The state of China’s judicial system is a question of both national and global importance: Chinese citizens seek redress against injustices from Chinese courts, and criminal defendants wait for judges to determine – or, more accurately, formally declare – their fate. Beyond China’s borders, judges in faraway jurisdictions decide whether Chinese court verdicts should be enforced outside China. Foreign judges also assess the fairness of Chinese courts when weighing whether to extradite alleged criminals back to China.
In his important new book, The Judicial System of China, legal scholar Xin He argues that questions of judicial independence and rights protection, while important, are not the best way to understand the judiciary’s day-to-day work. Instead, he persuasively argues, we should study the court system on its own terms: as a key governing tool for the Chinese Communist Party, one whose main job is policy implementation. In particular, the courts help maintain social stability. Judges handle cases in line with this core task.
This approach has much to recommend it. Rather than measuring the courts against a rule-of-law metric that the Party has never pursued, it leads to a deeper set of questions: why does the Party view control over the courts as fundamental to its monopoly on power? How do the courts manage tensions between implementing laws and their mandate to uphold Party leadership? And how do they interact with other parts of the state bureaucracy?
In answering these and other key questions, Xin He provides a comprehensive and insightful overview of the court system, including the structure and jurisdiction of the courts, the roles and incentives of judges and lawyers, the still-massive petition system, civil litigation, criminal justice and administrative litigation.
As Xin He makes clear, the courts are not independent. Instead, they implement key Party policy directives and protect the Party from real and perceived enemies. Often, judges don’t need to seek guidance from above in sensitive cases. “When the regime’s interests are at risk, judges know what to do,” Xin He writes (p. 3). As a result, it is better to view rights in the Chinese context not as iron-clad guarantees protected by law, but rather as “conditional privileges” that can be taken away at any time (p. 5).
Because the Party’s needs have evolved over time, the courts have themselves been continuously reshaped and reformed to better meet those needs. Prior to Xi Jinping’s tenure, the courts ping-ponged between building up formal dispute resolution mechanisms and channelling cases into a highly coercive form of mediation. Xin He’s sympathies clearly lie with earlier formalist reforms: he deems many of the mediation-based reforms to be “ineffective” (p. 29). He also argues that the shift to mediation created a “legitimacy crisis” for the courts, which became vulnerable to public pressure campaigns geared toward winning bigger payouts.
What came next was not a return to formalism, but instead a push by Xi Jinping to centralize control over the judiciary. The Judicial System of China is excellent on Xi’s far-reaching 2014 judicial reform package. Xi moved local court funding up to the provincial level, thus ending the budget-based leverage that local governments had over the courts. Newly created circuit courts, not directly tied to either local or provincial governments, were similarly less beholden to government officials on lower rungs. The 2014 reforms also reduced the role of the adjudication committee, a court-level mechanism that took decision-making power out of the hands of individual judges and enhanced the authority of more senior court officials.
These moves were not meant to end all political influence over judicial decision-making. Instead, they were an effort to better enhance Beijing’s control over a sprawling judiciary. As Xin He points out, the CCP leadership sees certain forms of political influence as completely legitimate. It only seeks to end certain kinds of influence – including local protectionism and local corruption – that undercut the Party’s own interests, including its political legitimacy.
Party control over the court system also shapes how other players do their jobs. Lawyers, for example, have a very limited role: their ability to advocate on behalf of their clients, and to influence judicial outcomes, is highly circumscribed. In criminal cases, in which outcomes are pre-determined, and not guilty verdicts are almost non-existent, the role of the lawyer is less to advocate on behalf of her client, and more to ensure the smooth and effective functioning of the system. Xin He notes that a good defence lawyer can sometimes influence the court’s sentencing decision. But in general, he deems the role of lawyers as “simply insignificant” (p. 95).
For all these flaws, the system has a number of strengths. It is extremely efficient, for example, delivering a high volume of verdicts in a relatively short period of time. Compared with leading Western systems, where cases can stretch on for years, the Chinese court system is lightning fast, usually delivering a verdict within the system-mandated window of three to six months.
The judiciary has also fixed some key shortcomings: the enforcement of judgments, long viewed as a serious problem, has now been addressed. Death penalty reforms have significantly reduced the number of executions per year and have also dealt with the horrific problem of wrongful convictions in capital cases.
Still, the overall portrait painted by Xin He is a deeply mixed one. I found myself asking: who does the judicial system really work for? Judges are impossibly overworked, handing down as many as 400 decisions per year. They must also defend the Party’s interests, even when doing so means abandoning their commitment to the law. Many lawyers may also be dissatisfied: they trade less on technical expertise, and more on their relationships with judges and prosecutors. The public continues to view the courts with scepticism, ranking them very low in public opinion surveys.
For its part, the Party maintains its control over the system and uses it to protect social stability. By design, the courts are an engine of the status quo. But does further entrenchment of a stale status quo create risks for the Party? Are there other judicial approaches that might prod the Party to embrace much-needed changes?
For a brief period, the courts served as limited vehicles for innovation, pushing legal and policy reform ideas that sometimes won Party approval (see e.g. Thomas E. Kellogg, “‘Courageous explorers’? Education litigation and judicial innovation in China,” Harvard Human Rights Journal 20 [2007], pp. 141–188). As China under Xi Jinping adopts a more conservative and Party-centric approach to governance, courts are less able play this role. Over time, this may be seen less as a blessing, and increasingly as yet another contributing factor to growing sclerosis, stagnation and malaise.
This book will be an invaluable resource for several different audiences: it is a useful overview for younger scholars of Chinese law who are building up their core knowledge of the field. It will also be read by scholars in other disciplines whose work touches on the day-to-day functioning of the legal system. And it will be a key resource for scholars of comparative authoritarianism, helping them to better understand how the CCP uses and adapts its mechanisms of state control to maintain its grip on power, now well into its eighth decade.
