One China, Many Systems

Randall Peerenboom, Professor of Law, La Trobe University
2 Jan 2009

According to the World Bank’s recently announced World Governance Indicators, China ranks in the 42nd percentile of all countries on rule of law, roughly comparable to Brazil, Guyana, and The Philippines, substantially better than Kenya, Laos and Tajikistan, but demonstrably inferior to the UK, Australia, Japan and other economically advanced countries.

These results are not surprising given the high correlation between wealth and most good things in life, including rule of law. To use a more meaningful baseline, China outperforms other lower-middle countries on rule of law and most other good governance indicators, with the exception of corruption, and on most human rights and development indicators, with the exception of civil and political rights.
 
There is not one legal system in China – there are many.
 
While the World Bank’s aggregate rule of law indicator is useful in providing a very rough and ready measure of a country’s legal system, it fails to capture the complexity of China.
 
There is not one legal system in China – there are many. The quality of justice varies dramatically by type of case, level of court, and region. The courts regularly handle commercial and civil cases, and even most administrative cases, in a fair and efficient fashion. Notwithstanding various jurisdictional and institutional obstacles, Chinese citizens are more successful suing the government than citizens in the U.S., Japan or Taiwan.
 
Criminal cases are another matter. China has repeatedly revised criminal laws to strengthen the rights of the accused, increased the role for defense lawyers, and raised the level of professionalism of prosecutors, police and prison officials. Nevertheless, the accused often do not enjoy the rights provided in laws, lawyers are still harassed for defending criminals, and prison conditions remain harsh.
 
the accused often do not enjoy the rights provided in laws, lawyers are still harassed for defending criminals, and prison conditions remain harsh.
 
The transition to a market economy, urbanization and demographic changes have led to spiraling crime rates, undermining public support for criminal law reforms and strengthening the hand of law enforcement agencies. In addition, prosecutors, police, lawyers and judges are still adjusting to the shift from a more traditional European inquisitorial system to a more Anglo-American adversarial system. Cultural factors also play a role, including majoritarian preferences for social stability and a traditional emphasis on substantive justice that makes it harder to take the procedural rights of criminals seriously.
 
Law continues to take a back seat to politics in cases perceived to threaten the socio-political stability, such as those involving groups attempting to establish political organizations or public demonstrations and protests.
 
Law continues to take a back seat to politics in cases perceived to threaten the socio-political stability, such as those involving political organizations or public demonstrations.
 
As in other developing countries, socio-economic cases involving pension and welfare claims, labor disputes, land takings and environmental issues also present problems because institutions are weak and the state lacks the financial resources to address what are in essence economic issues.
 
While institutions are generally weaker in China than in developed countries, there is again significant variation. Judges in higher level courts are on the whole more competent, less corrupt, and less subject to pressure from local government officials to decide in favor of local parties than judges in lower level courts.
 
There is also considerable variation by region and within regions between urban and rural areas. Some large cities in developed regions such as Beijing, Shanghai, and Guangdong are similar to middle-income countries, while other parts of China are as poor as some of the poorest countries in the world. As expected, the legal system in the more developed areas functions better than in poor areas. There are more and better law schools and lawyers; the courts are better funded; judges are more qualified; there is less local protectionism and corruption; and the enforcement of judgments is easier. As a result, people in wealthier urban areas are more likely to turn to the courts to resolve their disputes, and they are more likely to be satisfied with their experience than people in poorer rural areas.
 
During the last three decades, the government has invested heavily in judicial reforms in the belief that a market economy requires the rule of law, and to bolster its legitimacy by providing citizens a fair and efficient forum to pursue their interests, resolve disputes and hold government officials accountable. Yet the sheer size and complexity of China complicates the process of designing and implementing reforms.
 
At a more fundamental level, the continued reliance on Party organs and political means to handle cases perceived to threaten socio-political stability highlights the difference between the establishment of a “socialist rule of law state” and a liberal democratic rule of law.
 
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Randall Peerenboom is Professor of Law at La Trobe University and Programme Director of the ‘Rule of Law in China’ programme at the Foundation for Law, Justice and Society, a thinktank affiliated with Oxford University’s Centre for Socio-Legal Studies.