Chinese pursuit of judicial independence (1906-1937)

Abstract

This thesis is a legal history study mainly relying on archival materials including various official records, diverse historical press, and works of both the famous and the anonymous. It provides some new perspectives for explaining the deviation of Chinese pursuit of judicial independence from liberal-constitutionalism in early twentieth-century. By examining the discourses of Chinese powerholders and intellectuals, this thesis presents a unique Chinese variant of the idea of judicial independence. Such a Chinese creation had some particular features degrading the liberal-constitutionalism-orientation of the idea of judicial independence. However, this was not the only reason accountable for early modern China’s failure to achieve liberal-constitutional judicial independence. The judicial reformers of early modern China had to deal with a tension inherent in the building of modern state, which was a competition between centralization and decentralization of state power.

My thesis comprises three parts. The first chapter, being the first part, shows three unique features of the Chinese variant of the idea of judicial independence in early twentieth-century. The three features were the heterogeneity in early Chinese discourse on judicial independence, the combination of judicial sovereignty and judicial independence, and the imbalanced stress on the collective independence of judiciaries and the independence of individual judges. Because of its such three features, the Chinese variant of the idea of judicial independence deviated from the liberal-constitutional orientation of judicial independence in early twentieth-century.

As the second part of this thesis, the second chapter depicts how the independence of the judicial agencies at the center rose and fell between 1906 and 1937. This chapter divides the period into three stages, the late Qing era, the Beiyang period, and the KMT’s rule. Conducting a comparative study, this chapter finds that independence of the central judiciary reached its summit in the Beiyang period. My thesis considers decentralization of state power as one main reason for the relative independence and significance of the central judicial agencies of the Beiyang period.

The third part of this thesis is composed of the third and fourth chapters. The third chapter shows the attempts of the elites of late Qing and Beiyang periods to establish a national network of local judicial agencies independent of the executive government. Through particularly examining the two unexplored national judicial conferences in the 1910s, this chapter shows how judicial elites of the period compromised their ideal of and commitment to judicial independence. By examining the difficulties encountered by various local judicial agencies during the late Qing and Beiyang period, this chapter reveals why the elites’ commitment to liberal-constitutional judicial independence was destined to be undermined.

The fourth chapter manifests how the Kuomintang (KMT) attempted to establish a universal and effective judicial system around the nation from 1927 to 1937. The KMT hoped judicial agencies at the local level to be strong enough to be independent of various forces. In the meantime, the KMT did not want local judicial agencies as well as judges to be too independent to be able to undermine the governance of the KMT. Hence, judicial power, expected by the KMT, could be utilized to facilitate the implementation of the KMT’s policies. To reach such a goal, the KMT-led Nanjing Nationalist Government took many reform measures. This chapter examines the effects of such measures. By doing so, this chapter, in company with the third chapter, shows the complicated impact of (de)centralization of state power on independence of local judicial agencies in early twentieth-century China.

In conclusion, my thesis demonstrates two significant factors contributing to the deviation of Chinese pursuit of judicial independence from the ideal of liberal-constitutionalism in early twentieth-century. They were the distorted Chinese discourses on judicial independence and the tension between centralization and decentralization of state power in Chinese pursuit of a modern state. Presenting such two factors, this thesis is by no means arguing that these two factors constituted all reasons for early modern China’s failure to achieve liberal-constitutional judicial independence. Rather, it tries to engage in a dialogue with related scholarship, and accordingly, to explore more dimensions of the journey of judicial independence in China.