In the Name of Justice: Striving for the Rule of Law in China

Foreword

I have long believed that the rule of law is a critical civic virtue for the development of a just and thriving society. It is a view I have held in particular about China since the beginning of my involvement with the country more than twenty years ago. In those days, my enthusiasm for the topic was not usually matched by the Chinese officials with whom I interacted, but I felt confident that their views would change over time as China opened up to the world, especially the commercial world that would increasingly demand legal clarity as a condition for investing and trading. I have also felt that the rule of law should top the list of perennial issues discussed when the leaders of the United States and other major nations meet with their Chinese counterparts. As both an internal and external strategic matter, the goal for the Chinese state should be, on the one hand, to provide clarity and certainty to its own citizens about their rights and responsibilities and, on the other, to reassure the rest of the world that China intends to integrate into the international system seamlessly and as a positive contributor to relations between states. Therefore, I was heartened to hear Premier Wen Jiabao, in his meeting with a group of us from Brookings in late 2006, define the Chinese objective of “democracy” as comprising three primary components, one of which was the rule of law (the other two being elections and supervision based on checks and balances). Premier Wen stressed the need for continued reform to guarantee the Chinese legal system’s “dignity, justice, and independence.” That meeting catalyzed my research over the next two years into the topic of vii Foreword john l. thornton 00-2290-9 fm_Yu 10/25/12 1:48 PM Page vii political evolution in China. In order to understand the state of the country’s judicial system, I spoke to a broad range of Chinese and Western experts and practitioners, among them a vice president of China’s Supreme People’s Court and a professor at the Central Party School who had given lectures to the Politburo on the topic of the relationship between the constitution and the Communist Party. These discussions and research led to an article in Foreign Affairs in January 2008 in which I concluded that, while they still had much further to go, on the whole the Chinese had made notable progress over the past three decades on this particular aspect of democratic evolution. In 1979, at the start of the era of reform and opening initiated by Deng Xiaoping, the entire country had only several hundred attorneys and was beginning to reopen the law schools that had been shuttered during the Cultural Revolution. From the time of the Anti-Rightist Campaign of 1957 to the end of the Cultural Revolution in 1976, the National People’s Congress did not adopt a single new piece of legislation (other than passing pro forma the Constitution of the People’s Republic of China in 1975). In fact, the legislature hardly met for nearly ten years during the Cultural Revolution. By contrast, today there are more than 17,000 law firms operating in China and over 200,000 licensed attorneys. China has adopted 239 new laws in the past thirty years. Courts used to be staffed overwhelmingly with judges having little or no legal education, most of whom were demobilized military officers. In 1995 only 5 percent of judges nationwide held a bachelor’s degree. Today the Judges Law and its amendments have established basic standards for new jurists that require a college degree, passing the National Bar Examination, and at least two years of prior legal experience. There is evidence that citizens are turning to the justice system in increasing numbers to try to resolve disputes and for protection of their legitimate rights from the interests of corporations and the state. According to government figures, from 2006 to 2010, approximately 10 million cases were litigated in China, another 5 million were resolved without litigation, and about 1 million cases involved legal aid. Nonetheless, as the essays in this volume illustrate plainly, in too many instances China’s justice system still falls well short of the letter and spirit of the codes on its books. Corruption is endemic. Collusion among police, prosecutors, and judges remains widespread. And the most fundamental obstacle to further progress remains the question of judicial independence— whether the ruling Chinese Communist Party serves...