Convergence and the Judicial Role : Recent Developments in China - article ; n°1 ; vol.55, pg 57-70

J. Spigelman

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Revue internationale de droit comparé - Année 2003 - Volume 55 - Numéro 1 - Pages 57-70
14 pages
Source : Persée ; Ministère de la jeunesse, de l’éducation nationale et de la recherche, Direction de l’enseignement supérieur, Sous-direction des bibliothèques et de la documentation.

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• Droit et juridique

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• Publié par: Revue-internationale-de-droit-compare
• Publié le: 01 janvier 2003
• Nombre de lectures: 16
• Langue: English
• Poids de l'ouvrage: 1 Mo

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M. James J. Spigelman
Convergence and the Judicial Role : Recent Developments in
China
In: Revue internationale de droit comparé. Vol. 55 N°1, Janvier-mars 2003. pp. 57-70.
Citer ce document / Cite this document :
Spigelman James J. Convergence and the Judicial Role : Recent Developments in China. In: Revue internationale de droit
comparé. Vol. 55 N°1, Janvier-mars 2003. pp. 57-70.
doi : 10.3406/ridc.2003.5557
http://www.persee.fr/web/revues/home/prescript/article/ridc_0035-3337_2003_num_55_1_5557R.I.D.C. 1-2003
CONVERGENCE AND THE JUDICIAL ROLE
RECENT DEVELOPMENTS IN CHINA
James J. SPIGELMAN *
Professor Gabriel Moens, Professor of Law at the University of
Queensland and chair of the Congress, referred to the theme in the context
of recent comparative law literature in the following terms : "One idea
that figures prominently in the relevant comparative law literature concerns
an observable tendency of the world's legal families to embrace a common
intellectual framework for the consideration and resolution of current
problems".
The extent, if any, to which China can now be said to adopt such
a "common intellectual framework" is a matter of great significance.
At the level of form and rhetoric, change in the Chinese legal system
since 1 978 has been nothing short of revolutionary. At the level of practice,
change is palpable, but its present significance and prognosis are extremely
difficult to assess. There are elements of this development which it is
appropriate to analyse in terms of "convergence".
At the time the reforms commenced, China had just emerged from
the calamitous years of the Cultural Revolution, during which nothing
that could be described as a legal system had been permitted to survive.
Although there were some personnel from the previous system that could
be drawn on, the era of the Four Modernisations required the reconstruction
of legal institutions, virtually from scratch.
There are many aspects of the multifaceted process often described
as "globalisation" which manifest the spread of concepts commonly ascri
bed to the West. Perhaps, none has been more significant than what has
been called "the rule of law revival" !. The dramatic quality of is
now being contemplated and even attempted in this respect in China, is
* 1 Thomas Chief Justice CAROTHERS, of New South "The Wales, Rule of Australia. Law Revival", Foreign Affairs, March/April
1998. 58 REVUE INTERNATIONALE DE DROIT COMPARE 1-2003
emphasised by the fact that neither in the previous thirty year history of
the People's Republic of China, nor, even more significantly, in the
millennia of prior tradition of China's long civilisation, was there an
institutional model anything like the rule of law administered by an inde
pendent judiciary.
The Chinese tradition is well expressed in one of the aphorisms
attributed to Confucius : "I could adjudicate law suits as well as anyone.
But I would prefer to make law suits unnecessary".
Accordingly, an Imperial administrator who had efficiently disposed
of a huge caseload would not have received any accolade. Rather, his
competence would be questioned for allowing so much contentiousness
to exist on his patch. The great Australian sinologist of Belgian origin,
Pierre Rykmans, who writes under the pseudonym of Simon Leys, explai
ned this tradition in annotations to his translation of the Analects of
Confucius :
"... When a nation needs to be ruled by a plethora of new laws, by
a proliferation of minute regulations, amendments, and amendments of
amendments, usually it is because it has lost its basic values and is no
longer bound by common traditions and civilised conventions. For a
society, compulsive law making and constant judicial intervention are a
symptom of moral illness" 2.
In this respect, contemporary China has converged with the West.
A rival philosophical tradition in China, known as the Legalists,
emphasised severe law and harsh punishments, on the basis of what, in
the West, would be regarded as a Hobbesian view of the world. This
authoritarian tradition is not a forerunner of a rule of law philosophy. It
is rule by law, rather than the rule of law 3.
The Chinese tradition never developed a concept similar to the rule
of law. Nor did any institution emerge which could be considered to be
an independent judiciary. Local prefects operated in a context in which
the execution and enforcement of the law and dispute resolution were
part of an undifferentiated governmental function. There was, in short,
nothing analogous to a separation of powers, nor even of separate institu
tions sharing power.
The attempt to establish a separate judiciary during the Nationalist
era proved of no long-term significance, other than in Taiwan. In the
People's Republic of China, the period of Party rale prior to the Cultural
Revolution, did lead to the emergence of a separate institution in the
form of a hierarchical court structure, based in large measure on Soviet
experience. This tradition has proven to be of longer-term significance as
a partial model for reconstruction after the end of the Cultural Revolution.
2 Simon LEYS (Trans), The Analects of Confucius, W.W. Norton, 1997 at fn 176.
3 Eric W. ORTS, "The Rule of Law in China" 2001 , 34 Vanderbuilt Journal of Transnat
ional Law, 43 esp at 52-55 ; Albert H. Y. CHEN, "Towards a Legal Enlightenment : Discus
sions in Contemporary China on the Rule of Law" 2000, 17 UCLA Pacific Basin Law
Journal 125 at 129-130; John K. FAIRBANK and Edwin O. REISCHAÜSER, China:
Tradition and Transformation, Revised Edition 1989 at 43-54. SPIGELMAN : CONVERGENCE AND THE JUDICIAL ROLE - CHINA 59 JJ.
Article 78 of the Constitution of the People's Republic adopted in
1954, stated that "people's courts shall conduct adjudication independently
and shall be subject only to the law". Like the famous 1936 Constitution
of the USSR, Article 78 did not reflect actual practice. Party control
of judicial decision-making at all levels prevented the emergence of an
independent judiciary. Whatever development may originally have been
intended, party control extending to the disposition of specific cases, was
decisively reasserted during the Anti-Rightist Movement of 1957 and
1958 4.
The Stimulus of Economic Reform
The transformation of the Chinese economy over the last two decades
has been extraordinary. The transformation of its legal system has been
equally There is no doubt that legal reform has been driven
by economic reform 5.
The linkage recognises the strategic role of the law and of the legal
system in sustaining economic progress. The objective is said to be the
creation of "a socialist market economy".
Markets in a face-to-face sense — like an Oriental bazaar or a
Mediterranean rialto — have existed under all systems of government
and law. However, a market economy is a rare phenomenon. Only certain
kinds of society, governmental structure and legal system have been able
to sustain a market economy. A market economy is not a force of nature.
It is a human construct. More than anything else, a successful market
economy is the product of good government and of the law. fn the Town
Hall of Siena, there are two wonderful frescos by Lorenzetti : Allegories
of Good and of Bad Government. Even a cursory glance at the latter,
with its depiction of decay and chaos, will convince anyone that without
law, there can be no market system 6.
An important motive for reform has been the, now completed, acces
sion of China to the World Trade Organisation. The ability of other nations
to obtain the benefits of trade agreements depends on domestic compliance
with the obligations imposed by such agreements. This is obviously so respect to the administration of customs matters, but it is also true
with to a wide range of potential interference with trade in the
course of warehousing, distribution, transportation, insurance, transfer pay
ments and various forms of regulation e.g. health.
An obligation to provide an independent judiciary has long existed
in Article X of the General Agreement on Tariffs and Trade 1947, now
administered by the WTO, albeit expressed in the language of obfuscation,
1949-1959" 4 See Jerome (1969) A. 82 COHEN, Harvard "The Law Chinese Review Communist 967 ; Larry Party SMEETS, and "Judicial Independence" Independence :
in the People's Republic of China" (1992) 8 Australian Journal of Law and Society 60.
5 See Stanley LUBMAN, Birds in a Cage : Legal Reform in China After Mao, Stanford
University Press, 1999 esp Chapter 5.
6 Quentin SKINNER, "Legal Symbolism in Earlier Renaissance Art : Ambrogio Lorenz
etti' s Frescos in Siena", 1994, The Cambrian Law Review 9. REVUE INTERNATIONALE DE DROIT COMPARE 1-2003 60
so common a product of the compromises involved in treaty negotiation.
The GATT contains an express obligation to publish all relevant laws,
including "judicial decisions". There is also an express obligation to admin
ister such laws "in a uniform impartial and reasonable manner" and