Placing Power in the Cage of Law: Judicial independence in China

AuthorCaitlin E. Schultz
PositionCapital University Law School, juris doctor candidate 2016. University of Missouri-Kansas City China Summer Law Program at Peking University, student, Summer 2015. Muskingum University, Valedictorian, BA in journalism, 2010. Lanzhou University, Gansu Province, China, visiting student, 2008?09. Thank you to Dr. Thomas McGrath, Associate ...
Over the past fourteen years, the United States Congress has allocated
$320 million to aid programs in China specifically targeting human rights,
democracy, rule of law, and related activities.1 Aid went to projects
supporting China’s own judicial independence goals, including government
transparency, criminal justice reform, and access to legal counsel.2 This aid
has decreased over time, especially as China has become more capable of
financing its own development.3 Critics of U.S. monetary support to China
point to marginal results because of “political constraints” and suggest
focusing on “changing China’s approach to the law rather than expanding
existing rule of law programs.”4
China is making great strides in changing its approach to the law without
support from the United States. What China needs more than financial aid
or outside incentive to improve its own judicial processes is for the United
States to fulfill its statements that its leaders so often speak of: promising to
render intangible support, encouragement, and a spirit of cooperation.5
Copyright © 2016, Caitlin E. Schultz.
* Capital University Law School, juris doctor candidate 2016. University of Missouri-
Kansas City China Summer Law Program at Peking University, student, Summer 2015.
Muskingum University, Valedictorian, BA in journalism, 2010. Lanzhou University, Gansu
Province, China, visiting student, 200809. Thank you to Dr. Thomas McGrath, Associate
Professor of History at Muskingum University; to the Sinocism newsletter for delivering
timely and interesting China news and co mmentary; and to Jeffrey Snapp, Professor of Legal
Research and Writing at Capital University Law School.
2 See id.
3 See id. at 2.
4 Id. at 3.
5 See Press Release, The White House, Remarks b y President Obama and Vice President
Xi of the People’s Republic of China Before Bilateral Meeting (Feb. 14, 2012),
vice-president-xi-peoples-republic-china-bil. On February 14, 2012, President Obama stated,
The United States cannot change China, but China can change China.6
If the United States focuses its support on encouraging China’s judicial
reforms, both nations will benefit and come closer to a spirit of cooperation
and understanding.
On October 23, 2014, the Central Committee of the People’s Republic
of China7 announced a major plan for legal reform.8 This plan is universally
translated as “rule of law” reform, but outsiders attack the reform’s
translated name and substance because of its improbability of achieving the
[It] is absolutely vital that we have a strong relationship with China. And
we have continually tried to move forward on the basis of recognizing
that a cooperative relationship based on mutual interest and mutual
respect is not only in the interests of the United States and China, but is
also in the interest of the region and in the interest of the United States
in the interest of the world.
6 See, e.g., Dan Blumenthal, Is China at Present (or Will China Become) a Responsible
Stakeholder in the International Community?, REFRAMING CHINA POLICY: TH E CARNEGI E
DEBATES (June 11, 2007),
%20Stakeholder%20Final%20Paper.pdf. “Only China can change China. . . . [W]e cannot
convince China to conform to our definition . . . . It will have to do so on its own.” Id.
7 The nation is officially called the People’s Republic of China (PRC), but this Comment
will simply refer to it as “China.” The PRC is not to be confused with the Republic of China
(ROC), more commonly known as Taiwan, over which the PRC claims sovereignty. The
PRC is sometimes referred to as “mainlan d China,” excluding not only Taiwan but also Hong
Kong and Macau, two Special Administrative Regions (SARs). Moreover, the PRC came
into existence in 1949, and this Comment discusses cultural, linguistic, and historical matters
not limited to post-1949. For a discussion of the PRC, the ROC, and SARs, see SUSAN V.
POLITICAL SYSTEM 1, 9 (2013), R41007.pdf.
8 See CCP Central Committee Decision Concerning Some Major Questions in
Comprehensively Moving Governing the Country According to the Law Forward, CHIN A
COPYRIGHT & MEDIA BLOG (Oct. 28, 2014), http://chinacopyrightandmedia.
forward [hereinafter Decision Translation].
Western9 standard of rule of law.10 At the conclusion of the planning
meeting, the committee publicly released the Chinese Communist Party
Central Committee Decision (Decision), 11 which explains the judicial
reforms and describes them from a uniquely Chinese perspective on law and
governance.12 Modern Chinese politics is rooted in China’s historical legal
tradition,13 and understanding this background is essential to improving U.S.
foreign policy toward China.
Xi Jinping 14 repeatedly emphasizes the nation he leads will not
transition to a Western democracy.15 China’s leaders clearly express that
sentiment, and the Communist Party of China is “still the most important
political and developmental force for contemporary China.”16 Although
China could potentially achieve the Western standard of rule of law, the
standard is inapplicable to China’s current system of governance.17 China
is capable of moving toward a strong and independent judiciary that places
9Westernrefers not to a geographic area of the world, but rather to the modern political
distinction of nations that exhibit liberal democracy. This use is an oversimplification, but
the label highlights the black-and-white approach toward China’s very gray politics and
10 See, e.g., Paul Gewirtz, Opinion, What China Means by ‘Rule of Law’, N.Y. TIMES
(Oct. 19, 2014),
11 Decision Translation, supra note 8.
12 See infra Part IV (describing “Socialist rule of law with Chinese characteristics”);
Decision Translation, supra note 8, at art. I.
13 See infra Part II.A.
14 Xi Jinping is the President of the People’s Repu blic of China and the General Secretary
of the Communist Party of China. See LAWRENCE & MART IN, supra note 7, at 2. His dual
role as leader of the state and leader of the Party gives hi m great power over China. Id.
15 Angela Meng, Xi Jinping Rules Out Western-Style Political Reform for China, S.
CHINA MORNING POST (Sept. 6, 2014),
/1586307/xi-jinping-rules-out-western-style-political-reform-china. According to political
and legal expert Jacques DeLisle, Xi Jinping believes unifying the leadership will develop
the nation, and one “long-standing Chinese leadership critique of Western-style democracy
is that it is prone to paralysis and gridlock and ultimately governmental weakness.” Id.
16 Zhu Suli, The Party and the Courts, in JUDICIAL INDEPENDENCE IN CHIN A 52, 5253
(Randall Peerenboom ed., 2010).
17 See infra Part II.A.

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