An important part of any legal system is its courts. Yet our understanding of the Chinese legal system, despite the abundance of information in some areas, has been critically hampered by the near-impenetrability of Chinese courts. For non-Chinese scholars, access to their operations is difficult, and unfiltered access impossible. Even Chinese scholars must often be content with interviews with judges contacted through personal connections instead of data that satisfies the most rigorous standards of social science investigation.
If Kwai Hang Ng and Xin He have not completely solved this problem – and nobody can, barring fundamental political reform in China – they have certainly come much closer than anyone else in Embedded Courts, a superlative study based on impressive access to written records and many years of fieldwork, including observation and interviews. The book's premise is that understanding Chinese courts requires understanding their “intimate, delicate and complex relationships” with the Party-state and with society more broadly. That might seem self-evident. But the authors then provide a rich account of just what those relationships are and how they explain court behaviour.
In particular, the authors argue that Chinese courts are highly heterogeneous and cannot be successfully analysed as a homogeneous system. They posit two ideal types of courts – the court as a traditional socialist work unit (danwei) and the court as a firm – and explain what kinds of environment tend to produce what kind of court. Work-unit courts prioritize tight vertical control over efficiency, and are an integral part of the “local coalition of governance.” They function in effect as just another government administrative organ. Firm-type courts pay attention to cost-revenue calculations. They exhibit a weaker hierarchy, a higher caseload, and more use of law in their decision-making. Their judges see themselves as professionals in a wider realm of law, not as lifetime employees of a work unit.
Nevertheless, the system does exhibit some overall features. All courts are administratively embedded, meaning that there is “a high degree of selfsameness between the court and other government bureaus in the decision-making process. Important judicial decisions in China are at least partly based upon some assessment of non-legal factors” (p. 17). Throughout the system, “[a]dministrative calculations are an integral part of the judicial decision-making process. When deciding a case, the court does not simply apply legal rules. In many cases, the following of legal rules is not the primary consideration” (p. 120). Instead, “[t]he driving motivation for an internal vetting of a pending decision is risk management” (p. 94).
Consider just the appeal process. In the United States, as a case goes higher in the system, the issues considered by the decision-makers become narrower. Factual issues are not (at least formally) reconsidered at all, and any case that gets as far as the Supreme Court typically turns on only one narrow issue. In China, the opposite is true. As cases go up in the system, the decision-makers consider more and more factors, and it is a feature, not a bug, of the system that they should do so – after all, being higher up in the administrative hierarchy, they have a more comprehensive view than officials below them.
The authors also observe that while in a liberal democratic judicial model, the law and the rules governing the application of law govern what is to be done regardless of who makes the decision, in an administrative bureaucracy (such as the kind they see operating in Chinese courts), rules are applied more to determine who should be in charge of making the decision than to what the content or procedure of the decision should be.
This book is not just for students of the Chinese legal system. It is indispensable for anyone who wants to understand China's politics and governance. Moreover, it also contributes significantly to the literature on comparative legal institutions. The authors’ fieldwork and interviews lend the book an empirical richness that make it an excellent complement to more theoretical work such as Mirjan Damaška's The Faces of Justice and State Authority (Yale University Press, 1986).
The book's engaging style, together with its felicitous mix of theory and true-life stories, make it an excellent choice for university courses concerned with governance in China. This is one of the finest books on the Chinese legal system to come out in many years, and it deserves a wide audience.
