Judicial Independence in China: Common Myths and Unfounded Assumptions

Abstract

The Chinese judiciary is regularly criticized for 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 institutions and practices found in advanced Western states known for rule of law. Surrounding these views is a set of common myths and unfounded assumptions. The first assumption is substantive: 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 more independence better. The fifth assumption is that 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 main source of interference with 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 lack of judicial independence or impossibility of achieving judicial independence in a single party state fail to capture 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 subcomponents of judicial independence in turn, reserving a discussion of main external constraints on judicial independence for Part III. Part IV discusses implications of China's efforts to increase judicial independence for law and development movement, including observations about methodology and relationship between regime type and judicial independence. Part V concludes with some recommendations on how to address related problems of judicial corruption and judicial independence.