Randall Peerenboom, "Judicial Independence in China: Lessons for Global Rule of Law Promotion"

Law and Politics Book Review
Vol. 20 No. 11 (November, 2010) pp.595-601

Reviewed by Michael W. Dowdle, National University of Singapore Faculty of Law.

"Judicial independence” is a difficult metaphor. No effective judiciary is truly independent. Judicial effectiveness relies more on interdependence than on independence per se. Of course, when looking at familiar constitutional systems, this distinction – between independence and interdependence – is obscured by our cozy familiarities. In the United States, for example, we celebrate the effects of life-time tenure, but ignore those of the political vetting processes that take place prior to nomination.

All in all, however, our judicial system works, and that alone appears sufficient to give us confidence in the ultimate independence of our judiciary. But problems arise when we apply this metaphor to what we might call “alien” constitutional systems – constitutional environments whose fundamental organization is incompatible with our constitutional presumptions. Here, the relationship between constitutional structure and constitutional consequent are often complicated by the presence of unfamiliar social dynamics that are unaccounted for by the standard constitutional anticipations that derive from our own understandings of our own constitutional systems. Understanding these alien systems requires us to approach them as distinctive systems in their own right, and not as simply ersatz reproductions of our own.

This is what Randall Peerenboom’s edited volume, JUDICIAL INDEPENDENCE IN CHINA: LESSONS FOR GLOBAL RULE OF LAW PROMOTION, does in the context of the People’s Republic of China [PRC]. The PRC’s is clearly an alien constitutional structure, as we defined the term above. It is not founded on multi-party, democratic elections. It does not, for the most part, work to limit governmental power or to protect the politically vulnerable. It does not revolve around an ultimate intention to preserve one’s exercise and enjoyment of those liberal rights that many regard as fundamental to being “human.” It affirmatively rejects the concept of “separation of powers” as a foundational organizing principle.

And relatedly, China’s constitutional system – if one even dares call it that – is routinely if not invariably seen as one in which the judiciary is not meaningfully “independent.” But what does that mean? What would or should judicial independence look like in the context of China’s constitutional system? What would or should it contribute to that system? These are questions that have rarely been asked – because we have tended to presume that their answers are the same with regards to China as they are with regards to the mature constitutional systems of the advanced industrialized democracies of the North Atlantic. Peerenboom’s volume suggests that this presumption is fallacious.

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