Twofish's Blog

December 22, 2006

What do we mean by judicial independence in China?

Filed under: china, law — twofish @ 2:21 am

I thinking about a discussion I had about judicial independence in China, and it occurred to me that people mean two different things when they talk about judicial independence.  One is the idea of “judicial impartiality” which is the idea that judges should interepret and apply Chinese law impartially.  The second is the idea of “judicial oppositionism” which is the idea that the judiciary should develop into a independent branch of government which reduces the power of the executive, legislature, and the Party.

The first I think is a good idea, but the second definition of judicial oppositionism is problematic in a number of areas.  Lets suppose someone holds a demonstration calling for the overthrow of the Communist Party.  This is clearly state subversion under the Chinese criminal code.  Under the theory of “judicial impartiality” the judge would have no real choice but to send the person to jail regardless of what their feelings were on the matter.  Under the “judicial oppositionist” meaning of judicial independence, there is perhaps the hope that the judiciary would challenge and limit the rule of the Party.

The judicial oppositionist approach would see the judiciary in China playing the same role as the judiciary in England in limiting the power of the king.  However, I would argue that the role of the judiciary in England was only part of a larger story, and there is no particular reason to believe that having an “oppositionist judiciary” would end up on the side of the “good guys” in China.

The bigger problem with the idea of judicial oppositionism in China is the question “if the judiciary does not apply the laws as written, then what laws does it apply.”  Unlike the United States, the Constitution of the PRC pretty explicitly has provisions which justify and legitimize putting our hypothetical protester in jail.  There is no historical “Fundamental Laws of England” for the judiciary to fall back on.  This leaves some theory of natural law which the judiciary should advance.  The trouble with that is “which natural law?”  Much of the reason that PRC got into the mess that it is in now was because governmental decisions were made by appealing to the “natural and scientific laws of Marxist-Leninist-Maoism.”  Part of the solution to “which natural law” seems to an appeal to “international standards” but that opens the question of who sets international standards, and what happens if you don’t agree with them.  Also, like many countries, when “international standards” hits “national interest,” “international standards” loses.

My personal opinion is that I really do believe that courts in the PRC will develop better if they stick to interpreting the law as written (even if it is written badly) than trying to appeal to some higher law.   Ultimately, I don’t think that the problem of bad laws is a problem that should be solved in the judiciary but rather in the legislature.

One final point.  There is a tendency to trivialize a lot of the fundamental questions involve Chinese legal reform.  The idea is that obviously the PRC system of government is a mess, and so how to improve it should be obvious.  You just wave a magic wand, get rid of the bad people, and poof, you’ll have a perfect government.

What I think is missing is a sense of how many options and open issues there are.  There is no lack of debate on the role of a judiciary in developed nations (i.e. the judicial activist versus judicial restraint debate).  What is missing I think is a realization that some of these issues are connected, and many of the issues that China faces are part of deeper debates, which have hardly been resolved in the West.  Managing and progressing in these debates requires some clarity in what we mean, and this includes clarifying what we mean by terms like judicial independence.



  1. Judicial independence = oppositionist (sic) judiciary? I’m confused.

    Surely judicial independence refers to the ability of the courts to act without influence from non-judicial powers (in this case the CCP). This is different from what you describe as judicial impartiality, and very different from opportunism. Is what you call judicial oppositionist not really judicial activism?

    Interesting post non-the-less.

    Comment by random — March 20, 2009 @ 6:57 am

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    Comment by khadar mahamed — April 19, 2009 @ 10:46 pm

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