Growing out of a 2007 conference, this edited paperback volume aims to change scholars’, practitioners’, and international judicial reform organizations’ thinking about judicial independence in China. It constitutes, in the best sense of the word, a polemic. The introduction and two essays by Randall Peerenboom, one sole-authored and one co-authored with University of Beijing Law School's Yulin Fu, present Peerenboom's basic premises: most assumptions about judicial independence are wrong; most critiques fail to comprehend the complexities of China and other authoritarian states; any legal reform focused on judicial independence will likely fail unless it takes better account of the realities on the ground.
Not every contribution adopts this framework, and some challenge it. Indeed, the book opens with Keith Henderson's articulation of Global Judicial Integrity Principles and discussion of how to apply them to China. By contrast, Antoine Garapon argues that Henderson's approach not only ignores the reality that interest groups engage in sharp political struggle over these standards but also eschews engagement with cultural differences and the inextricable link between them and politics.
Peerenboom's first essay emphasizes that judicial independence comprises multiple forms (collective, internal, external, personal, and decisional) that need unpacking and argues that increasing decisional independence has made courts attractive neutral forums for resolving disputes. Though Zhu Suli sees political interference in Chinese courts as an inevitable historical artifact of the Chinese Communist Party's creation of the State, Peerenboom's “new analytic framework” deemphasizes the role and influence of the Party. To demonstrate this point, he and Fu chart the sources of interference in cases ranging from the purely political through the politically sensitive socio-economic, criminal, and ordinary civil cases. On their face, these typologies make sense, but both they and some of the accompanying assertions—e.g. that little systemic interference occurs in civil cases—would have been more cogent had the authors provided more specific supporting evidence.
The volume's detailed, engaging case studies of courts broaden this volume's appeal beyond the specialist to the general reader. Nico Howson draws from his unique database of corporate cases to show how Shanghai courts found in the 2006 revision of the Company Law new bases and authority to act with an unprecedented “degree of expertise and autonomy” (p. 136). Yet, as Howson deftly demonstrates, while courts generally supported the non-party/non-state side even in cases with “discernible political interests,” the courts nonetheless chose their battles carefully, adroitly avoiding cases either involving state-owned listed companies or likely to produce decisions that potentially could adversely affect social stability and thus generate problems for the party/state. Minxin Pei and his co-authors find a similarly mixed situation in Shanghai commercial litigation: courts staffed largely by competent judges but nonetheless facing difficulties enforcing their judgments even in the absence of party/state interests and a nagging perception by some individual litigants of judges’ and thus outcomes’ susceptibility to influence-peddling. The various forms of corruption Ling Li revealingly details so pervade the courts that he concludes reform efforts should focus more on judicial integrity than on independence.
Yet, as Stéphanie Balme's and Xin He's essays illustrate, judicial independence and integrity depend heavily on the political/administrative, professional, and economic resources at a court's disposal. Balme underscores that the Judges Law accords independence to courts, not to individual judges; however, Balme and He delineate how in Gansu and Shaanxi as well as Guangdong, respectively, courts as institutions must assume a political role that requires contributing to social harmony and stability. With no professional reference group and utterly dependent on local administrative systems, grassroots judges in the west turn to the state as patron and as protector of their “dignity,” prestige, and independence against monied, powerful locals who seek to corrupt and interfere in the process. By contrast, the higher paid, better trained, more professional judges in Guangdong (and Shanghai) can carve out political and administrative space in which to maneuver and achieve a measure of autonomy, or as He's title puts it, “to push back.” Knowing that they lacked the resources to forge and enforce effective remedies and fearing a loss of their legitimacy if they made unenforceable decisions on the basis of muddled legislation, Guangdong courts resisted pressure to resolve the fraught cases of married-out women seeking a share of the compensation that their natal villages received in return for takings of collective land and generated a multivalent compromise approach.
Overview essays by Carlo Guarnieri on judicial independence in the authoritarian regimes of central Europe and Tom Ginsburg on judicial independence in East Asia close the volume. Asserting that judicial independence can exist without democracy, Ginsburg argues, as Howson and Pei show, that authoritarian regimes give courts the most latitude in the economic sphere because it requires predictability and because court decisions there pose less threat to their core policies. If courts sought to expand their circumscribed independence and exercise judicial review, observes Guarnieri, they would be reversed and thus diminished in prestige and legitimacy. In authoritarian regimes, he concludes, courts should limit themselves to supporting the “thin” version of rule of law and focus solely on upholding the principle of legality.
On this point, Guarnieri echoes a provocative argument in Peerenboom and Fu, as well as in He: courts’ failure to provide effective remedies for parties (especially in socio-economic matters) undermines “trust and confidence” in the judiciary; thus, having such questions processed in non-judicial venues might better serve the interests of litigants and courts alike. Indeed, recent scholarship in China suggests that courts’ unsuccessful attempts to address essentially non-justiciable cases promote recourse to the alternative path of petitioning. As Xin He dryly observes, courts may not always want judicial independence. Whatever one's view of these issues, this volume will doubtlessly stimulate debate and new research.
