Alternate Title

The Application of Law as a Key to Understanding Judicial Independence


Application of Law, People's Republic of China, Law in China, Judicial Independence, Judicial Decisions, National People’s Congress (NPC), Chinese Communist Party, Legal duty, Judges in China, Judge-made rules


Judges across China recently declined to apply a law that the National People’s Congress had newly brought into effect. In this article, I describe this startling finding and explore the significance of it. I conclude that it represents an exercise of judicial independence. Using a thickly descriptive approach that focuses on textual analysis and institutional context, I demonstrate that judges in China have no legal duty to apply law and that it is professionally risky for them to apply law; that judges there operate within a professional culture that encourages restraint; and that the court system has developed a strong set of internal rules that encourage reference to judge-made rules rather than to external rules such as those enacted by legislative or executive bodies. I further argue that the topic of judicial independence is important not just for countries outside the United States, but for the United States as well, and that a framework developed from a broadly comparative perspective is the best approach for understanding judicial independence in China, and, likewise, in the United States. Understanding judicial independence in China is important for myriad reasons. It is a gauge of the robustness of the rule of law in China. It is an important proving-ground for judicial independence as a universal phenomenon. It adds perspectives from China to the comparative law literature on judges. It is a bell-weather of the kind of decentralization of authority that famously marks China’s post-Mao government. There is no question that the courts of China were enlisted to play a role in the larger governmental initiatives of the past century. Its courts garnered respect for the People’s Republic of China’s legal system, which in turn helped China participate as an equal in the international legal order, as well as the international economic system. With judicial independence, there is no escaping the fact that to understand it is to measure it. This is because it would be false and misleading to believe that either you have it or you don’t. Each country’s, each county’s, each judge’s independence is affected by a complex of circumstances around it that vary over time. Some of these circumstances are institutional, some are cultural, and some are the products of chance and human agency. Care is needed when framing the measuring project. If we choose to view the degree of judicial independence as arraying itself along a spectrum, then we need to avoid falling into the trap of assuming that every country is making progress along a trajectory toward complete judicial independence. To make such a sweeping conclusion as this requires information so complete that it defies our current abilities to gather it, and its helpfulness is obscured by the false and unproven assumption of progress. Always lurking is the problem of “independence from what?” The more complete our recognition of the types of constraints on judges, the better our understanding of how they are independent from any of them. This is a tall order indeed. We are better off accepting that snapshots of a particular moment give us glimpses into the ways in which judges evade the constraints placed upon them. As minimal as this sounds, we should not dismiss it as of little value. Clifford Geertz’s famous admonition to aim for “thick description”2 fits with this snapshot approach. At the same time, meaningful snapshots should not be facilely linked together into a broader picture that ignores the many gaps with which it is riddled. While no universally accepted definition of, or framework for, judicial independence emerges from the comparative law literature on courts,3 the notion of judicial independence is widely studied. In this literature, judicial independence is portrayed as a prerequisite to the enforcement of constitutional and civil rights.4 During the past several decades, comparative law scholars have noticed a growing intervention by courts into their societies.5 Also emphasized in the literature is how judicial independence attracts investors, because they aim to minimize the risk of loss of capital by having third party neutrals enforce their agreements. The idea here is that judges enjoy enough autonomy to be able to decide cases on their merits. Although positive law binds their decisions, and that positive law at least in theory imposes a kind of uniformity on the outcome of lawsuits, independent judges have the freedom to interpret and apply the law as they see fit in light of the particular circumstances of the instant case. Even just the appearance of independence boosts the legitimacy of the courts.6 This study of the courts of the People’s Republic China aims to understand one recent sign of judicial independence from influence by governmental branches outside the judiciary. By combing through judicial opinions and focusing on how those courts applied law, I uncovered a lag in the application of a then newly enacted national statute to cases that the legislature had intended to be subject to the statute. This lag cannot be explained by regulations or procedures that permitted the judiciary at that time to ignore laws that had recently come into force. Another explanation, however, which credits the internal logic of the judiciary’s own institutional practices, cannot be ruled out. In this article, first I will show that, to their detriment, the frameworks we have for understanding the independence of judges by and large leave out the application of law. Next, I will trace judicial independence in China, including practices in the application of law, during the last century, in order to make the point that any sign of the judiciary in China applying law in a way that runs contrary to the mandates of other parts of government is new. Third, I will display a snapshot of judicial refusal to apply law that suggests an institutionally rooted exercise of independence from China’s central legislature, the National People’s Congress (NPC), and, by extension, from the political apparatus that attaches to it, that occurred in the first decade of the twenty-first century. This snapshot presents results from a textual analysis of 499 judicial opinions which reveal an event in 2010 that may reflect a measure of courts’ institutional independence. The conclusion of this paper will draw together several points of significance of this snapshot.



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