The judiciary pushes back: Law, power, and politics in chinese courts

Abstract

© Cambridge University Press 2010. Despite the passage of hundreds of laws and the expansion of the judiciary since the late 1970s, a dominant theme in the literature is that Chinese courts have enjoyed little judicial independence. The courts are often portrayed as little more than a loyal subordinate of the party–state that carefully carries out assigned tasks; they have virtually no will or capacity to resist the party–state's interference. However, recent developments have raised questions about how far, and under what conditions, the conventional wisdom that Chinese courts are incapable of resisting political pressure from superior powers holds up. The courts have refused to accept jurisdiction over some types of disputes that have arisen in China's unprecedented social transformation. This strategic retraction rather than expansion of judicial power is surprising in light of the global trend toward judicialization and the trend in China to extend the government's policy of “governance in accordance with law” to a widening range of economic and social activities. For some of these disputes, the courts' refusal to exercise jurisdiction may be explained by the inferior position of the courts: when superior political powers such as the party or the government do not want the courts to be involved in the dispute resolution process for political reasons, the courts have little room to disobey. This has been well illustrated in the handling of urban housing demolition disputes.