Skip to main content Accessibility help

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.

Close cookie message
×
Hostname: page-component-cd9895bd7-gxg78 Total loading time: 0 Render date: 2024-12-27T10:36:30.478Z Has data issue: false hasContentIssue false

4 - The Party and the Courts

Published online by Cambridge University Press:  05 June 2012

By
Zhu Suli
Edited by
Randall Peerenboom
Randall Peerenboom
Affiliation:
La Trobe University, Victoria
Get access

Summary

The dominant view among Western legal scholars, human rights activists, and pundits is that the Chinese judiciary lacks meaningful independence in large part because China is a single-party authoritarian state. According to this view, the Chinese Communist Party (CCP) is the main source of interference with the courts and the biggest obstacle to judicial independence. This chapter challenges the prevailing wisdom about the party and its role with respect to judicial independence, legal reforms, and China's efforts to modernize more generally.

The dominant view is the result of analytical and methodological errors typical of Western China watchers' efforts to understand China's legal system and the legal systems in other developing states, authoritarian ones in particular. It is based on four unwarranted assumptions. First, there exists some pure state of reality that deserves to be called judicial autonomy. Second, it is possible to construct a set of standards for, or an objective model of, this judicial autonomy, either as a political structure or as a set of social conventions. Third, this model can show that the CCP exercises political influence on judges and the courts in a way that is inimical to and undermines judicial autonomy. Fourth, it is possible to identify and examine the actual social effect of such influence, and the overall effect of party influence is negative. Rationally considered, however, these suppositions are simply unrealistic.

Type
Chapter
Information
Judicial Independence in China
Lessons for Global Rule of Law Promotion
 , pp. 52 - 68
Publisher: Cambridge University Press
Print publication year: 2009

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Yat-sen, Sun, Sun Yat-sen Quanji [Complete Works of Sun Yah-sen], (Beijing: Zhonghua Shuju, 1986), vol. 8, pp. 267–268Google Scholar
Xiaotong, Fei, Huangquan he Shenquan [Emperor's Power and the Power of Gentry Class], (Beijing: Tianji Renmin Chubanshe, 1988)Google Scholar
Xianzhi, Wang, “Kangzhan Shiqi Guomindang Zuzhi Jianshe yu Zuzhi Fazhan de Jige Wenti” [Issues on KMT's Organizational Construction and Development During the Anti-Japanese War], Jindaishi Yanjiu, 1990/2, pp. 230–250Google Scholar
Zhongshen, and Sengshu, Tang, “Shilun Nanjing Guomin Zhengfu Xunzheng Qianqi (1928–1937) de Difang Dangzheng Jiufeng” [The Local Party-Government Conflicts in Early Tutelary Period (1928–1937) of Nanjing National Government], Shixue Yuekan, 1999/2, pp. 53–58Google Scholar
Suli, Zhu, Song fa xiaxiang: Zhongguo jiceng sifazhidu yanjiu [Sending Law to the Countryside: Research on China's Basic-Level Judicial System], (Beijing: The Chinese University of Law and Politics Press, 2000), p. 466Google Scholar
Holmes, Oliver Wendell, “John Marshall,” in The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Posner, Richard A. ed., (Chicago: University of Chicago Press, 1992), pp. 206–209Google Scholar
Bork, Robert H., The Tempting of America: The Political Seduction of the Law (New York: Simon & Schuster, 1990)Google Scholar
Lott, Jr John R.., “The Judicial Confirmation Process: The Difficulty with Being Smart,” Journal of Empirical Legal Studies, vol. 2/3 (2005), pp. 443–444CrossRefGoogle Scholar
Powe, Lucas A.., The Warren Court and American Politics, (Cambridge: Harvard University Press, 2000)Google Scholar
Maltz, Earl M., The Chief Justiceship of Warren Burger, 1969–1986 (Chapel Hill: University of South Carolina Press, 2000)Google Scholar
Yarbrough, Tinsley E., The Rehnquist Court and the Constitution (London: Oxford University Press, 2001)Google Scholar
Maltz, Earl M. ed., Rehnquist Justice: Understanding the Court Dynamic (Lawrence: University of Kansas Press, 2003)
Posner, Richard A., Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts, (Princeton: Princeton University Press, 2001)CrossRefGoogle Scholar
Sunstein, Cass R. and Epstein, Richard A. ed., The Vote: Bush, Gore, and the Supreme Court (Chicago: University of Chicago Press, 2001)
Abraham, Henry J., The Judicial Process, An Introductory Analysis of the Courts of the United States, England, and France, 7th ed. (Oxford: Oxford University Press, 1998), pp. 37–42Google Scholar
Tribe, Laurence H., Constitutional Choices (Cambridge: Harvard University Press, 1985)Google Scholar
, Suli, Daolu Tongxiang Chengshi – Zhuanxing Zhongguo de Fazhi [All Roads Lead to Cities – Rule of Law in China's Transformation], (Beijing: Falu Chubanshe, 2004), esp. IntroductionGoogle Scholar
Kirby, William C., “Renshi 20 Shiji Zhongguo” [Understanding China of 20th Century], 21st Century, 2001/10, p. 114–24 and also in http://www.usc.cuhk.edu.hk/wk_wzdetails.asp?id=1523
Tse-Tung, Mao, “On Correcting Mistaken Ideas in the Party,” Selected Works of Mao Tse-Tung, vol. 1 (Peking: Foreign Language Press, 1975)Google Scholar
Biwu, Dong, Dong Biwu Faxue Wenji [Legal Works of Dong Biwu], (Beijing: Falu Chubanshe, 2001)Google Scholar
Peerenboom, Randall, China Modernizes: Threat to the West or Model for the Rest? (Oxford: Oxford University Press, 2007)Google Scholar
, Suli, Daolu Tongxiang Chengshi – Zhuanxing Zhongguo de Fazhi [All Roads Lead to Cities – Rule of Law in China's Transformation] (Beijing: Falu Chubanshe, 2004)Google Scholar
Chengwu, Yang, Yang Chengwu Huiyilu [Memoirs of Yang Chengwu], (Beijing: Jiefangjun Chubanshe, 1987), p. 334Google Scholar

Save book to Kindle

To save this book to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×