Recent developments in China’s courts reflect a paradox largely avoided in literature on the subject: Can China’s courts play an effective role in a non-democratic governmental system? Changes to courts’ formal authority have been limited, courts still struggle to address basic impediments to serving as fair adjudicators of disputes, and courts continue to be subject to Communist Party oversight. Courts have also confronted new challenges, in particular pressure from media reports and popular protests. At the same time, however, the Party-state has permitted, and at times encouraged, both significant ground-up development of the courts and expanded use of the courts as fora for the consideration of rights-based grievances, including administrative litigation, class actions, and a small number of discrimination claims filed directly under the constitution. Some courts have engaged in significant innovation. Judges are better qualified than in the past, and are increasingly looking to other courts and judges, rather than Party superiors, in deciding novel or difficult cases. As a result, courts are increasingly coming into conflict with other state institutions, growing numbers of well-educated judges are developing professional identities, and popular attention to both the problems and the potential roles of the courts appears higher than ever before.
The current and potential future role of China’s courts has received wide attention. In China, officials speak of the importance of court reform for ensuring China’s goals of legal construction and modernization. But the aims of such reforms have been technical: improved training of judges, rooting out corruption, increasing efficiency, and overseeing judges more closely. Such reforms appear aimed at making the courts institutions for the fair adjudication of individual disputes. At the same time, commentators in China and in the West have argued for greater changes, contending that courts should serve not only as adjudicators of private disputes but also as checks on state power and as fora for the resolution of public rights – in sum, that the courts should play a significant role in the development of Chinese governance and society.
Comparative and Foreign Law | Courts | Law
Benjamin L. Liebman,
China's Courts: Restricted Reform,
Colum. J. Asian L.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3374