China Law Is Policy

Excellent post by David Wolf on the Silicon Hutong blog on the underpinnings of Chinese law. Entitled "When is Innovation Indigenous?" it says law in China is used strictly to advance policy, not "to build a system that will withstand the test of history":

The Chinese government is not interested in legislating on the basis of establishing a principle, taking into account hypothetical problems that might arise in the future (an approach that stands opposed to the Talmudic traditions at least, and probably those of Justinian, English Common Law, and the Napoleonic code). Indeed, the nation's bureaucrats and policy makers are far more interested in using the law as a tool to serve near-term policy goals, rather than use law to build a system that will withstand the test of history. (Hence the old saw "rule by law, rather than rule of law.")

* * * *

This is another one of those critical differences in viewpoint between the two cultures. In the west, policy and government action occur with the framework of law. In China, the law occurs within the framework of policy and government action.

Is the law important in China? Absolutely, and getting more so over time.

But pay attention to policy. Those will tell you how the laws will be interpreted and acted upon.

Wolf has it right.

Without an independent judiciary, China's courts are doomed to be a policy arm of the government. This does not mean China's courts will necessarily rule unfairly, because one of the government's policies is that the courts be respected and fairness is a necessary precondition for that. But this does mean that we should not expect much innovation from China's courts and we certainly cannot expect them to go much against governmental goals, if at all.

China's courts will go with the governmental tide, not against it.

Comments

Making laws open ended to suit national policy may have some benefits regarding flexibility, but it can also reflect a complete lack of moral structure in government and society and sets in stone the idea that the emporer/president of China and individual cadres can bend the rules to meet their PERSONAL needs as well. And as long as local and provincial courts don't face serious crackdowns, they will drift further and further from Beijing so that they can make rulings completely within the law that benefit local cadres, even if that goes against Beijing's wishes.

Hu Jin Tao ought to dawn a yellow robe and stop with all of the pretenses.

Posted by: nanheyangrouchuan | December 21, 2006 9:01 AM

I disagree with the whole premise of the article. English Common Law was established by the English monarchy during the Middle Ages as a means of exerting power over the baronial courts. The Code Napoleon and Code Justinian were compilations and restatements of pre-existing law (jus commune and Roman law). The Talmud consists largely of applications of Rabbinic law to specific cases.

In the case of English Common Law, courts in fact are forbidden from ruling on any hypothetical situation.

In the case of both English Common Law and the Codes Napoleon and Justinian (and for that matter the German BGB), the law came into existence for *precisely* the same reasons that the Chinese government is pushing law. Legal systems greatly increase the power of the central government as they encourage standardization and reduce uncertainty.

In the case of China, law exists as an instrument of state policy in exactly the way that it did under the English monarchy, France under Napoleon, and Germany under Bismarck. If the Chinese government has specific policy goals, they can change the law to meet those goals.

Also China has a civil law system, which means that while the courts are supposed to rule impartially for the law as written, they aren't supposed to do anything innovative. If those go against government goals, the government can change the law.

Posted by: Joseph Wang | December 21, 2006 12:50 PM

I read David Wolf's post yesterday and immediately wondered what you, as a lawyer practicing in China, would think about it. Thanks for reading my mind and blogging it :)

Posted by: Kevin S. | December 21, 2006 4:56 PM

nanheyangrouchuan --

China has a lot of laws and they just seem to keep coming. Laws give a government power, but you are right to question where that power is going. Is it to Beijing or to the local cadres whose actions oftentimes hurt Beijing?

Posted by: China Law Blog | December 21, 2006 5:52 PM

Mr. Wang --

Thanks for checking in. You raise some great points.

I agree with you on your legal history on English Common Law and the Codes Napoleon and Justinian (with the caveat that I know almost nothing about the Napoleonic or Justinian Codes), but I think you are wrong to compare China's present day legal system to the US and British systems or Talmudic law.

China's courts are an arm of the government and its decisions are rendered accordingly. Now, I have argued many times in the past that it behooves the Chinese government to have a fair and impartial judiciary ruling on business cases and I think that the courts in the bigger cities strive for that. But again, that is because that is what Beijing wants.

The Talmud seeks to mediate relations among humans pursuant to God's law. If anything, it is anti-government.

The US courts (I will just assume British courts are similar, though I will admit I know very little about them) are independent of the "government" and even sometimes act at cross-purposes to the government.

You are also right to note that common law courts (at least in the US) do NOT rule on hypothetical matters (nor, as far as I know, do Talmudic courts). Yet, these courts do far more than rule on the matter right in front of them as they are always mindful of how their ruling will affect future decisions and behaviors. In thinking about the future (ignore the word hypothetical here) these courts are not necessarily thinking about how to effect government policy.

Posted by: China Law Blog | December 23, 2006 8:09 AM

Kevin S (Weifang Radish) --

Thanks for checking in. New blog design or just for the holidays?

I did the post because I knew you would be thinking that.

Posted by: China Law Blog | December 23, 2006 8:13 AM