Note to Media: High-profile Criminal Cases Are Not Representative of China’s Judicial System

November 6, 2012

I don’t know about you, but it annoys the hell out of me when the foreign press grabs onto the latest high-profile criminal trial, invariably one that involves a hot-button political issue and, preferably, a media-savvy dissident with Western contacts, and suggest that this court case, or the underlying policy debate, is somehow an indictment of China’s entire judicial system.

For example, NPR in the U.S. ran an article a few days ago entitled “Can China’s Legal System Change?” Excellent, thought I, here’s something I can sink my brain into for a few minutes. Perhaps this was a discussion of the recent amendments to the Civil Procedure Law, an analysis of the reforms to China’s death penalty regime, or a report on the latest judicial reform white paper?

I was disappointed to find that the article was not at all about China’s legal system, but really just an extended interview with a certain famous blind dissident who is now in residence at New York University. The interview did cover legal reform, but the discussion was limited to the One Child Policy, thug cops, and the treatment of this dissident’s family. Rule of law and the lack of an independent judiciary in China was mentioned several times but never developed beyond the level of a sound bite. And let’s face it, this guy is not exactly a neutral source of information on the Chinese legal system.

I’m not trying to belittle dissidents, or the media who report on their activities. However, as exciting as these criminal trials, detentions and protests are, this is a big country and there is a lot more going on here. For example, China now boasts the second-largest economy in the world and has a very busy court system that (Breaking News!) contains a civil division. If any of you in the media are unfamiliar with this term, it refers to those cases, such as commercial disputes, that are not criminal trials. Yes, judges often do other things in China besides hear politically-charged criminal cases.

The number of these commercial cases taken to court in China has been rising rapidly for many years. If there was really no rule of law in China, why do you think that all these Chinese folks would be flocking to court to settle their business disputes? Hmm, that’s a tough question.

Let me suggest something that may be a bit surprising to some of you out there. Suppose, just suppose, that these famous cases represent a very small minority of judicial action in China. And now further assume that for decades, China’s courts have been reformed and that judges have gotten better through training and experience. Imagine, if you will, that for the majority of civil cases, if not criminal actions, rule of law is functioning very well, thank you.

Now, before anyone has time for a rebuttal, let me stipulate to a few things. China’s courts are not immune to problems like corruption, local protectionism, political interference and inexperienced judges. My above point is not that these things have been wiped out in China, but rather that they have been minimized to the point where we can say, with a straight face mind you, that they are no longer the rule in most places (and particularly in the large cities on the East Coast).

I’ll further stipulate that China does not, in fact, have a completely independent judiciary and that political interference is common in certain types of cases. Again, my point is that these cases do not represent the vast majority of civil or criminal actions in China, and therefore using them to make a general assertion about rule of law in China is inaccurate and misleading.

C’mon media, give us some nuance once in a while, and lay off the generalizations.

7 thoughts on “Note to Media: High-profile Criminal Cases Are Not Representative of China’s Judicial System

  1. Paolo Danese

    Sorry Stan,
    I usually appreciate your articles but I think the above is way off.

    The article you mentioned, thanks for the link, closes with:
    “If all this seems as if it would make Chen despondent over China’s legal system, it doesn’t. China has an extensive code of laws and Chinese lawyers continue to press for reform. Chinese people — everyone from farmers to factory workers — are increasingly sophisticated and aware of their legal rights.”

    It kind of renders the point you made moot, doesn’t it? At the same time it show a certain, how to say, cynicism on your side. I feel as if you are telling readers: “Well, it’s a system with plenty of exceptions where it counts (people getting detained/tortured/killed for opposing the central govt) but hey, at least they let the moneymakers get by with little fuss!”

    Sorry, I can’t agree with that.


  2. Cristobal DeLicia

    I have to agree with Paolo. When the system functions well and justice is served, it ceases by definition to be news. On the other hand I’ve seen estimates of up to 4,000 death penalty executions in China annually, which is several times all the rest of the world combined. You are asking us to ignore the elephant in the room, because it is such an interesting room!

    1. Justin

      Cristobal, you use the figure 4000 as if the very number is an argument in of itself. The death penalty has near total support from the Chinese population and whether you agree with them or not is kind of irrelevant to the question is it not?

      *one of the things I hate most about on the internet is having to track down sources but here it is.

      Public opinion in China on the death penalty.

  3. Peter Arthur

    And I third Paolo. Normally astute (and I perfectly understand your frustration with overly simplistic reports such as this one) but way, way off this time I’m afraid.
    The very fact that rule of law can be blatantly ignored by the Party when it suits gives lie to the existence of any REAL rule of law. Just because those in power don’t deign themselves to interfere in every piffling civil case doesn’t mean they don’t have the ability to do so, should they so choose. The Party simply isn’t interested in Xiao Wang’s dispute with Xiao Li over who owns the sweet potato stand. Unless of course either Xiao or Li has decent party contacts – then all bets are off.
    You ask, “why do you think that all these Chinese folks would be flocking to court to settle their business disputes? Hmm, that’s a tough question.” No, not tough at all;
    1. More businesses = more business disputes.
    2. Almost any Chinese citizen involved in such a situation will employ two parallel tactics. First through the formal legal system – even if only for the sake of showing official procedures were followed. Secondly, through their social network (and we’re not talking qq here) i.e. start tapping their social capital account like Richard Feynmann on the bongoes until they get the ear of ‘someone with influence’ on the case.
    For the average laobaixing that’s tough – getting someone with real guanxi firepower on their side is extremely unlikely. This means that in the case where both litigants are equally bereft of real influence, you may well see a case decided on its merits. Hurrah for that giant leap for Chinese justice.
    Essentially rule of law gifted and withdrawn on the whim of the powers that be is no rule of law. End of.

  4. mercadee

    Since 1979, when the drive to establish a functioning legal system began, more than 300 laws and regulations, most of them in the economic area, have been promulgated. The use of mediation committees, informed groups of citizens who resolve about 90% of the PRC’s civil disputes and some minor criminal cases at no cost to the parties, is one innovative device. There are more than 800,000 such committees in both rural and urban areas.

  5. anon

    Stan has a fair point, guys. At the same time, there’s a bit of a straw man argument here, perhaps in response to another straw man argument. To analogize, it seems like every time there is a high-profile, racially charged incident involving law enforcement in the US, there are those who try to deny the systemic issues by saying, “The vast majority of police officers are good people who do a fair job of enforcing the law” and/or “the vast majority of cases are not affected by racial bias.” Both statements may be true, but they don’t mean that racial bias is not an enormous, systemic problem within the US law enforcement apparatus, or that the the high profile events are not 100% representative of a problem that goes mostly unreported in the media.