china law and society review 2 (2017) 129-153 brill.com/clsr The Politics of Courts in China Xin He University of Hong Kong [email protected] Abstract Politics has shaped the operation of the Chinese courts as well as their decision- making processes. This article surveys mostly empirical studies on the relationship between the courts and politics. It covers topics such as judicial independence, local protectionism, judicial mediation, judicial innovation, judicial reforms, and people’s attitudes toward the courts. It provides a clue to understand the trajectory of the Chi- nese courts, the legal system, and the relationship between law and society in general. Keywords judicial politics – judicial reforms – judicial independence – judicial mediation – China Introduction Chinese courts handle millions of cases annually and from time to time are a sharp focus of the media. They are a crucial component of China’s legal sys- tem and a window to understanding the interaction between Chinese law and society. Over the past two decades, Chinese courts have received considerable scholarly attention, both inside and outside China, in Chinese as well as in English. Researchers include legal scholars, sociologists, criminologists, eth- nographers, economists, political scientists, and psychologists. They employ a variety of approaches and perspectives: doctrinal, normative, and empirical. They focus on different types of disputes and various aspects of court develop- ments. However, no one denies that politics has shaped and continues to shape * The Author is grateful for the financial support of GRF projects (CityU 142013 and CityU 11403114) of the RGC in Hong Kong. Sue Trevaskes provides insightful comments for an earlier version of this article. © koninklijke brill nv, leiden, 2018 | doi 10.1163/25427466-0020001Downloaded from Brill.com09/27/2021 12:23:59PM via free access <UN> 130 He the operation of the Chinese courts as well as their decision-making processes. This article surveys the literature on the relationship between the courts and politics (On the Supreme People’s Court, see Taisu Zhang’s article in this issue). I hope this provides clues to understanding the trajectory of the Chinese courts, the legal system, and the relationship between law and society in general. Let us begin with the most obvious question: Why does an authoritarian regime such as the one in China need courts to be legitimate? The court system was almost abolished during the Cultural Revolution, and, for the first three decades of the People’s Republic of China (prc), the courts primarily handled only criminal and family issues. Why have the courts become more important during the reform period? Why does the regime even bother to develop admin- istrative law and litigation, in many ways tying its own hands? The short answer is that the courts serve numerous functions in reform-era China. A reliable judiciary can help attract foreign investment, maintain social order, and divert blame for unpopular policies (Moustafa 2007, 33–37). Admin- istrative laws and related litigation can also regulate the behavior of state ac- tors and ensure that national policies are implemented (Ginsburg 2008; He 2009d). Li (2017) argues that the Chinese Communist Party (ccp) wants local courts to regulate the non-state sectors and state actors below the level of the courts that hold positions of power. In this way, the Party can enjoy control over these actors through the courts. A court that effectively and efficiently resolves disputes can shore up citizens’ support for the regime and enhance its legitimacy (Shapiro 1981). Positive attitudes toward the courts and the legal system in general can also be an alternative to liberal democracy. Good gov- ernance through an effective legal system is linked to limited political reform and power sharing (Gallagher and Wang 2011, 204), and no legal system can op- erate without effective courts. One constant mantra guiding the development of judicial reform since the late 1990s has been to enhance both judicial fair- ness and efficiency. Although this was supplemented with the idea of effecting positive social and legal outcomes when Wang Shengjun took the helm of the Supreme People’s Court (spc) in 2008, judicial fairness remains a theme in the development of the Chinese courts today. However, one should not overestimate the appeal of an effective, efficient, and independent court. A truly independent court can become a site of resistance to national policies, and the awakening of citizens’ legal rights can threaten and eventually overthrow the authoritarian regime. Many socialist countries have fallen in this fashion. This is “the crux of the authoritarian dilemma over courts: on the one hand, autonomous courts burnish and legitimatize authori- tarian rule. But on the other hand, a truly independent judiciary carries the threat of subversion” (Stern 2013, 98). As the biggest authoritarian regime in the world, China is no exception. Chinese rulers, of course, want to avoid walking china law and societyDownloaded review from 2Brill.com09/27/2021 (2017) 129-153 12:23:59PM via free access <UN> The Politics of Courts in China 131 in the footsteps of fallen socialist regimes. Zhou Qiang, the current president of the spc, makes it crystal clear: China will definitely say no to constitutional democracy, separation of powers, and judicial independence. He believes that these are all Western values that are detrimental to the ccp’s rule. In a word, the regime’s views about the courts are ambivalent: it wants to reap the bene- fits but also avoid the dangers of the law. This ambivalence is shown in the new round of judicial reforms: numerous efforts to strengthen the judiciary, but at the same time all these efforts have to be implemented under the ccp’s leader- ship, and they are not intended in any way to undermine the Party’s leadership (Chan 2016). This ambivalence defines many of the studies of Chinese courts. Limited Judicial Independence One of the most enduring debates on Chinese courts centers on judicial inde- pendence. As suggested above, the regime embraces a particular idea of judi- cial independence that is defined in contrast to liberal Western concepts. The Chinese constitution and the Organic Law of the Courts state that the courts exercise their adjudicative power independently, free of intervention from any other organizations or individuals. Although it is unclear whether the Party is also “an organization,” most scholars and judges take for granted that the Party is above the court and is not excluded. In this sense, political influence over the decision-making of the courts is inevitable. Fu and Peerenboom (2010) provide a list of cases in which various types of extralegal forces are involved. Indeed, earlier works suggest that the Chinese courts are little more than the pawns of the state and thus have little judicial independence (Lubman 1999). How- ever, the regime and the judiciary have long emphasized judicial fairness and experienced progress in dispute resolution (Peerenboom and He 2009). How judicial fairness is implemented then becomes a task for scholars to explain. They have made significant attempts at pinpointing the extent to which judi- cial decisions are influenced by various extralegal forces. Local Protectionism Because the Party and the government exercise control over the staff and bud- gets of the courts, some scholars have argued that the courts are plagued by lo- cal protectionism (Clarke 1995; Lubman 1999). Judicial corruption (Li 2012) and the influence of guanxi [personal connections] (He and Ng 2017; Potter 2002) are both rampant. However, a few studies in the early 2000s questioned this con- ventional wisdom. Peerenboom (2001) surveys the enforcement of arbitration china law and society review 2 (2017) 129-153 Downloaded from Brill.com09/27/2021 12:23:59PM via free access <UN> 132 He cases, finding that the situation is much better than has been portrayed in the media. Local protectionism did not significantly affect the likelihood of the enforcement of court decisions. He also finds that only rarely do Party mem- bers intervene in specific cases. He concludes that the Party has retreated from day-to-day governance of commercial and legal activities. Peerenboom’s find- ings are echoed by He (2009b). Based on debt collection cases at a Pearl River Delta court, He sees the overall situation as positive, with only rare instances of local protectionism. The reason, He argues, is that the local economy is more diversified and therefore so are the sources of government revenue. The local governments can collect taxes and revenue from a variety of sources, so they do not need to provide protection for their state-owned enterprises (soes) in litigation. Later studies based on less developed areas reveal less positive re- sults but are generally consistent with the analysis that enforcement of rel- evant laws is taking place and local protectionism is not rampant (He 2011, 2012a). Other scholars see similar results in Shanghai courts (Pei et al. 2010). Howson (2010), for example, finds that the handling of corporate cases there is quite professional (see also Gechlik 2005). Political Considerations in Adjudicating Social Stability–Related Disputes Regardless of the extent to which judicial protectionism occurs, the evidence suggests that political influence wielded by the government is far from minimal. Over the decade of the Hu Jintao era (2002–2012), social stability was deemed a particularly sensitive