In the early years of this blog, when discussing China's court system, I would make it a point to emphasize that I was limiting my comments to how the courts handle business law matters. I did this for two reasons. One, my sense is that the quality of court handling of business cases is very different from the quality of judging given to criminal matters. Two, I am not the least bit qualified to talk about how Chinese courts handle criminal matters as I never studied Chinese criminal procedure and my firm has never (and will never) represented a Chinese criminal defendant. Working in tandem with Chinese lawyers, we have represented a number of foreigners in criminal proceedings in China, but those cases do not qualify me to speak on China's criminal justice system as a whole. For these same reasons, I always beg off whenever journalists contact me for my legal analysis on this or that high profile criminal case in China.?
I thought of all this today while reading a post by Stan Abrams, entitled, "Zhao Lianhai and Criticizing China’s Legal System." Stan is all up in arms (and few people do better when up in arms than Stan) about a Peter Foster blog post, entitled, "Zhao Lianhai’s Apology Exposes the Utter Mess of China’s Legal System." Grossly summarizing Stan's ire, it stems from Foster's conflating the Zhao Lianhai case into a claim that China's entire court system is rotten to the core and utterly worthless.
Stan then makes the following case:
But to take the criticism to the next level, saying that China’s legal system is an “utter mess” or that it is functionally nonexistent, well, this is way over the top. Perhaps Foster falls into use of such hyperbolic language because the judicial cases he looks at are the “bad” ones, like that of Zhao Lianhai or perhaps Xue Feng, a US geologist sentenced to 8 years on a state secrets charge.?
One can criticize these cases on their merits, on the choice of the government to get involved in the first place, or on the resulting erosion of public confidence of the judiciary. But if you focus on these cases, you get a very skewed view of China’s legal system.
Lots of law professors have written entire books about this subject, so let me make some sweeping generalizations of my own here in the interest of brevity. China’s legal system is complicated and deals with a wide range of subjects. Highly-charged political cases involving whistleblowers and dissidents are important cases, but they represent a very tiny fraction of judicial activity.
China has a thriving court system, and the number of civil cases, for example, has skyrocketed in recent years along with economic growth. Obviously the public retains some confidence in parts of the legal system here.
Speaking for myself and my own experiences as a lawyer, I have seen tremendous strides made within the legal sector as successive waves of reform have targeted the way courts are run, cases are handled, and judges are selected and trained. China’s economy would not be where it is today without a functioning legal system, its many flaws notwithstanding.
I don’t think anyone would point to the Zhao Lianhai case as an example of China’s legal system at its best. On the other hand, it and other politically sensitive cases represent only one aspect, albeit a very significant one, of China’s judicial framework and its approach to Rule of Law.
Let’s not pretend that a functioning legal system doesn’t exist in this country or that it has not made tremendous progress to date. Whether it can ever reach a point where Westerners would be comfortable with China’s interpretation of Rule of Law, however, is a question for the future.
I completely agree with Stan and I expressed similar views in a 2006 post, entitled, "The Yin And Yang And The Apples And Oranges On Chinese Courts."
What do you think?
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