International Law

China Rule of Law: the Latest From Jerome Cohen

By Stan

China law guru extraordinaire Jerome Cohen’s latest on China and the Rule of Law is a slight departure from the usual. He goes off on a rather unexpected tangent to discuss the latest scandal with the Governor of New York (Paterson, not Spitzer).

Cohen uses the Paterson scandal to show that even someone as powerful as the Governor of New York is subject to the rule of law, and the justice system there is well equipped to handle the matter. In part, this is due to the independent press investigating such scandals, a relatively independent judicial system, and an electoral system that allows for accountability.

All well and good, but this intro language from Cohen is what I most appreciated:

The most formidable challenge to China?s establishment of a credible ?rule of law? is neither the quality of its legislation nor the professional competence of its judges, prosecutors, lawyers and police. Laws and the skills of those who apply them have both witnessed substantial progress in the People?s Republic during the past three decades.

The real challenge to the administration of justice in China is, rather, the undue intrusion of politics and, even more broadly, of ?guanxi?, the network of interpersonal relations of mutual protection, benefit and dependency that is one of the enduring hallmarks of Chinese society. Courts and judges have much to lose and to fear if they ignore these influences. Such well-known distortions of the legal process as ?local protectionism? and corruption are specific manifestations of politics and ?guanxi?.

That’s an important distinction. China’s judges and laws have made tremendous progress in recent years, and that should be noted when relevant. The institutions and participants are no joke and should be given respect.

That’s not the problem. The challenge facing the government as it strives for rule of law in this country is political influence over the system. This takes place in every country of course, but it is a particular problem here.

Political influence erodes the rule of law by making outcomes subject to things like guanxi as opposed to the merits of a case. This is one of the many reasons why the Central Government has been cracking down on local corruption and, to a lesser extent, local protectionism. When this sort of thing goes on, litigants lose confidence in the system and the need for extra-legal means of obtaining justice increases.

The biggest unanswered question, though, is whether rule of law is something that can be obtained while still having limited political influence over the judiciary (i.e., rub out local guanxi and protectionism, but maintain ultimate authority in the hands of the CCP).

Jury’s still out on that one.

© Stan for China Hearsay, 2010. | Permalink | 5 comments | Add to del.icio.us
Post tags: China Law, guanxi, independent judiciary, jerome cohen, local protectionism, rule of law

Full post as published by China Hearsay on March 04, 2010 (boomark / email).