Autonomy, courts and the politico-legal order in contemporary China

Abstract

Both China’s political and constitutional systems demand a compliant and subservient judiciary. Politically, the court is a marginal institution in China’s political system and the Party controls the judiciary effectively through the Political-Legal Committee. But political control and a resulting judicial compliance and subservience are not the only story of the past 30 years in China. The political and economic changes in China have generated demands for the rule of law to supply political legitimacy, promote economic development and improve social governance. Within the Party, there has been a reformist tradition which advocates a functional separation between the Party and the legal institutions, an enhanced role of law and an expansive institutional autonomy of the courts. The relationship between the Party and the court is thus a dynamic one. While the Party has the absolute power, it has to refrain itself from intruding into the daily operation of the court and leave judges alone to handle the business of judging. The Party has its own objectives and repeatedly reminds the court of keeping the Party’s interest the priority in adjudication, but judges have to follow legal rules, procedures and their own professional standard in handling individual cases.