by Randall Peerenboom (ed.). New York: Cambridge University Press, 2010. 272pp. Hardback. £55.00/$90.00. ISBN: 9780521190268. £19.99/$33.99. Paperback. ISBN: 9780521137348. eBook. $27.00. ISBN: 9780511656118.
Reviewed by Michael W. Dowdle, National University of Singapore Faculty of Law. E-mail: lawmwd [at] nus.edu.sg.
“Judicial independence” is a difficult metaphor. No effective judiciary is truly independent. Judicial effectiveness relies more on interdependence than on independence per se. Of course, when looking at familiar constitutional systems, this distinction – between independence and interdependence – is obscured by our cozy familiarities. In the United States, for example, we celebrate the effects of life-time tenure, but ignore those of the political vetting processes that take place prior to nomination.
All in all, however, our judicial system works, and that alone appears sufficient to give us confidence in the ultimate independence of our judiciary. But problems arise when we apply this metaphor to what we might call “alien” constitutional systems – constitutional environments whose fundamental organization is incompatible with our constitutional presumptions. Here, the relationship between constitutional structure and constitutional consequent are often complicated by the presence of unfamiliar social dynamics that are unaccounted for by the standard constitutional anticipations that derive from our own understandings of our own constitutional systems. Understanding these alien systems requires us to approach them as distinctive systems in their own right, and not as simply ersatz reproductions of our own.
This is what Randall Peerenboom’s edited volume, JUDICIAL INDEPENDENCE IN CHINA: LESSONS FOR GLOBAL RULE OF LAW PROMOTION, does in the context of the People’s Republic of China [PRC]. The PRC’s is clearly an alien constitutional structure, as we defined the term above. It is not founded on multi-party, democratic elections. It does not, for the most part, work to limit governmental power or to protect the politically vulnerable. It does not revolve around an ultimate intention to preserve one’s exercise and enjoyment of those liberal rights that many regard as fundamental to being “human.” It affirmatively rejects the concept of “separation of powers” as a foundational organizing principle.
And relatedly, China’s constitutional system – if one even dares call it that – is routinely if not invariably seen as one in which the judiciary is not meaningfully “independent.” But what does that mean? What would or should judicial independence look like in the context of China’s constitutional system? What would or should it contribute to that system? These are questions that have rarely been asked – because we have [*596] tended to presume that their answers are the same with regards to China as they are with regards to the mature constitutional systems of the advanced industrialized democracies of the North Atlantic. Peerenboom’s volume suggests that this presumption is fallacious.
Although the volume itself is not sectioned, its contributions generally divide themselves into three groupings. The first three substantive chapters of the volume focus primarily on examining – and in the main problematizing – the idea of judicial independence itself. These are followed by six chapters that look at various aspects of judicial performance in China and relate these aspects to the notions judicial independence. Collectively, this middle set of chapters show that judicial performance in China is not only much more complicated than is typically captured by that particular metaphor, but that the uncritical application of the independence metaphor to the Chinese judiciary in at least some of these aspects can be positively dysfunctional. The concluding two chapters then examine how comparison with the judicial experiences of other authoritarian constitutional systems can give us a more robust insight into what a meaningful and non-dysfunctional judicial independence might look like in and contribute to China’s present constitutional system.
In addition, there is also an introductory chapter by Peerenboom that details the motivation for the volume and provides a summary of its subsequent chapters. This chapter also contains a discussion of the “key issues and findings” of the volume. For purposes of narrative flow, I will address this chapter's findings after first giving brief description of the substantive chapters.
The book opens with a chapter by Keith E. Henderson entitled “Halfway Home and a Long Way to Go” that details how “judicial independence” is commonly understood, at least within the international (North Atlantic) law and development community. The principal articulation of this understanding is found in the Judicial Integrity Principles developed and promulgated by the International Foundation for Electoral Systems (IFES). Henderson shows that these principles are largely consistent with what China itself expects out of its judiciary. He then explores how these principles have been implemented in China to-date, and concludes with recommendations as to how they can be more effectively pursued in the future.
The IFES approach is immediately challenged by Antoine Garapon in his chapter entitled “A New Approach for Promoting Judicial Independence.” Garapon argues that the IFES approach is simply too abstract to be of much use in the actual construction of judicial independence in transitional countries like China. Ultimately, judicial independence is a matter of politics, not principles. And its promotion requires detailed investigations into country-specific “bad habits,” not generalized templates of universalized best practices.
Zhu Suli then takes Garapon’s skepticism a step further in his chapter on “The Party and the Courts.” Consistent with my observation above about the selective blindness of our understandings of judicial independence [*597] in the context of our own (familiar) constitutional systems, Zhu starts by exploring how the ideal of judicial independence is problematic even from the perspective of the American constitutional system from which it generally derives. He then shows how this metaphor becomes even more incoherent when applied to China’s party-led state. In a political environment such as China’s in which pursuit of the public good – for better or worse – is principally the responsibility of the party rather than the constitutional-legal system, he argues, judicial “independence” from that party is more likely to be dysfunctional than functional.
This first set of chapters, those which interrogate the notion of judicial independence per se, is then summarized and brought to closure by a chapter by the book’s editor, Randall Peerenboom, entitled “Judicial Independence in China: Common Myths and Unfounded Assumptions.” Peerenboom argues that all-in-all, China’s pursuit of judicial independence simply cannot be directed by a single model or abstracted set of best-practices. Rather, it requires that the idea of judicial independence by broken down into different “subcomponents,” namely “collective independence,” “personal independence,” “internal independence,” and “external independence.” He shows how analyzing China’s progress along each of these dimensions suggests the need for a much more nuanced approach that both appreciates the interdependencies that tie the possibilities of judicial independence to other developmental variables, and recognizes the occasional need to balance judicial independence against sometimes competing developmental considerations.
As if in response to this, the next six chapters of the volume look at particular aspects of China’s judicial performance as they might relate to a notion of “judicial independence.” The first chapter in this set (and the sixth chapter in the volume overall) is “A New Analytic Framework for Understanding and Promoting Judicial Independence in China,” co-authored by Fu Yulin and Randall Peerenboom, which argues that the dynamics of judicial independence in China varies depends to considerable extent on the nature of the case. In general, party interference with the judiciary tends to occur in cases that implicate the party monopoly on power, its core policy initiatives, or that are perceived as threatening to the existing social order. Moreover, the particular strategy for interference also varies according to the nature of the case.
Nicholas Howson’s analysis of the Shanghai judiciary’s handling of company law cases reaches a similar conclusion. In “Judicial Independence and the Company Law in Shanghai Courts,” he finds that Shanghai judges are generally independent and competent when hearing company law cases that do not implicate national social or economic policy. However, when faced with these latter kinds of cases – generally cases involving large state-run companies, publicly listed companies, or companies that involve significant state-owned assets– the courts will frequently ignore the dictates of the actual law and simply refuse to take the case. This is in spite for the fact that the new 2006 Company Law was intended specifically to promote better corporate governance [*598] in precise these types of firms. Howson suggests two possible factors behind contradictory behaviour. On the one hand, courts are sometimes directly instructed not to take these cases by bureaucratic superiors in the judiciary or in the party. On the other hand, courts also have their own incentive to avoid these kinds of cases, because these are the kinds of cases that are most likely to invite political attacks and restrictions on such autonomy as the courts do presently enjoy.
A very different topology of judicial independence is presented in the next chapter, “Local Courts in Western China: The Quest for Independence and Dignity,” by Stéphanie Balme. Looking at how independence does and does not manifest itself in the rarely-researched, grass-roots judiciary operating in the vast remote rural areas of China, Balme charts how such independence is critically affected by social factors far outside the traditional focus of constitutional design. These include the development of collegial networks, the design of the courtroom, judicial dress, pay scales relative to the general population, basic funding levels (irrespective of where that funding comes from), and feelings of pride in one’s profession. She finds that these conditions are however gradually improving, albeit largely spontaneously, but concludes that much greater progress could be made by increased centralization of judicial administration.
Returning to a theme introduced in this review’s description of Howson’s chapter, Xin He explores in his chapter on “The Judiciary Pushes Back: Law, Power, and Politics in Chinese Courts” how judiciaries in China can work to promote their overall autonomy by refusing to exercise that autonomy in particular kinds of cases. (The volume is inconsistent in its treatment of authors with Chinese names, sometimes putting the family name first – as is the case with authors Zhu Suli, Fu Yulin, Zhang Guoyan, Li Ling Pei Fei, and Chen Lixin – and sometimes putting it last, as is the case with authors Xin He and Minxin Pei.) In his chapter, that particular kind of case involves “married-out women” – rural women who leave their native villages upon marriage to live in the village of their husband. Land in rural villages is collectively owned, and so when village land is appropriated or sold, the compensation or proceeds generated by that transfer are often distributed among the individual members of that village. The question arises in such cases how to classify married-out women: are they still members of their native village? are they members of their husband’s village?
Such issues have been generating significant social agitation, and the typical political policy response has been to assign them to the courts for case-by-case, adjudicative resolution. But the courts have often refused to take these cases, demanding instead that they be resolved – in the first instance at least – administratively rather than judicially. As is the case with Shanghai courts in the context of company law litigation involving public corporations, this is not because of a lack of independence, but because the complex political forces that often swirl underneath the surface of these cases can easily overwhelm a court’s autonomy, and in the process impugn the social and political reputation necessary to give the courts whatever independence they do currently [*599] enjoy. This hypothesis is demonstrated by the fact that, somewhat paradoxically, the courts are much more willing to accept married-out women cases that challenge a prior administrative resolution. According to Professor He, this curious result is due to the fact that when brought as administrative litigation suits, the courts’ decisions are much more likely to be followed. By causing these cases to be brought under administrative litigation rather than as civil cases, the courts increase rather than erode their social and political reputation. In this regard, the question for judicial independence works as a double-edged sword: judicial deference to political authority does not always evince a lack of independence, it can sometime be the product of a larger strategy of promoting greater judicial independence.
Up to this point, most of the discussion in this volume has focused primarily on the judiciary’s independence from the party and political interference. Things become even more complicated when we consider how judicial independence is implicated by the courts’ interactions with the private sector – and in particular, by the issue of judicial corruption. Surveying reports of corruption published in Chinese newspapers between 1991 and 2008, Li Ling’s chapter on “Corruption in Chinese Courts” finds that while corruption can be found throughout China’s judicial system, different kinds of courts and different kinds of divisions in the same court tend to engage in different styles of corruption (in this regard, Li’s findings parallel those advance by Fu and Peerenboom in their chapter – i.e., that different kinds of cases and difference kinds of court actors implicate different kinds of and strategies for court interference). Lower-level courts evince more overt and extreme forms of corruption, while corruption in higher courts tends to be more subtle. Traditionally, corruption has tended to focus on the courts’ adjudicative divisions, but recently it appears to be also infecting the enforcement divisions as well. Corruption is most common in civil and commercial cases, less common in criminal cases, and rare in administrative litigation cases.
Li's study also suggests a direct and positive correlation between judicial independence and judicial corruption. This finding echoes observations made elsewhere in this volume by Zhu, Peerenboom, and Fu and Peerenboom. If this is the case, then this obviously complicates the commonly-held presumption that “judicial independence” should be the guiding focus of judicial development in China. Li concludes that instead of focusing on promoting judicial independence per se, judicial developmental programs in China should work primarily on promoting judicial integrity.
Whereas Li’s study looked at the nature of judicial corruption in China, the next chapter by Minxin Pei, Zhang Guoyan, Pei Fei and Chen Lixin explore its prevalence. “A Study of Commercial Litigation in Shanghai Courts” reports on a survey the authors conducted involving 190 corporate and 219 individual litigants who had been involved in civil litigation in Shanghai. Overall, respondents found judges to be largely competent and professional, and found their trials to be fair. Nevertheless, the survey also found [*600] significant numbers of litigants admitted to trying to improperly influence their judge in some way, and even more significant numbers of litigants believed that their opponents had in fact so influenced the judge. Seen in this light, they conclude that judicial corruption is not simply a product of bad judges, or bad courts, it is also product of larger social expectations and perceptions that emerge and operate outside of and prior to the confines of the courtroom.
The final two chapters in this volume explore what our understanding of judicial independence in China might have to gain from looking at the experiences of other judicial systems. In “Judicial Independence in Authoritarian Regimes: Lessons from Continental Europe,” Carlo Guarnieri suggests that the experiences of southern Europe may be more relevant to China than those of the north Atlantic polities that generally inform our understandings of judicial independence. Like China, the countries of southern Europe come from civil law traditions, whose judges follow career paths that are very different from those followed by judges in common law countries. In addition, many of the countries of southern Europe have significant experiences with authoritarianism and transitions from authoritarianism – something very relevant to China but largely absent from northern and Anglo-American narratives.
Guarnieri concludes that the experiences of southern Europe suggest that important components of judicial independence can emerge in authoritarian regimes, and that these components can provide useful foundations for the construction of judicial independence after transition to a more democratic environment. Looking at the dynamics of judicial independence from this perspective, Guarnieri suggests that China’s progress towards this goal may be farther along than is commonly perceived. This is because common law systems tend to regard judicial bureaucratization as an impediment to independence, whereas in the civilian experience he looked at, it actually functioned to promote judicial independence. He concludes – as do many of the other chapters in this volume – that efforts to promote judicial independence in China should therefore focus on the judiciary’s professionalization (e.g., professional training, more meritocratic recruitment and promotion, improved working conditions) rather than on its structural insulations.
For Tom Ginsburg, writing the concluding chapter to this volume, the comparative reference is (north)east Asia – particularly Japan, Korea and Taiwan. Like the countries of southern Europe examined by Guarnieri, those of Japan, Korea and Taiwan are civilian legal systems whose experience with judicial independence has been significantly informed by earlier authoritarian political histories. Moreover, also like that of China (but unlike the countries of southern Europe), their development of judicial independence took place against a larger background of a rapid economic development, a development that operated prior to and largely autonomous from that emerging independence. Despite this latter distinction however, Ginsburg’s findings broadly parallels those articulated by Guarnieri – namely, that significant foundations of judicial independence can [*601] be realized in authoritarian countries, and that these foundations can serve as useful bases for the construction and maintenance of judicial independence in the aftermath of democratic transition. Also like Guarnieri, as well as others in this volume, he concludes that China’s judicial development should focus more on professionalization and institutional centralization, and less on the development of structural insularities.
As noted above, in the last part of his introductory chapter, Peerenboom outlines some of the key findings and recommendations that he sees coming out of this volume. Among these include (1) the need to found reform efforts and programs less in global ideological presumptions and more in local empirical observation; (2) that meaningful incidents of judicial independence can be compatible with authoritarian regimes, and that relatedly, promoting judicial independence in such regimes therefore can be of limited impact insofar as larger trajectories of political and social transformation are concerned; and (3) that all political regimes, including China, often have to balance the goal of judicial independence against legitimate competing concerns. Along these lines, Peerenboom sees the process of judicial development in present-day China as inevitably and appropriately being one of “pragmatic political compromise,” in which “the court accepts some limits on its powers and refrains from challenging other organs in exchange for cooperation on certain issues that enhance the power and authority of the judiciary.” (p.21)
All in all, Peerenboom’s volume provides us with a much more nuanced portrait of judicial dynamics in China than has heretofore been presented. The demands and dynamics of judicial independence are highly variegated across China diverse judicial environments. They can also be highly ambiguous, often competing with other important developmental needs and considerations. Collectively, the chapters in this volume give strong credence to Peerenboom’s claim that there is no simple solution to this issue, no single abstract model that can serves as a guide to developmental efforts in this area.
But if this volume does well in its stated goal of “sort[ing] out sense from nonsense about judicial independence and the legal system in China” (p.3), it is less accomplished in its secondary goal – as per its subtitle – of providing “lessons for global rule of law promotion.” The volume does not extrapolate from China’s experience reflections on the larger meanings and implications of “judicial independence” as a human phenomenon, except perhaps to suggest what such independence is not – namely, that is it not meaningfully captured in some abstracted listing of “best practices.” Reading this volume, one suspects that the diversity of experiences it details have more to teach us about the nature of judicial independence – or even about its ultimate utility as a comparative developmental referent– than simply that.
© Copyright 2010 by the author, Michael W. Dowdle.