The Application of Law as a Key to Understanding Judicial Independence

Abstract

Judges across China recently declined to apply a law that the National People’s Congress had newly brought into effect. In this article, I describe this startling finding and explore the significance of it. I conclude that it represents an exercise of judicial independence. Using a thickly descriptive approach that focuses on textual analysis and institutional context, I demonstrate that judges in China have no legal duty to apply law and that it is professionally risky for them to apply law; that judges there operate within a professional culture that encourages restraint; and that the court system has developed a strong set of internal rules that encourage reference to judge-made rules rather than to external rules such as those enacted by legislative or executive bodies. I further argue that the topic of judicial independence is important not just for countries outside the United States, but for the United States as well, and that a framework developed from a broadly comparative perspective is the best approach for understanding judicial independence in China, and, likewise, in the United States. Understanding judicial independence in China is important for myriad reasons. It is a gauge of the robustness of the rule of law in China. It is an important proving-ground for judicial independence as a universal phenomenon. It adds perspectives from China to the comparative law literature on judges. It is a bell-weather of the kind of decentralization of authority that famously marks China’s post-Mao government. There is no question that the courts of China were enlisted to play a role in the larger governmental initiatives of the past century. Its courts garnered respect for the People’s Republic of China’s legal system, which in turn helped China participate as an equal in the international legal order, as well as the international economic system. With judicial independence, there is no escaping the fact that to understand it is to measure it. This is because it would be false and misleading to believe that either you have it or you don’t. Each country’s, each county’s, each judge’s independence is affected by a complex of circumstances around it that vary over time. Some of these circumstances are institutional, some are cultural, and some are the products of chance and human agency. Care is needed when framing the measuring project. If we choose to view the degree of judicial independence as arraying itself along a spectrum, then we need