs is a singular community—than perhaps with the other branches of the government in which their functions are embedded.[11] Convergence of practices may also produce convergence of sensibilities—of the nature, role and character of the courts whose practices are tending toward a common set of principles.[12] Judges may find it important to cultivate legitimacy among their own class, and to conform to global class expectations. This may affect the way they approach reform within their own political orders. As important, perhaps, the expectations of global classes of important consumers of judicial resources—repeat player litigants,[13] business and the state, will also likely help shape the underlying normative base line within which judicial reform is understood and assessed.[14] As a consequence, it comes as no surprise that Chinese reformers begin to reflect global perspective, even when seeking to embed them within the political culture of China.[15] And these convergences make it difficult to contextualize even basic concepts like judicial independence.[16]
The direction judicial reform will take in China cannot be predicted; yet, its contours are increasingly transparent, even as it is buffeted between internal and external normative expectations. In March, 2016, the Chinese State Council released a White Paper on Judicial Reform prepared by the Supreme People’s Court.[17] In the forward to its report, the Supreme Judicial Court announced the structures around which its analysis would emerge:
That structure reveals both the context and contradictions within which judicial reform proceeds in China.[20] Those presumptions may be incompatible with those of states developing Socialist Rule of Law structures within Party-State systems. In Socialist rule of law systems, the disciplinary systems are quite different and ought to produce a difference. Such systems are grounded in the political leadership of a vanguard party whose obligation to lead the state and people to a specified objective fundamentally orders the structures and operation of the state.[21] In China that has produced a system in which all political power is vested in the vanguard party and all administrative authority is exercised through the state and its organs. That division between political and administrative authority marks every level and every institutional structure of the state.[22]
Chinese judges are both looking to the West for innovation in the operation of their court system, and simultaneously seeking to induce change that is consistent with the fundamental Chinese political line.[23][GR1] Yet what is emerging is neither compatibility with Western notions of efficient operation nor a sense that technical reforms are compatible with the fundamental political ideology of the state and its working style[24]—and ultimately a challenge to the leadership role of the Chinese Communist Party itself. It reflects a dialectical model of inter-systemic engagement that tends to mark Chinese approaches to the foreign.[25]
One of the areas of critical importance in the enterprise of judicial reform is centered on the relationship between the judge and law. In more conventional terms, it focuses on the issue of the extent and practice of judicial interpretation of law, and with it the independence of the judge from the political and administrative organs of state in rendering a decision in an individual case. The two are interrelated—to resolve a case, a judge must first determine the meaning of law and then apply that meaning and the standards of liability that may be inferred from it, to the facts developed in the trial of the dispute among the litigants appearing before her. Within Chinese judicial reform initiatives, the Guiding Cases system[26] and the proposed rules on judicial independence are among the most important. The former seeks to harvest from Chinese rulings and judgments. “People’s courts at all levels should refer to the Guiding Cases release by the Supreme People’s Court when adjudicating similar questions.”[27]
This essay considers the way that the logic and grounding principles of Chinese Marxist Leninism may provide guidance in the construction of a judicial enterprise that is both true to its organizational logic and which enhances the authority of judges to serve litigants fairly. Part II considers in very broad strokes the relationship between the judge and law in the West. Within that constructed relationship the nature of judicial independence and the relationship between the judge and the state can be sketched—along with the ideology from which it emerges. Part III then considers Chinese reforms touching on the relationship between the judge and the law, and the evolution of normative structures within which one can speak to judicial independence. Part IV then considers the project from the perspective of the grounding ideology of the Chinese state. That consideration, in turn is based on a fundamental distinction, in Socialist Rule of Law systems, between the authority to interpret law and the authority to apply law to an individual case. From that fundamental distinction, the essay will propose a Socialist approach to the judicial function compatible with its own logic and legitimacy enhancing under global consensus principles for a well-organized and functioning judiciary. It is in the understanding of those distinctions that it is possible both the read the utility of Western models of judging in China, and to develop a means of realistically assessing the effectiveness of Chinese judicial reform within the constraints of its own ideological bases.
NOTES
[1] See generally, Taisu Zhang, The Pragmatic Court: Reinterpreting the Supreme People’s Court of China, 25 Colum. J. Asian L. 1 (2012); Benjamin L. Leibman, China's Courts: Restricted Reform, 21 Colum. J. Asian L. 1 (2007).
[2]Randall Peerenboom, China’s Long March Toward Rule of Law (Cambridge Univ. Press 2002); Teemu Ruskola, Law Without Law, or Is "Chinese Law" an Oxymoron?, 11 Wm. & Mary Bill Rts. J. 655 (2003),
[3]Susan Finder provides a good brief summary of the thrust of reform, focusing on jurisdiction (to reduce local protectionism), hearing centered process, changes to internal allocation of roles in proceedings, openness, transparency and accessibility of judicial proceedings, professionalization of court personnel, and insuring judicial independence while preserving the leadership role of the CCP. Susan Finder, China’s Master Plan for Remaking Its Courts, The Diplomat (March 26, 2015), http://thediplomat.com/2015/03/chinas-master-plan-for-remaking-its-courts/. Most of these address longstanding criticisms. See, Jerome A. Cohen, China’s Legal Reform at the Crossroads, Council on Foreign Relations (March 2006), http://www.cfr.org/china/chinas-legal-reform-crossroads/p10063. See also, Polly Botsford, China’s Judicial Reforms are No Revolution, International Bar Association (Aug. 10, 2016) http://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=846c87e8-a4aa-4a88-a7fc-e6fc136c2fca (“The changes improve governance, but do not challenge the foundation of the existing system, which is that the courts, the judiciary, must ultimately answer to the CPC.”).
[4] Zhang, supra note 1 (describing the emulation of stare decisis through the mechanisms of the introduced concept of guiding cases).
[5]E.g., Note, Chinese Common Law? Guiding Cases and Judicial Reform, 129 Harv. L. Rev. 2213 (2016),
[6] Leibman, supra note 1.
[7]Maurits Elen, Interview: Jerome Cohen, The Diplomat (Sept. 1, 2016), http://thediplomat.com/2016/09/interview-jerome-cohen/.
[8]Discussed in Larry Catá Backer, Reifying Law—Government, Law and the Rule of Law in Governance System, 26 Penn St. Int’l L. Rev. 521 (2008), http://www.backerinlaw.com/Site/wp-content/uploads/2013/02/Reifying-Law.pdf.
[9] See Lance L.P. Gore, The Political Limits to Judicial Reform in China, 2 chinese j. of comp. l. 213 (2014), discussed generally in Larry Catá Backer, The Rule of Law, The Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the “Three Represents”), Socialist Rule of Law, and Modern Chinese Constitutionalism, 16 Transnat’l L. & Contemp. Probs. 29 (2006).
[10]Press Release, Chinese Judges Meet with ALI, Am. L. Inst., (Jan. 11, 2016), https://www.ali.org/news/articles/chinese-judges-meet-ali/ (“A distinguished group from the Supreme Court of China, visiting the U.S., sought information about ALI and its law reform procedures.”); Press Release, First-Ever “U.S.-China Judicial Dialogue” Supports an Exchange of Views on Judicial Reform, U.S. Dept. of Justice, (Aug. 19, 2016), https://www.justice.gov/opa/blog/first-ever-us-china-judicial-dialogue-supports-exchange-views-judicial-reform (“Our three talented and experienced U.S. judges discussed with senior Chinese judges and other experts topics relevant to commercial cases, ranging from case management to evidence, expert witnesses, amicus briefs, the use of precedents and China’s system of “guiding cases.”).
[11]Anne-Marie Slaughter, A New World Order (Princeton University Press 2004); Cf. Jinting Deng, The Guiding Case System in Mainland China, 10 Frontiers L. China 1 (2015) (convergence of Chinese practices and common law system).
[12] Jocelyn E.H. Limmer, China’s New “Common Law”: Using China’s Guiding Cases to Understand How to Do Business in the People’s Republic of China, 21 willamette j. int’l l. & disp. resol. 96 (2013).
[13] The reference here is especially to the large multinational corporations, international banks, large financial entities, global state-owned enterprises that tend to engage in a larger volume of litigation around the same general issues. The importance of repeat players in litigation has been the object of useful study. For the germinal study, see Marc Galanter, Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc. Rev. 95 (1974); Marc Galanter, Afterword: Explaining Litigation, 9 Law & Soc. Rev. 347 (1975). For its application within and beyond the United States See generally., Flemming, Roy B. & Glen S. Krutz, Repeat Litigators and Agenda Setting on the Supreme Court of Canada, 35 Canadian J. of Pol. Sci. 811 (2002); McGuire, Kevin, Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success, 57 J. of Pol. 187 (1995); Stacia L. Haynie Kaitlyn L. Sill, Experienced Advocates and Litigation Outcomes: Repeat Players in the South African Supreme Court of Appeal, 60 Pol. Res. Q. 443 (2007).
[14] Cf. Marc Galanter, Why the “Haves” Come Out Ahead: Speculation on the Limits of Legal Change, 9 L. & Soc’y Rev. 95 (1974); Kevin T. McGuire, “Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success,” 57 J. Pol. 187 (1995).
[15] See, e.g., Stanley Lubman, China’s Highest Court Eyes Judicial Reform, While a Lawyer Criticizes TV Confession, Wall St. J. (March 11, 2016), http://blogs.wsj.com/chinarealtime/2016/03/11/chinas-highest-court-eyes-judicial-reform-while-a-lawyer-criticizes-tv-confessions/.
[16]Cf. Jerome Alan Cohen, The Chinese Communist Party and “Judicial Independence”: 1949–1959, 82 Harv. L. Rev. 967 (1969); Xin He, Judicial Independence in China 180 (Randall Peerenboom ed., 2010).
[17]White Paper: Judicial Reform of Chinese Courts, Supreme People’s Court of the People’s Republic of China (March 3, 2016), http://english.court.gov.cn/2016-03/03/content_23724636.html; for a summary, see What China’s judicial reform white paper says about its vision for its judiciary, Supreme People’s Court Monitor (April 12, 2016), available https://supremepeoplescourtmonitor.com/2016/04/12/what-chinas-judicial-reform-white-paper-says-about-its-vision-for-its-judiciary/.
[18] Id.
[19] See, John A. Ferejohn & Barry R. Weingast, A Positive Theory of Statutory Interpretation, 12 Int’l Rev. of L. & Econ. 263 (1992) (“Fundamentally, this implies that judicial interpretations – especially those that stand unchallenged—must be seen as reflecting the strategic setting in which they are announced, no matter how they are motivated or justified.”). I have noted as well that the judicial role in that political context makes inevitable that judicial interpretation will be severely disciplined where pronouncements tend to wander too far from the customs, traditions and expectations of the polity for which it is made. See ; Larry Catá Backer, Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture, 20 B.C. Third World L.J. 291, 340 (2000). (“Authority is measured by compliance.”).
[20] He, supra note 16 (antagonisms between courts and CCP).
[21] See Hu Angang, China’s Collective Presidency (Springer, 2014).
[22] Discussed in Larry Catá Backer, Party, People, Government and State: On Constitutional Values and Legitimacy of the Chinese State-Party Rule of Law System, 30 B.U. Int’l L.J. 331 (2012),
[23] Rebecca Liao, Judicial Reform in China, Foreign Affairs Snapshot (Feb. 2, 2017).
[24] San ba zuo feng. 三八作風; see, Gucheng Li, A Glossary of Political Terms of the People's Republic of China (Compiled by Kwok-Sing Li, Mary Lok, trans., The Chinese University of Hong Kong, 1995) p. 349. See infra Section III.
[25] Well described in the context of international law in Björn Ahl, Chinese Law and International Treaties, 39 Hong Kong L. J. 735, 737 (2009) (dialectical model of international law grounded in distinct systems infiltrating and supplementing each other).
[26] See Zuigao Renmin Fayuan Guanyu Anli Zhidao Gongzuo de Guiding (最高人民法院关于案例指导工作的规定) [Provisions of the Supreme People’s Court Concerning Work on Case Guidance] (discussed and passed by the Adjudication Committee of the Supreme People’s Court, Nov. 15, 2010, issued Nov. 26, 2010), https://cgc.law.stanford.edu/wp-content/uploads/sites/2/2015/08/guiding-cases-rules-20101126-english.pdf; 〈最高人民法院关于案例指导工作的规定〉实施细则》(Detailed Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on Case Guidance”), passed by the Adjudication Committee of the Supreme People’s Court on Apr. 27, 2015, issued on and effective as of May 13, 2015, China Guiding Cases Project, English Guiding Cases Rules, June 12, 2015 Edition, http://cgc.law.stanford.edu/guiding-cases-rules/20150513-english/.
[27]Provisions of the Supreme People’s Court Concerning Work on Case Guidance, supra note 26; see generally Chinese Common Law? Guiding Cases and Judicial Reform, 129 Harv. L. Rev. 2213 (2016).
Must judges have the independent authority to interpret the statutes and regulations they apply to disputes before them as a necessary element of the legitimate exercise of their authority? This essay argues that in China they do not. Judicial reform in China has emerged as one of the most important political, administrative and governance reform efforts of the last decade.[1] Judicial reform itself is deeply embedded within a larger discussion about the rule of law within the Chinese political and judicial systems.[2] Much of that reform has been technical, to make the institution of the judiciary better at producing results compatible with the larger political issues in China, from corruption to the training of judges and the management of dispute resolution.[3] Reform has been grounded in the attainment of pragmatic objectives. [4] But form follows ideology; always lurking is the specter of technical changes as the methodology of fundamental transformation of the political order.[5] Those tensions in the development of Chinese judicial reform were nicely summarized by Ben Liebman almost a decade ago at the beginning of the current waves of judicial reform.
Such reforms appear aimed at making the courts institutions for the fair adjudication of individual disputes. At the same time, commentators in China and in the West have argued for greater changes, contending that courts should serve not only as adjudicators of private disputes but also as checks on state power and as fora for the resolution of public rights––in sum, that the courts should play a significant role in the development of Chinese governance and society.[6]
The judgment has been made much more explicitly by other influential Western commentators: “today’s PRC legal system is basically a perversion of the European civil law system easily recognized by continental legal specialists. . . “Judicial independence,” as it is commonly understood outside China today, is the enemy and forbidden by Party rulers even to be discussed in law schools.”[7]
The problem, then, revolves around the ideological baggage of technical improvements modeled on or borrowed from political systems whose organization of state power are quite distinct from that of China. It is, as well the tensions inherent in the assessment of such changes, especially assessment from foreign peers—whose standards of assessment are themselves grounded in and meant to further, the ideological foundation from which they operate. In other words, it is impossible to separate the techniques of judging and judicial administration from the principles and politics that gave the system its form. To embrace one requires embrace of the other.
At the root of the problem are the premises on which judicial systems are founded and assessed. That is, the problem of judicial legitimacy and authority, the way such authority is perceived and maintained within a political system in which it is embedded haunts not merely the efforts at judicial reform in China, but the way in which foreigners approach the evaluation of those reforms as legitimate (and thus the exercise of judicial power as legitimate). These basic premises are so deeply embedded in Western political cultures that they appear natural. For example, it is a common place in the West, whether in Common Law or Civil Law states, that the integrity of the judiciary depends on their authority to interpret law and to apply that interpretation to individual cases and the litigants that appear before the courts. That authority to interpret and apply law to the disputes before them is to be exercised autonomously of other political actors and with a strict fidelity to the fundamental legal principles of the system.
That presumption, however, embeds premises about the organization of political and administrative authority. In Common law states those deep presumptions touch on the disciplinary role of judicial opinions as a constraint on judicial interpretation. In civil law states that discipline arises from the constraining principles of the legal codes themselves. In both systems, the legislatures serve as the ultimate check in a complex dialogue with courts. And all actors, that is all institutional political actors—administration, legislature and judiciary—and the people who serve them, are constrained by the principles set forth in the document that memorializes the constitution of state and government and the delegation of sovereign power thereto by the people. Both systems provide for judicial authority to interpret and apply this “higher law” to both ensure against abuse of judicial and legislative authority. The authority of the judge, and the cultural expectation on which legitimacy and authority are based, are themselves meant to underline and strengthen the underlying ideological basis of the system of which the form an important part. That, in turn, is possible only because of the underlying ideal of the judge within a government in which all political and administrative power is vested, and then divided.[8] As a consequence, it comes as no surprise that Western academic and political criticism reflects these views. The criticism tends to fall into two categories. The first is the technical and administrative: focusing on how to make the courts more efficient and independent and very much in line with the thrust of Chinese reform efforts. The second is institutional and political. These touch on the role of the CCP and the authority of courts to constrain the power of the state. And ultimately, they tend to function as a particular application of the not uncommon Western academic literature about the illegitimacy of the Chinese political order.[9]
But the issues have become more complicated in globalization, as the vertical organization of power within states is also fractured by horizontal alignments of judges across states. Judges talk to each other.[10] They begin to feel they have more in common with each other—theirs is a singular community—than perhaps with the other branches of the government in which their functions are embedded.[11] Convergence of practices may also produce convergence of sensibilities—of the nature, role and character of the courts whose practices are tending toward a common set of principles.[12] Judges may find it important to cultivate legitimacy among their own class, and to conform to global class expectations. This may affect the way they approach reform within their own political orders. As important, perhaps, the expectations of global classes of important consumers of judicial resources—repeat player litigants,[13] business and the state, will also likely help shape the underlying normative base line within which judicial reform is understood and assessed.[14] As a consequence, it comes as no surprise that Chinese reformers begin to reflect global perspective, even when seeking to embed them within the political culture of China.[15] And these convergences make it difficult to contextualize even basic concepts like judicial independence.[16]
The direction judicial reform will take in China cannot be predicted; yet, its contours are increasingly transparent, even as it is buffeted between internal and external normative expectations. In March, 2016, the Chinese State Council released a White Paper on Judicial Reform prepared by the Supreme People’s Court.[17] In the forward to its report, the Supreme Judicial Court announced the structures around which its analysis would emerge:
The rule of law is the basic way of governing a country and the judiciary is the significant cornerstone of the rule of law system. Judicial courts apply laws to adjudicate cases in accordance with their statutory powers and procedures and play such roles as settling disputes, protecting rights and constraining public powers, so as to ensure the effective implementation of laws and maintain social fairness and justice.[18]The White Paper comes on the heels of a series of reforms accelerating since 2013 that have focused on judicial reform without directly challenging the political premises on which the underlying system is grounded.[19] But the reluctance to challenge the underlying political system as a formal matter does not mean that the effect of reforms is not potentially transformative by the nature of its character.
That structure reveals both the context and contradictions within which judicial reform proceeds in China.[20] Those presumptions may be incompatible with those of states developing Socialist Rule of Law structures within Party-State systems. In Socialist rule of law systems, the disciplinary systems are quite different and ought to produce a difference. Such systems are grounded in the political leadership of a vanguard party whose obligation to lead the state and people to a specified objective fundamentally orders the structures and operation of the state.[21] In China that has produced a system in which all political power is vested in the vanguard party and all administrative authority is exercised through the state and its organs. That division between political and administrative authority marks every level and every institutional structure of the state.[22]
Chinese judges are both looking to the West for innovation in the operation of their court system, and simultaneously seeking to induce change that is consistent with the fundamental Chinese political line.[23][GR1] Yet what is emerging is neither compatibility with Western notions of efficient operation nor a sense that technical reforms are compatible with the fundamental political ideology of the state and its working style[24]—and ultimately a challenge to the leadership role of the Chinese Communist Party itself. It reflects a dialectical model of inter-systemic engagement that tends to mark Chinese approaches to the foreign.[25]
One of the areas of critical importance in the enterprise of judicial reform is centered on the relationship between the judge and law. In more conventional terms, it focuses on the issue of the extent and practice of judicial interpretation of law, and with it the independence of the judge from the political and administrative organs of state in rendering a decision in an individual case. The two are interrelated—to resolve a case, a judge must first determine the meaning of law and then apply that meaning and the standards of liability that may be inferred from it, to the facts developed in the trial of the dispute among the litigants appearing before her. Within Chinese judicial reform initiatives, the Guiding Cases system[26] and the proposed rules on judicial independence are among the most important. The former seeks to harvest from Chinese rulings and judgments. “People’s courts at all levels should refer to the Guiding Cases release by the Supreme People’s Court when adjudicating similar questions.”[27]
This essay considers the way that the logic and grounding principles of Chinese Marxist Leninism may provide guidance in the construction of a judicial enterprise that is both true to its organizational logic and which enhances the authority of judges to serve litigants fairly. Part II considers in very broad strokes the relationship between the judge and law in the West. Within that constructed relationship the nature of judicial independence and the relationship between the judge and the state can be sketched—along with the ideology from which it emerges. Part III then considers Chinese reforms touching on the relationship between the judge and the law, and the evolution of normative structures within which one can speak to judicial independence. Part IV then considers the project from the perspective of the grounding ideology of the Chinese state. That consideration, in turn is based on a fundamental distinction, in Socialist Rule of Law systems, between the authority to interpret law and the authority to apply law to an individual case. From that fundamental distinction, the essay will propose a Socialist approach to the judicial function compatible with its own logic and legitimacy enhancing under global consensus principles for a well-organized and functioning judiciary. It is in the understanding of those distinctions that it is possible both the read the utility of Western models of judging in China, and to develop a means of realistically assessing the effectiveness of Chinese judicial reform within the constraints of its own ideological bases.
NOTES
[1] See generally, Taisu Zhang, The Pragmatic Court: Reinterpreting the Supreme People’s Court of China, 25 Colum. J. Asian L. 1 (2012); Benjamin L. Leibman, China's Courts: Restricted Reform, 21 Colum. J. Asian L. 1 (2007).
[2]Randall Peerenboom, China’s Long March Toward Rule of Law (Cambridge Univ. Press 2002); Teemu Ruskola, Law Without Law, or Is "Chinese Law" an Oxymoron?, 11 Wm. & Mary Bill Rts. J. 655 (2003),
[3]Susan Finder provides a good brief summary of the thrust of reform, focusing on jurisdiction (to reduce local protectionism), hearing centered process, changes to internal allocation of roles in proceedings, openness, transparency and accessibility of judicial proceedings, professionalization of court personnel, and insuring judicial independence while preserving the leadership role of the CCP. Susan Finder, China’s Master Plan for Remaking Its Courts, The Diplomat (March 26, 2015), http://thediplomat.com/2015/03/chinas-master-plan-for-remaking-its-courts/. Most of these address longstanding criticisms. See, Jerome A. Cohen, China’s Legal Reform at the Crossroads, Council on Foreign Relations (March 2006), http://www.cfr.org/china/chinas-legal-reform-crossroads/p10063. See also, Polly Botsford, China’s Judicial Reforms are No Revolution, International Bar Association (Aug. 10, 2016) http://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=846c87e8-a4aa-4a88-a7fc-e6fc136c2fca (“The changes improve governance, but do not challenge the foundation of the existing system, which is that the courts, the judiciary, must ultimately answer to the CPC.”).
[4] Zhang, supra note 1 (describing the emulation of stare decisis through the mechanisms of the introduced concept of guiding cases).
[5]E.g., Note, Chinese Common Law? Guiding Cases and Judicial Reform, 129 Harv. L. Rev. 2213 (2016),
[6] Leibman, supra note 1.
[7]Maurits Elen, Interview: Jerome Cohen, The Diplomat (Sept. 1, 2016), http://thediplomat.com/2016/09/interview-jerome-cohen/.
[8]Discussed in Larry Catá Backer, Reifying Law—Government, Law and the Rule of Law in Governance System, 26 Penn St. Int’l L. Rev. 521 (2008), http://www.backerinlaw.com/Site/wp-content/uploads/2013/02/Reifying-Law.pdf.
[9] See Lance L.P. Gore, The Political Limits to Judicial Reform in China, 2 chinese j. of comp. l. 213 (2014), discussed generally in Larry Catá Backer, The Rule of Law, The Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the “Three Represents”), Socialist Rule of Law, and Modern Chinese Constitutionalism, 16 Transnat’l L. & Contemp. Probs. 29 (2006).
[10]Press Release, Chinese Judges Meet with ALI, Am. L. Inst., (Jan. 11, 2016), https://www.ali.org/news/articles/chinese-judges-meet-ali/ (“A distinguished group from the Supreme Court of China, visiting the U.S., sought information about ALI and its law reform procedures.”); Press Release, First-Ever “U.S.-China Judicial Dialogue” Supports an Exchange of Views on Judicial Reform, U.S. Dept. of Justice, (Aug. 19, 2016), https://www.justice.gov/opa/blog/first-ever-us-china-judicial-dialogue-supports-exchange-views-judicial-reform (“Our three talented and experienced U.S. judges discussed with senior Chinese judges and other experts topics relevant to commercial cases, ranging from case management to evidence, expert witnesses, amicus briefs, the use of precedents and China’s system of “guiding cases.”).
[11]Anne-Marie Slaughter, A New World Order (Princeton University Press 2004); Cf. Jinting Deng, The Guiding Case System in Mainland China, 10 Frontiers L. China 1 (2015) (convergence of Chinese practices and common law system).
[12] Jocelyn E.H. Limmer, China’s New “Common Law”: Using China’s Guiding Cases to Understand How to Do Business in the People’s Republic of China, 21 willamette j. int’l l. & disp. resol. 96 (2013).
[13] The reference here is especially to the large multinational corporations, international banks, large financial entities, global state-owned enterprises that tend to engage in a larger volume of litigation around the same general issues. The importance of repeat players in litigation has been the object of useful study. For the germinal study, see Marc Galanter, Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc. Rev. 95 (1974); Marc Galanter, Afterword: Explaining Litigation, 9 Law & Soc. Rev. 347 (1975). For its application within and beyond the United States See generally., Flemming, Roy B. & Glen S. Krutz, Repeat Litigators and Agenda Setting on the Supreme Court of Canada, 35 Canadian J. of Pol. Sci. 811 (2002); McGuire, Kevin, Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success, 57 J. of Pol. 187 (1995); Stacia L. Haynie Kaitlyn L. Sill, Experienced Advocates and Litigation Outcomes: Repeat Players in the South African Supreme Court of Appeal, 60 Pol. Res. Q. 443 (2007).
[14] Cf. Marc Galanter, Why the “Haves” Come Out Ahead: Speculation on the Limits of Legal Change, 9 L. & Soc’y Rev. 95 (1974); Kevin T. McGuire, “Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success,” 57 J. Pol. 187 (1995).
[15] See, e.g., Stanley Lubman, China’s Highest Court Eyes Judicial Reform, While a Lawyer Criticizes TV Confession, Wall St. J. (March 11, 2016), http://blogs.wsj.com/chinarealtime/2016/03/11/chinas-highest-court-eyes-judicial-reform-while-a-lawyer-criticizes-tv-confessions/.
[16]Cf. Jerome Alan Cohen, The Chinese Communist Party and “Judicial Independence”: 1949–1959, 82 Harv. L. Rev. 967 (1969); Xin He, Judicial Independence in China 180 (Randall Peerenboom ed., 2010).
[17]White Paper: Judicial Reform of Chinese Courts, Supreme People’s Court of the People’s Republic of China (March 3, 2016), http://english.court.gov.cn/2016-03/03/content_23724636.html; for a summary, see What China’s judicial reform white paper says about its vision for its judiciary, Supreme People’s Court Monitor (April 12, 2016), available https://supremepeoplescourtmonitor.com/2016/04/12/what-chinas-judicial-reform-white-paper-says-about-its-vision-for-its-judiciary/.
[18] Id.
[19] See, John A. Ferejohn & Barry R. Weingast, A Positive Theory of Statutory Interpretation, 12 Int’l Rev. of L. & Econ. 263 (1992) (“Fundamentally, this implies that judicial interpretations – especially those that stand unchallenged—must be seen as reflecting the strategic setting in which they are announced, no matter how they are motivated or justified.”). I have noted as well that the judicial role in that political context makes inevitable that judicial interpretation will be severely disciplined where pronouncements tend to wander too far from the customs, traditions and expectations of the polity for which it is made. See ; Larry Catá Backer, Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture, 20 B.C. Third World L.J. 291, 340 (2000). (“Authority is measured by compliance.”).
[20] He, supra note 16 (antagonisms between courts and CCP).
[21] See Hu Angang, China’s Collective Presidency (Springer, 2014).
[22] Discussed in Larry Catá Backer, Party, People, Government and State: On Constitutional Values and Legitimacy of the Chinese State-Party Rule of Law System, 30 B.U. Int’l L.J. 331 (2012),
[23] Rebecca Liao, Judicial Reform in China, Foreign Affairs Snapshot (Feb. 2, 2017).
[24] San ba zuo feng. 三八作風; see, Gucheng Li, A Glossary of Political Terms of the People's Republic of China (Compiled by Kwok-Sing Li, Mary Lok, trans., The Chinese University of Hong Kong, 1995) p. 349. See infra Section III.
[25] Well described in the context of international law in Björn Ahl, Chinese Law and International Treaties, 39 Hong Kong L. J. 735, 737 (2009) (dialectical model of international law grounded in distinct systems infiltrating and supplementing each other).
[26] See Zuigao Renmin Fayuan Guanyu Anli Zhidao Gongzuo de Guiding (最高人民法院关于案例指导工作的规定) [Provisions of the Supreme People’s Court Concerning Work on Case Guidance] (discussed and passed by the Adjudication Committee of the Supreme People’s Court, Nov. 15, 2010, issued Nov. 26, 2010), https://cgc.law.stanford.edu/wp-content/uploads/sites/2/2015/08/guiding-cases-rules-20101126-english.pdf; 〈最高人民法院关于案例指导工作的规定〉实施细则》(Detailed Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on Case Guidance”), passed by the Adjudication Committee of the Supreme People’s Court on Apr. 27, 2015, issued on and effective as of May 13, 2015, China Guiding Cases Project, English Guiding Cases Rules, June 12, 2015 Edition, http://cgc.law.stanford.edu/guiding-cases-rules/20150513-english/.
[27]Provisions of the Supreme People’s Court Concerning Work on Case Guidance, supra note 26; see generally Chinese Common Law? Guiding Cases and Judicial Reform, 129 Harv. L. Rev. 2213 (2016).
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