It is common when reading about China’s courts in the press to hear variations of the same theme: the Chinese Communist Party (CCP) has absolute control over the courts; judges barely apply the law, let alone innovate, instead they wait for direction from the Party. But is this true? After 30 years of legal development, a rapid increase in law schools, lawyers, and legal knowledge, are judges still mere mouthpieces of the Party? Can the CCP have such control when over 8 million cases are filed a year in cities and town that are often thousands of miles from Beijing?
Professor Frank Upham, co-director of the Law School’s U.S.-Asia Law Institute, sought to investigate these common assumptions and tear down misconceptions about China’s courts. On February 19, Upham, in coordination with Professor Ben Liebman of Columbia Law School, hosted a distinguished panel of scholars at “China’s Changing Courts: Populist Vehicle or Party Puppet?”
Featuring leading scholars in the field, including Professor Xin “Frank” He of the City University of Hong Kong School of Law and NYU Hauser Global Faculty for the Spring 2009 semester, Professor Nicholas C. Howson of the University of Michigan School of Law, Professor Carl Minzner of Washington University School of Law, and Rachel E. Stern, a Ph.D. candidate at the University of California, Berkeley, the evening perhaps raised more questions than it answered.
Liebman, in moderating the discussion, noted that while China’s courts have made progress in developing a rule of law during the past 30 years, current Party rhetoric has begun to emphasize again the preeminence of CCP ideology. This was echoed in Howson’s description of recent corporate cases in Shanghai: the 2006 Company Law gave courts more authority to determine legal claims, but Shanghai courts have instead abdicated some of their statutorily-imposed responsibilities. However, Stern and He both provided a more positive assessment in environmental and labor cases, respectively, noting that there has been innovation occurring in the margins of these cases. In attempting to understand the future evolution of China’s courts, Minzner described the current incentive system that rewards judges and government officials for meeting targets instead of being faithful to the spirit of the law.
“China’s Changing Courts” did not just delineate the changes to China’s courts, but also showed that China is at a crossroads: to allow greater innovation and court-initiated legal development, to tie the courts more tightly to the Party, or to find some kind of middle ground that will fit with China’s own modern development.
To watch a video of “China’s Changing Courts: Populist Vehicle or Party Puppet?” go to http://www.usasialaw.org/. The panelists will be taking questions from the web audience, and 10 questions will be answered by the panelists and posted online by Monday, March 2, 2009. Please email questions to: firstname.lastname@example.org