Lost in Translation

Fixating on how China’s court system matches up with the American model, or those of other Western nations, only serves to overshadow more important issues. During a time of unprecedented, swift development within the Chinese judiciary, Professor Benjamin Liebman would much rather focus on what the country’s courts are doing now, and where they might be headed.

By David Hechler

Summer 2009

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Professor Benjamin L. Liebman spends most of his waking hours researching, teaching, and writing about China’s courts. His timing could not be better: Most experts, including Liebman, believe no judiciary in history has developed as quickly as China’s has over the past 30 years. But the subject has been particularly hot during the past year for a different reason. Some observers and media outlets seem convinced that a backlash is afoot.

They point foremost to Wang Shengjun, who was named president of the Supreme People’s Court (China’s highest) in 2008. Unlike his predecessor, who spent a decade prodding judges to raise professional standards, Wang isn’t trained in the law. He ascended to the position after a career as a Communist Party official. In one of his
first big speeches, Wang laid out guidelines for courts to follow: First they should consider the needs of the Party, then the needs of society, and finally the requirements of the law. The pronouncement elicited a great deal of chatter from those who follow
judicial developments in China. Then, in March, government officials told the
National People’s Congress that they would never adopt a Western model with an
independent judiciary.

Many academics paint these developments as a speed bump on the road to courts that will one day function like ours. Not Liebman, who directs the Law School’s Center for Chinese Legal Studies. To believe that, he would have to buy the premise that China’s courts are on a path to the Western model. And he doesn’t.

“We assume they want to be us,” Liebman says. And, to be sure, China has established professional standards that have moved its judiciary in our direction. Since 2002, Liebman notes, new judges have been required to hold undergraduate degrees—though not necessarily in the law—and to pass a national bar exam. (If that sounds like a low standard, it’s worth noting that up until 1994, no qualifications at all were required.)

Yet China’s courts are as deeply committed to populism as they are to professionalism. If Chinese judges decide to ignore a law in order to preserve thousands of jobs, they aren’t violating a sacred legal precept. “They’re supposed to take into account popular interests,” Liebman explains. “Populism in China isn’t just about ensuring courts are controlled by the Party. It’s an effort by courts to make themselves more responsive and accessible to the people. Professionalism hasn’t given courts more authority; the question is whether populism will.”

Lately, Chinese media and legal circles have been buzzing about efforts by the courts to improve their populist credentials. In February of this year, the president of the Henan province High People’s Court called on judges to cast aside their gavels and robes and to become less removed from the experiences of ordinary people. Meanwhile, practical initiatives have focused on reducing filing fees, clarifying legal procedures for litigants, and additional steps aimed at making it easier for ordinary people to use the courts. Among the goals, Liebman says, is raising the courts’ popular image, and perhaps also their authority.

In a forthcoming work, “A Return to Populist Legality? Historical Legacies and Legal Reform,” Liebman argues that many legal reforms in China that appear to import Western practices have been possible in part because of their resonance with China’s revolutionary legal tradition, which emphasized popular input and flexibility in the legal system. The development of legal aid and experiments with public hearings, for example, may look like they come out of the traditional Western-backed legal reform playbook, but they succeeded in China largely because they are consistent with traditional Communist ideology.

In another recent work relating to populism in China, Liebman examines the impact of protesting and petitioning on the courts—noting that such efforts often directly affect judges’ decisions. “Courts are afraid of instability,” he says, “even more so than of getting the law wrong.” Liebman documents numerous cases in which courts either changed opinions or paid off protesters in order to achieve harmony. In addition, he notes that many Chinese judges are evaluated in part on whether there are complaints from litigants about their decisions—regardless of the merits of such complaints. “Part of the job of a judge in China is to see that litigants accept court decisions,” he says. “So judges who decide cases correctly but fail to persuade litigants of the correctness of the decision have not done their job. They are supposed to decide the case and resolve the matter—not just decide the case.”

When Liebman arrived at Columbia Law School seven years ago, he inherited one of the strongest Chinese legal studies programs in the country. He is quick to credit Professor Emeritus R. Randle Edwards, who essentially created the program after he came to the Law School in 1973. A decade later, Edwards founded the Center for Chinese Legal Studies, which he led as director until his retirement in 2002.

It is hard to overstate Edwards’ contribution. He was one of the pioneers who managed to open a dialogue with the Chinese government as it emerged from the Cultural Revolution in the late ’70s. He helped create and then led a consortium of U.S. law schools that supported legal education in China, and invited Chinese scholars to visit the U.S. to study and share their knowledge with American law students.

Liebman’s personal history with the country dates back to the 1980s. His public high school in Newton, Mass., was the first in the country to initiate an exchange program with China. So in 1986, the gangly high school senior took an intensive six-week language course and moved in with a Beijing family for four months. “I was drawn to China,” he recalls, “because it was as different as possible from Newton, Mass.”

He came home hooked. “There was no question in my mind when I came back that China would be an important part of my life.” He even delivered Chinese food for an area restaurant in order to practice his Chinese. Locals were probably startled, he muses, to see a 6-foot-4-inch American delivering egg rolls.

These days, the 39-year-old professor travels to China about three times a year. His research is grounded in interviews with lawyers, judges, law professors, and journalists. He also believes it is important to present the results of his research in both the U.S. and China, so he frequently gives talks when he is there.

The fascination for Liebman is in watching Chinese courts advance—or lurch—in one direction or the other. Recently, he tracked the influence of the internet and the media on the judiciary. In some ways, he found, those entities further the rule of law; in others, they reinforce the primacy of the Party and popular opinion. “Part of the uniqueness of China,” he says, “is that it’s a single-party state in which the courts are playing a very important role. There are very few comparable examples.”

Liebman’s job, as he sees it, isn’t to advocate for one model or another. It is to observe and understand “the nuance of how the Chinese legal system is developing” and render a “balanced assessment.”

According to William Alford, a professor at Harvard Law School and director of Harvard’s East Asian Legal Studies program, Liebman is doing that, and more. Alford calls Liebman’s work on Chinese courts “superb.” Much of its strength derives from Liebman’s frequent trips to China, and his interviews and observations there. Alford also credits Liebman’s “absolute determination to be faithful to the complexity he finds, showing the ways in which the Chinese example is, and is not, explained by theoretical constructs grounded in the experience of this country and the West.”

A particular strength of the Law School’s program is the cross-fertilization that occurs at the Center for Chinese Legal Studies. Professor Edwards launched an initiative that now brings eight to 12 Chinese scholars to the Law School each year. Many are law professors; some are judges. The program has also made it possible for increasing numbers of Chinese law students to come to Columbia to complete LL.M. and J.D. degrees. This year, 45 students from Hong Kong, Taiwan, and the mainland
are enrolled.

One of the program’s many success stories is Jianwei “Jerry” Fang, who earned his LL.M. at Columbia Law School two years ago and passed the New York state bar exam shortly thereafter. Though he’s only 29, he was a law clerk and then a junior judge in Zhejiang province before coming to the Law School, where he is now completing a J.D.

With a foot in each world, Fang understands the differences between the two countries’ courts. “It’s not a mistake to compare them,” he says. “But you have to really know China” to assess the achievements of China’s judicial reform. With an optimistic view on the future Chinese courts, he is interested in reform efforts that could potentially counter corruption and encourage transparency, which, in turn, will allow for increased confidence in the court system.

According to Liebman, small cases dealing with individuals provide the best opportunity for accurately assessing the development of China’s courts. Western media, he says, tend to focus too much on unusual litigation that reporters view as groundbreaking because the cases suggest China’s courts are copying those in the West. For example, in 2003, a court in Henan province ruled that a provincial regulation was “spontaneously invalid” because it did not comport with the national Seed Law, which sets quality standards for the seed industry. The case made waves because Chinese courts do not have the power of judicial review and thus are not supposed to invalidate laws or regulations. All such questions are, at least in theory, supposed to be resolved by the National People’s Congress. Following the decision, local officials reacted by forcing the judges involved out of office. The resulting media outcry in China led to the judges getting their jobs back, and to the case being featured on the front page of The New York Times.

“There’s a tendency to see these isolated, radical cases—like the seed case—which often make headlines in the West, as crucial cases,” Liebman says. “But in the end, I think they are of minor importance. It’s more important to see if China’s courts can handle routine cases with competence.” 

That’s the problem, he concludes, when some observers in the Western media view China’s judiciary through the filter of their own experience. “It’s the wrong paradigm,” Liebman asserts. They fail to appreciate the unprecedented progress. “And to use that framework,” he says, “is to have and create unrealistic expectations. There’s a limit to what courts can do.”

To focus only on comparisons and Western ideals, Liebman adds, “is to miss a lot of interesting things [the Chinese courts] are doing right now.”

David Hechler is a senior reporter for Corporate Counsel magazine.

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A courthouse in China's Hebei province