International Law

China?s Courts, Rule of Law, and the Recession

By Stan

Very interesting policy issue discussed in China Calling (Newsweek blog). Here’s the key passage:

In any economic downturn, there is much to keep courts occupied?bankruptcy and fraud cases are currently on the rise around the globe. In China, however, the economic crisis comes hand-in-hand with the threat of social instability, and every bankruptcy case and labor dispute is colored with the possibility of unrest. In this high-stakes environment the role that China?s judicial system should play is being re-imagined. China?s laws are taking a backseat and the country?s courts are being called upon to, above all things, preserve stability and promote growth.

It’s easy respond to this with a strict rule of law position, and I am naturally predisposed to go in that direction. On the other hand, you have to keep in mind that China’s economy and law is still in a transition period. We do not yet have an independent judiciary, and neither do we have well established social safety nets or wholly adequate judicial recourse for consumers and workers.

So while I normally do not like seeing the courts engaged in policy instead of simply applying the law, I am sympathetic to the exigencies of the moment. There are a lot of scary things going on that negatively effect average folks, and to the extent that courts can step in, maybe that’s not such a terrible thing. I know, this is somewhat of a step backwards for the judicial system — I recognize this as the better of two poor choices. Hopefully when the economy improves and better laws can be put into place in the areas of health care and other types of social insurance, I will be more inclined to return to a strict rule of law position.

Here’s a great quote from the Newsweek article, from China legal expert Randy Peerenboom, that sums this up well:

?If you simply apply the laws in China sometimes it produces unpleasant consequences for people,? says Randall Peerenboom, a law professor at La Trobe University in Melbourne, Australia.

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Full post as published by China Hearsay on March 15, 2009 (boomark / email).