The Growth and Limits of Judicial Independence in China

Abstract

This thesis examines the nature and extent of judicial independence in China. In particular, it focuses on judicial adjudication (sifa shenpan) and explores the factors that affect judicial behaviour and how those factors influence and shape the judges’ decision-making process. In contrast to the existing literature - most of which sees judicial independence in China as stagnant, this thesis employs the strategic interaction approach to study the development of impartial adjudication in China and argues that judicial decision-making is more complicated than conventionally appreciated. The extent of adjudicative independence is evolving with the amount of judicial discretion afforded by the Chinese Communist Party (CCP) to judges. This thesis first argues that, allowing for regional variations, and within the authority delegated by the CCP in the context of Party’s declared intention to govern according to law (yifa zhiguo), the courts have enjoyed a significant and growing degree of judicial independence. Within the space allowed by the CCP, apart from some politically sensitive cases, the more common external influence on the courts is not from the Party or other government agencies, but from the litigants themselves, chiefly because of the importance of guanxi in China. This thesis further argues that the independence ofjudicial adjudication in China varies with the amount of discretion afforded by theCCP to judges at different times on different issues. Nevertheless, the growth of a ‘legal professional community’ has the potential to play a significant role in challenging the external, non-legal influences on - and defending the independence of - the judiciary. To support these arguments, this thesis applies the strategic interaction approach as well as relying on historical and cultural research. In particular, it draws on a number of case studies supplemented by field research interviews in different regions in China. The major contribution of this thesis is to reveal a dynamic process in the development of more independent judicial adjudication in China, and the complex political and social power interactions in this process. It also clarifies the contested meanings of ‘judicial independence’ in discussions about, and within, Chinese judicial circles.