China's Courts: Restricted Reform

Liebman, Benjamin L.

This essay surveys recent developments in China’s courts. Part I examines recent top-down reforms in China’s courts, highlighting what some advocates of a stronger judiciary consider signs of progress. Part II discusses new challenges that may be undermining courts’ already limited autonomy. Part III argues that the most significant changes in China’s courts are coming from the ground up, in particular from growing horizontal interactions among judges. Part IV asks whether recent developments suggest fundamental changes to courts’ power, and then returns to the two questions posed above: First, why has the Party-state permitted the courts to develop even limited new roles? Second, can courts play an effective role in a non-democratic governmental system? My focus is primarily on civil and administrative litigation, where reforms have been more significant than in the criminal justice system.

Much theoretical scholarship on courts focuses on why democratic systems permit and encourage the development of independent courts. Explanations include the knowledge that rulers may one day find themselves out of office, the desire to make commitments credible, and the need to constrain bureaucracies. Most such explanations have limited applicability in China, where courts are not designed to be independent of Party leadership. Scholarship on the role of courts in authoritarian societies has been limited. This essay seeks to add to this literature by exploring why a single-Party state might encourage court development, and whether courts can play significant new roles without necessarily challenging Party authority.

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Columbia Journal of Asian Law

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November 23, 2015