Chinese Courts as Embedded Institutions, Kwai Hang Ng and Xin He
Underneath the legal ideal of judicial independence or autonomy, what does it mean to say courts are embedded institutions? In their book Embedded Courts, Kwai Hang Ng and Xin He propose an analytical framework consisting of four types of institutional embeddedness for Chinese courts, namely, administrative, political, social, and economic.
Arguably, Chinese courts are an exceptional case in the sense that the party-state, especially its administrative bureaucracy, dominates both the formal structure and the daily operation of courts. Nevertheless, these four types of embeddedness also widely exist in other Asian countries, sometimes in less explicit forms. Among them, administrative embeddedness is perhaps the most prevalent, especially in civil law jurisdictions. The dual identity of court leaders that Ng and He describe in this chapter is also at the heart of an empirical, sociolegal understanding of judicial autonomy.Courts deal with multiple external constraints. These constraints set limits to when their judges can use the law and when they have to do away with the law. The constraints come from different sources. A reference group includes her colleagues and seniors, judges in higher courts, local political leaders, mass media, and “trouble-making” litigants. Together, these different strands of constraints constitute a court's institutional environment of judging. This environment is the context through which judges make their everyday decisions. To use law as a means to resolve social disputes in China is always contingent upon the courts' interactions and shifting relations with other state actors, the public and the mass media, and the litigants.
The institutional environment of judging in China is highly fluid and ever evolving. To put it in sociological parlance, the development of the juridical field of China remains at a nascent stage.
A field, according to sociologist Pierre Bourdieu, is a well-demarcated social space whose logic of practices is shaped by its own field-specific interests. Accordingly, a juridical field is one that converts direct conflicts between parties into regulated debates between (legal) professionals who accept the rules of the field. A strong field is one in which players can operate in a relatively stable institutional environment - actors have to adjust to the rules of the game, rather than the game having to change its rules on an ad hoc basis to adjust to the interests of powerful actors. Powerful actors dominate by playing by the rules, i.e., holding a monopoly over legitimate practices. The legal field of China, however, is limited in its ability to translate social, political and economic conflicts into legal disputes. This limitedness means that legal disputes are often not resolved by legal rules, but have to be dealt with by other rules - for example, as social or political conflicts as well.It is in this sense that we suggest that the Chinese courts are deeply embedded institutions. We use the term “embeddedness” to describe the open-ended and indefinite character of the institutional environment of judging within which the courts operate. The contingent character of judicial actions is particularly pronounced in the case of China. [...]
We emphasize the immediacy and directness of external influences in China. The Chinese system differs most markedly in that the influences of other social realms are deeply embedded within the bureaucratic process of resolving problem cases. By and large, Chinese courts now follow standard procedures to deal with new, incoming cases at the grassroots level. But Chinese judges are not persistent in applying the law. It helps if one understands how Chinese judges think. For them, when the law fails to satisfy all parties, it becomes the judges' “problem.” The case at stake becomes a “problem case” that requires further actions from the judiciary.
What these further actions entail all is too-often guided by mixed and complicated considerations, including public reactions, social stability, control over resources, and personal connections. This enigma is well captured by a comment made by a head judge from Zhejiang. The judge said to us during his interview, “Do you know what's really surprising about our laws? China is not a democracy. The Communist Party can pass whatever laws it wants to make. Who could've thought that carrying them out is so darn difficult?” But if the law is just one among many forms of central policies, it should not be so surprising after all. As Xueguang Zhou points out, “The more uniform the state policy and/or the greater the separation between policy making and implementation, the less the fit between the policy and local conditions, therefore the greater flexibility allowed in the implementation process.” The law is the most uniform of all state policies; as a result, courts are flexible in not just carrying it out, but also deciding when to use it. [...]The judiciary is supposed to be a different government branch. In a liberal democracy, the court is supposed to be independent, though, as [Martin] Shapiro points out, this ideal of judicial independence is often unrealized. At a minimum, the court aspires to follow a relative clear set of rules (the law) in every step of the judicial decision process. This rule-based nature distinguishes judicial decisions from political decisions. Disagreements or blatant mistakes are addressed by referring to the same set of rules through an iterative mechanism of appeal. Administrative embeddedness refers to the high degree of selfsameness between the court and other government bureaus in its decision-making process. Important judicial decisions in China are at least partly based upon some assessment of non-legal factors. Administrative embeddedness can be analytically differentiated into two subtypes: internal and external. By internal administrative embeddedness, we refer to the manner in which the decisions of the Chinese courts are subject to the supervision and collective consensus-creating process of senior judges.
The superiors have strong decisional control over their subordinates. [...][T]he “administrative” review process of a problem case is structurally porous to such an extent that it becomes almost amorphous at the very top end. A Chinese court follows a decision-making structure that operates like an inverted sieve - as a case is kicked up, the context of consideration expands from one that is predominately (and narrowly) legal to one that is increasingly (and broad- eningly) social and political. As it goes up the administrative hierarchy, legal issues become embedded within a larger and larger social and political context of consideration. This “spiraling-over” tendency, as cases move up the hierarchy, is the most emblematic trait of Chinese-style judicial decision-making. Often, a judge cannot decide on her own but must coordinate both internally with senior judges in the court and externally with other local party organs and government bureaus, through various formal and informal mechanisms.This decisional hierarchy is an administrative bureaucracy. It certainly is different from the Anglo-American model of the professional court. It also deviates significantly from the judicial bureaucracy in the continental
European systems. In a judicial bureaucracy, the law and the rules governing the application of the law are followed as to what has to be done, regardless of who makes the decision. In an administrative bureaucracy, however, rules are only applied as to who should be in charge of making the decision. In other words, rules decide who makes the decision, but not so much how the decision should be made or what the decision should be. Instead, the designated decision-maker often, as in the case of China, actively refers to extra-legal reasons in arriving at her rulings.
While a judicial bureaucracy is designed to defend a juridical space within which officials with specialized legal knowledge can operate, an administrative bureaucracy emphasizes supervision and oversight.
This structure is vertically organized in a nested way to make sure that “problems” can be spotted and dealt with as early as possible. Chinese courts, from the very top (SPC) to the bottom (grassroots), from the biggest urban court to the smallest rural one, all share a similar basic organizational structure. Such a baseline structure made up of roughly three layers of supervision - with the collegial panel as the first layer, division meeting as the second, and the adjudication committee as the third. Each layer oversees a bigger pool of cases and holds veto power over the immediate layer below it. Power is distributed according to administrative rank instead of judicial expertise. At each layer, those who occupy senior administrative roles (the president, and to a much lesser extent, the vice presidents, division heads and deputy division heads) have broad powers over their subordinates. These power actors play a dominant rule in the vertical process of supervision. Hence, the degree of professional division of labor in fact descends as one ascends the hierarchy. Those at the top oversee everything.Chinese courts have not cultivated a rule-centered institutional culture (even though this is changing in some courts). Consistency and predictability, the qualities that define modern legal systems, are not entrenched as core values. Chinese judges in many grassroots courts are at their innovative best for finding ways to resolve “problem cases” without using the law, either by bargaining in the shadow of the law or by getting around the law and resorting to other means. In interviews, some Chinese judges acknowledge that it is challenging for them to follow the law if following the law will produce bad social consequences. They cannot just “go with the law” this time and wait for the law to change next time. Judges would not say: “Let's rule by the law even if we do not like the result. Our government will change the law and get the right result next time.” Judges are so involved in everyday governance that they would rather find ways to get around the law if following the law would jeopardize governance.
Because the courts are expected to achieve immediate responsiveness, they are not inclined to treat like cases alike (and when immediate responses are difficult to give, they tend to stall rather than to rule).This brings us to the second dimension of administrative embeddedness: the external dimension. External administrative embeddedness refers to the manner in which the Chinese courts and their judicial decisions are shaped by the sometimes converging, sometimes diverging interests among members of local party-state coalition. China's state bureaucracies, including the courts, coexist in a highly complex system of interdependency and competition. Courts, particularly those located in the inland region, work for other, more powerful government branches. The image of a professional court quietly and passively resolving cases fails to convey the sensitive and precarious atmosphere in which many of the courts operate. Courts are expected to provide support to local policies. This is shown, at a superficial level, by judges who are asked to show up in various local political campaigns, from anti-corruption to promotion of public hygiene. More important, courts are expected to support local governance by being “friendly” in judgments involving local government and state-owned enterprises. This has led to the persistent charge of local favoritism among Chinese courts. [...]
As an institution, the court has a dual nature. This dual nature is reflective of the character of the Chinese state as a party-state. The court is both an organ of the local party-state and a unit of the judicial hierarchy. Local party and government officials can influence a grassroots court through the Chinese Communist Party (CCP)'s Political-Legal Committee (PLC). The PLC is composed of senior officials from the local party committee, relevant government branches, the procuratorate, and people's congress. The court president is also a member of the PLC. She is also a member of the local governance coalition. But the committee is usually headed and convened by a senior party member who often serves in the government, such as the head of the police.
By the same token, the court president plays a dual role. On the one hand, she is the head of the court. She and her judges are the officials who apply the law locally. On the other hand, she serves as the vessel to facilitate the flow of information between the court and other members of the local party-state. She is involved in formulating key policies. When the president discusses matters with other core members of the governance coalition, she thinks as a senior bureaucrat. The context of consideration is not merely whether a decision is legal or not. The president has to persuade (and be persuaded) and bargain with other bureau heads. The coalition as a whole must balance the bureaucratic interests of different departments. The outcome of their consideration will depend on their respective political weight and on their ability to demonstrate that a certain course of action that benefits the court is most desirable, in the bigger interests of the party-state and the public.
The necessity of political consideration means that court leaders are chosen from a pool of pragmatic bureaucrats. Certainly, court presidents come in different shades. Some are tigers and some are tabbies. Nevertheless, scholarly intellectuals rarely make Chinese senior judges. These judges are deft, worldly administrators. They play the role of “politician” for their courts. They assess not just the legal, but also the political merits and risks of a certain pending decision. Their risk assessments are crucial for determining the court's decisions on “problem” cases.
Often, the two halves of her dual identity collide. She must therefore tread a fine line between carrying out the law and working with local government officials, who have considerable control over the courts' personnel and budget, and, increasingly, responding to the media and public opinion. Senior judges know the importance of not appearing too subservient to local governments. Sometimes judges have no choice but to apply imposed solutions, but at other times they exploit the power fragmentation of local government in order to allow themselves to exercise innovation at the margins. For example, while weak local courts must restrain themselves from using the law positively to defy the will of the local party-state, some are able to innovatively decline the use of law to promote the interests of powerful local political players.
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