Tuesday, January 12, 2010

Book Review: China's courts as a model?

Here's a new book review. It's not Southeast Asia per se, but I think it might be interesting for anybody interested in courts in Asia. Also, China's legal system is very similar to that of Vietnam, Laos, and Burma's 1974 Constitution, so China could potentially serve as a model for the authoritarian countries in the region:
Judicial Independence in China: Lessons for Global Rule of Law Promotion is a great addition to any library on the rule of law. The book challenges the conventional wisdom about the importance of judicial independence. In particular, it shows how China's government has increased judicial capacity and professionalism while still limiting independence. This is a very important finding considering that the rule of law industry spends billions of dollars promoting judicial independence in developing countries. 

The book is a collection of articles written by some of the top China-law scholars in the field, both Western and Chinese. Each chapter focuses on a unique aspect of judicial independence in China, from commercial litigation to geographic case studies. Overall, the articles fit surprisingly well together with very little repetition. The book progresses from wider notions of judicial independence to more specific Chinese cases.

Here are some comments on the individual chapters:

1) "Halfway Home and a Long Way to Go" - Keith Henderson
Henderson's article introduces the conventional wisdom of the rule of law industry. It is a decent summary of this perspective. Nonetheless, the rest of the book challenges his recommendations.

2) "A New Approach for Promoting Judicial Independence" - Antoine Garapon
Judge Garapon directly provides a counterview to Henderson's article. In particular, he discusses how concepts of judicial independence differ event among Western common and civil law countries, much less a global norm applicable to all countries. This is a powerful critique of the standard rule of law perspective (which he calls "global gibberish")/

3) "The Party and the Courts" - Zhu Suli
As with his other work, Zhu provides a useful insider's view of the Chinese Communist Party and the courts, arguing that the party has done much to strengthen the courts. However, at points he takes his argument too far. For example, it is certainly not difficult to imagine that the KMT would eventually have modernized the courts, much as they had done on Taiwan.

4) "Judicial Independence in China" - Randall Peerenboom
As always, Peerenboom makes good use of statistics on China's judicial institutions. If you're not familiar with his research, this is a good overview. However, otherwise there's nothing new.

5) "A New Analytical Framework for Understanding and Promoting Judicial Independence in China" - Fu Yulin and Randall Peerenboom
Unfortunately, I didn't find this article quite as helpful. Too much discussion of policy proposals and reforms rather than original research. It was also a bit unfocused.

6) "Judicial Independence and the Company Law in the Shanghai Courts" - Nicholas Howson
Howson's study has some interesting data on the role of courts in commercial cases. In particular, he explores the extent to which Chinese courts are independent in the commercial as opposed to explicitly political context. However, it might be difficult to follow for a reader not steeped in commercial litigation concepts.

7) "Local Courts in Western China" - Stephanie Balme
Balme's article is a unique view inside rural Chinese courts. She describes the daily lives of judges, the difficulties they face, and even their diary entries. Easily the best article in the volume.

8) "The Judiciary Pushes Back" - Xin He
Xin He analyzes China's judicial politics through cases of `married out women.' In an interesting twist, judges have been reluctant to accept these cases, fearing the lack the capacity and political basis upon which to decide them. Xin shows the courts as a political actor aware of their own limitations.

9) "Corruption in China's Courts" - Ling Li
Ling's article tries to measure patterns of corruption in China's court. Not surprisingly, he concludes that crass physical intimidation are only found in the lower courts, while more subtle forms of corruption predominate among the high court judges. However, the methodology of relying on newspaper articles has many limits, particularly the fact that they don't cover all cases - a fact Ling acknowledges.

10) "Survey of Commercial Litigation in Shanghai Courts" - Minxin Pei, Zhang Guoyan, Pei Fei, and Chen Lixin
This study focuses more on litigants as strategic actors in courts. Particularly interesting is the assessment of corruption. The authors claim that many corporate clients claim to have tried to influence judges, while a significant number of private parties tried but could not figure out how to influence judges. The methodology has some problems however, particularly the potential for bias among the respondents.

11) "Judicial Independence in Authoritarian Regimes" - Carlo Guarnieri
This article had potential, but is a bit too basic. It starts off with a basic comparison of common and civil law judges - something already covered by Garapon earlier. Some of Guarnieri's examples were interesting, particularly Fascist Italy, but in the end he never goes into much detail about the court structure in his case studies.

12) "Judicial Independence in East Asia" - Tom Ginsburg
Ginsburg's discussion of judicial independence more broadly is excellent. However, I'm not convinced by the linkage to China. Japan, South Korea, and Taiwan were under the influence of the U.S. and have relatively small, homogenous populations. By contrast, China is huge and the Communist Party still insecure about its power. Eventually, Northeast Asia might provide a model, but right now I don't think it's the best referent.

While overall this is a great volume for both rule of law practitioners, readers not familiar with China's legal system already might find themselves lost during the first few chapters. Perhaps the book should have included a basic introduction to the structure of the people's courts and constitutional provisions governing them. I'd refer readers to The Legal System of the People's Republic of China in a Nutshell (West Nutshell) for a basic overview if they need an introduction.

A more serious concern about Judicial Independence in China: Lessons for Global Rule of Law Promotion is the lack of comparative law. Southern Europe and Northeast Asia might not be the best comparators for China's current state of development. Rather, the book would have benefitted from a discussion of judicial independence in other developing countries and the challenges therein. For example, many observers believe Indonesia's post-Suharto reforms gave courts too much independence too quickly without accountability, leading to the current problems with corruption. This contrast helps to explain China's current approach.

Judicial Independence in China: Lessons for Global Rule of Law Promotion is definitely worth a read, whether or not your interests are centered around China, if only to get a different perspective on courts.

No comments:

Post a Comment