The development of China's judicial system since the beginning of “reform and opening up” has been subject to two core parameters: the tension between political control and legality, and the degree to which the judicial system reflects the party-state's overall central–local set-up. Regarding the first parameter, it has been widely argued that the Chinese Communist Party (CCP) regime has tightened its grip over the legal system in recent years and, simultaneously, has increasingly embraced a legalistic approach to its state-building project and governance. The CCP itself has set a clear tone, insisting on political control over legal institutions as a baseline for “comprehensively deepening ruling the country according to law.”Footnote 1 Yet scholars contend that China has experienced, particularly under Xi Jinping's 习近平 reign, not a weakening but rather a further strengthening of the role of law and legal institutions in serving the agenda of the Party leadership. This perception is most prominently expressed by Taisu Zhang and Tom Ginsburg, who demonstrate China's continuous “turn toward law” since the mid-2000s.Footnote 2 According to them, the party-state increasingly endorses a legalistic approach to governance for two main reasons: to solve principal-agent and resource allocation problems by effectively and reliably controlling its local agents through law enforcement, and to uphold the regime's diversifying legitimacy claim in accordance with the population's growing demand for socio-legal accountability.Footnote 3 In a similar vein, Sida Liu revisits Stanley Lubman's seminal metaphor of a “bird in a cage” and reveals how the Chinese legal system has transformed from being a trapped bird to being the “large and complex cage” itself.Footnote 4
Meanwhile, the Xi Jinping era is characterized as a series of vertical-centralization efforts across party-state agencies and policy fields.Footnote 5 This extensive recentralization project is often seen as a rectification of China's formerly fragmented mode of governance that gave rise to overly powerful local actors and clientelist interests, eroding the party-state's overall legitimacy and ruling capacity through corruption and policy circumvention.Footnote 6 Amid these developments, vertical centralization has also been a clear goal of the reforms of China's judicial system since 2013. In particular, the local party-states’ intervention in judicial decisions has long been identified as the source of judicial corruption and local circumvention of central policies.Footnote 7 “Local protectionism” as a by-product of reform-era decentralization has thus become a major target in the CCP's latest reform project.Footnote 8 Reform measures, including the centralization of budgetary and personnel management, the judicial quota system and the judicial accountability system, have been implemented to cut down the channels through which local party-state institutions and actors can exercise influence over the judiciary.
Existing literature suggests that these reforms have had considerable success, increasing local courts’ autonomy from political actors and vertically centralizing the judicial system while at the same time preserving and perhaps even strengthening the CCP's ruling position. Informal channels through which local actors can illegitimately intervene in judicial decisions have been reduced, while formal channels through which party-state institutions can exercise legitimate political control over the judiciary have been strengthened.Footnote 9 The centralization of personnel and budgetary management has supposedly achieved considerable success, although implementation remains less complete and more controversial.Footnote 10 Some Chinese scholars have even started to fear that an overemphasis of the vertical line might lead to just a different form of judicial dependence and potential for corruption in which upper-level courts become overly powerful and can effectively influence lower-level courts’ decisions.Footnote 11 In his comparison of China and Russia, Yueduan Wang argues that China's judicial centralization reforms were at least “partially successful” and “still represent a significant step towards the judiciary's formal independence from local executive branches.”Footnote 12
Following these preliminary assessments, China in the Xi era has arguably not only centralized the judicial system along the vertical line but also presents a paramount case in which the institutional autonomy of the judiciary as a core aspect of modern legality can continuously increase and institutionally manifest both under the condition – and serving the purpose – of one-party authoritarianism.Footnote 13
This article dissents from these existing assessments. First, it analyses the party-state's reform conceptualization, incentives and domestic scholarly interpretations to show that recent judicial reforms serve as a testing ground for just how far judicial autonomy and centralization can reach under China's current political system. Second, it presents in-depth empirical findings suggesting that the vertical centralization of the judicial system has largely failed. The institutional dependence of local courts upon same-level Party committees and governments has been perpetuated or even exacerbated. Furthermore, it finds that the formally independent judicial personnel management system effectively results in less upward career mobility for local judges and prosecutors, further marginalizing the judicial profession within the party-state system.
Finally, this article offers a holistic explanation for the failure of the party-state in implementing these reforms. Resource shortages and regional disparities alone do not explain reform failures.Footnote 14 Rather, as argued here, these failures are rooted in the party-state's structural dependence on the horizontal relations that are indispensable for the maintenance of CCP supremacy but which in turn create systemic blockages for any reform attempt that seeks to break through the judiciary's horizontal embeddedness in the local party-state. During reform implementation, this translates into judicial institutions’ constant reliance on ad-hoc negotiations with party-state institutions to bargain for necessary resources and support. Furthermore, judicial institutions remain an integral part of the local governance structure, often in pursuit of policy goals deviating from stringent law enforcement.
This analysis challenges the notions that the CCP regime under Xi Jinping has achieved substantial success in vertically centralizing the judiciary, and that China presents a paramount case for how judicial autonomy can continuously increase and institutionally manifest under deepening one-party authoritarianism. Despite strong central guidelines and far-reaching reform endeavours on an unprecedented scale, the party-state has not achieved its own goal to make substantial progress in enhancing judicial centralization and autonomy. This contradicts the notion that “the one-party state cannot be the difference.”Footnote 15 At least in this case, it explains how and why the basic set-up of the party-state seems to prevent itself from solving problems in central–local relations and creating a more accountable judiciary.
The article also contributes to up-to-date evaluations of recent dynamics within China's tiao/kuai 条/块 system and its “fragmented authoritarianism.” Similar provincial-level centralization reforms were introduced to the country's commercial and regulatory agencies and financial services in the late 1990s to early 2000s where Andrew Mertha identified the exact same parameters also present in recent judicial reforms: personnel and budgetary allocation (bianzhi 编制) and cadre recruitment and allocation (nomenklatura).Footnote 16 This suggests that the shifting focus between tiao and kuai, between “fragmentation” and “authoritarianism,” as well as between central authority and local protectionism, remains a cornerstone of China's political system. In particular, recent reforms to centralize judicial budgets are set against the background – and reflect the limits – of the country's central–local fiscal revenue and responsibility-sharing system under which the burden of public expenditure is heavily weighted further down the vertical line of administrative levels.Footnote 17
The primary empirical evidence for this study was gathered during fieldwork conducted in 2017, 2018 and 2019 in four municipal localities in two provinces. I conducted individual and group interviews with some 50 judges, prosecutors and Party cadres who were directly involved in or influenced by reform implementation since 2013. These include actors in the provincial, municipal and county/district levels of China's political-legal system. The focus of this study is the court system, although many issues are consistent across both the court and the procuratorate systems.
The fieldwork sites are divided into two tiers: economically developed and mediocre localities.Footnote 18 This division is based on the premise that the availability of local revenues had an impact on both the starting point of court funding prior to the recent reforms as well as on reform implementation when centrally allocated resources fall short of demand. As will be elaborated below, whether local resources are abundant, as in the economically developed tier, or are available but still subject to competition, as in the mediocre tier, plays a determining role in local courts’ persisting dependence on local party-states, particularly when combined with the local party-state's discretion over resource allocation.
The first-tier localities comprise two south-eastern coastal cities (referred to as L1 and L2 hereafter), which have been at the forefront of China's reform and opening policy. They were among the first localities to attract foreign investment and to prosper economically, respectively ranking among the top 10 and top 20 of all municipal cities in China in terms of annual GDP per capita. The two localities in the second tier are also located in the south-east of China (L3 and L4). Their economic performance is less prominent, with annual GDPs per capita ranking somewhere between the top 30 and 50. Local revenues here are less abundant than in the two first-tier localities and are often subject to competition among different agencies.
Judicial Reform as Political Reform
Until 2014, decision-making power over the local judiciary's budgetary and personnel management lay with the local Party committee and government at the same administrative level. For example, the standing committee of the Party committee of a municipal city, comprising the general secretary, the mayor and other members, would meet to discuss and decide the budgetary report and applications for further funding from the court, which would have been submitted to the finance department of the city government beforehand. Personnel decisions were entangled in a more complex structure of human resource management as part of the nomenklatura system; however, generally speaking, appointments and promotions were also largely decided by local Party committees and governments at the same administrative level.
In 2014, the central state launched a reform aimed at centralizing the regulation of personnel and budgets for all local courts and procuratorates up to the provincial level.Footnote 19 Local Party committees and governments at the municipal and district/county levels should no longer have personnel and budgetary control over judicial institutions in their locality. The recruitment of judges and prosecutors now has to pass through a professional committee at the provincial level. Annual budgets for all basic and intermediate courts and procuratorates are now approved and allocated by the provincial-level finance department, which in turn reports to the provincial government. This is undoubtedly a major attempt by the central state to cut off opportunities for “local protectionism,” as it touches upon the channels through which local party-states can influence judicial institutions and decisions.
As the most ambitious and comprehensive judicial reforms of the post-Tiananmen era, these latest rounds of reform involve far-reaching re-adjustments of relationships among various agencies within the country's vast political-legal system.Footnote 20 In fact, the centralization of personnel and budgetary management had already been initiated as early as in 2002, but was not implemented before these reforms.Footnote 21 Even when directly steered by the central party-state, implementing these measures has been exceptionally difficult and has often been left incomplete, precisely because implementation requires the considerable re-adjustment of the basic set-up of China's political-legal institutions, which would result in a weakening of local party-states’ effective control over local judiciaries. This shows that current judicial reforms are part of the party-state's latest attempt to circumvent the so-called “rule of law dilemma for autocrats”: on the one hand, the regime relies on a judiciary sufficiently autonomous and professional to provide regime legitimacy by adjudicating social disputes fairly; on the other hand, such a mechanism should not come at the cost of risking the regime's control over the judiciary.
The Supreme People's Court (SPC) characterizes previous rounds of judicial reforms as merely concerning “working mechanisms,” while those since 2013 are seen as systemic reforms.Footnote 22 The previously implemented reforms were largely of a technical, doctrinal, procedural or issue-based nature and generally restricted to individual institutions or agencies; they did not address the structural set-up that keeps the judiciary dependent upon party-state actors. This structural set-up is considered to be the reason why multiple rounds of reforms could not curtail systemic corruption.Footnote 23 Some of the more progressive reform measures in the previous rounds were perceived as indicators of a tendency towards “judicialization” in an authoritarian setting, such as the once-visible trend of judiciability of constitutional rights, the SPC's judicial interpretation and guiding case mechanism, and the growth in administrative litigation cases against local governments.Footnote 24 Nevertheless, these developments proved to be either periodic or led by an individual agency, rendering them incapable of effectively empowering the judiciary vis-à-vis other political institutions owing to an uneven power hierarchy, institutional bickeringFootnote 25 and lack of coordination.
In contrast, judicial reforms since 2013, both in how the Party centre conceptualized them and in scholarly perceptions, are seen as a serious attempt to move beyond previous reforms as well as their thresholds and their failures. These new reforms not only require substantial changes within the court and the procuratorial systems but also in the relationships between those systems and Party committees and governments at local levels. As such, current judicial reforms are considered as part of the country's ongoing political reform and the most likely, if not the only, part of it that could expect to see real success.Footnote 26 As one of the interviewees put it, “judicial reform is the closest to political reform that China might see in the foreseeable future.”Footnote 27 At the very least, domestic scholars speak of “political-legal reform,” instead of “judicial reform,” to capture the fundamental nature of the current reform period as being led directly by the Party centre to facilitate cross-institutional coordination.Footnote 28 This indicates that recent reforms, particularly the centralization of personnel and budgetary management, serve as a testing ground for just how far judicial autonomy and centralization can reach under China's current political system, as their success and failures reveal potential limits.
Perpetuated and Exacerbated Dependence
Deviating from existing assessments, this study finds that the local judiciary's structural dependence upon the local party-state has not been curtailed. In the following, I present an overall picture of my fieldwork sites to showcase that while the level of economic development determines the degree to which local revenues are available, uneven resource distribution and regional disparities alone do not sufficiently explain the failure of centralizing reforms in the country's judicial system.
Economically developed localities
In the two economically developed localities of my fieldwork sites, L1 and L2, local courts appear to be as financially dependent upon same-level party-states as they were previously, despite the formal centralization of their budgets at the provincial level. For one, only the official part of the local judiciary's annual expenditure, including basic salaries for personnel and routine operational costs, has been centralized at provincial-level management.Footnote 29 Prior to the reform, though, remuneration for judicial personnel was regulated under the same system used for government officials, which meant that the total actual income of a judge comprised not only a basic salary but also several bonuses calculated according to the city's annual local tax income. This income was, in turn, generated according to local economic performance and then staggered according to the judge's ranking, as was the case for employees in all government departments. This was and still is common practice in local states wanting to provide tangible incentives for local Party cadres and government officials to actively engage in promoting economic growth. In fact, the bonuses can make up a considerable proportion of income – around one-third to one-half of the total income for a state employee in the economically better-off sites examined in this article.Footnote 30
However, this is often a “grey zone” practice, which is neither officially endorsed nor banned by the central state. In any case, provincial-level budgets after centralization do not include or cannot afford to pay for bonuses. The result of multiple rounds of negotiation is that local governments in both L1 and L2 continue to pay bonuses to judicial personnel to avoid mass discontent – cutting off bonuses would put judges and prosecutors at an enormous disadvantage compared to government officials, even though the reform policy dictates that their incomes should be higher than those of government officials at comparable ranks.Footnote 31 A cadre responsible for coordinating judicial reforms in the municipal political and legal affairs committee in L1 mentioned that the current bonus system is a temporary, non-binding arrangement, subject to changes depending on the financial resources available and the willingness of local authorities to further sustain it; this is different to the previous model where judicial personnel were explicitly entitled to these annual bonuses.Footnote 32
Apart from bonuses, local courts also heavily depend upon same-level funding for the hiring of judicial clerks. Since the implementation of the quota reform, the number of judges with actual adjudicating power has been effectively cut by more than 40 per cent.Footnote 33 Although judicial personnel spending has been officially centralized at provincial level, provincial budgets do not provide sufficient funding for the hiring of judicial clerks. Local courts thus turn to same-level governments for the hiring of clerks on short-term contracts, usually at the same pay scale as contracted employees in other government agencies. In all of my fieldwork sites, judicial clerks were generally in short supply, on unstable employment terms and burdened with excessive workloads. L1, with its abundant local revenues, suffered fewer shortages than the other sites. What made the difference, though, according to a judge at the municipal-level intermediate court, was how exceptionally “supportive” the municipal government and Party committee were in matters of judicial reform implementation, to the extent that fellow judges from other localities were surprised at it. In L1, 80–90 per cent of judicial clerks are hired on short-term contracts by the municipal and district governments. Contracts are renewed annually, depending on budgets and annual turnover.Footnote 34
Economically mediocre localities
In the two economically mediocre localities, L3 and L4, the situation is even more complex. Here, local economic revenue is considerably higher than it is in hinterland regions, but budgetary resources are still subject to competitive distribution. Initially, local governments were keen to use the reform as an excuse to stop paying annual bonuses to judicial personnel. Unsurprisingly, judges and prosecutors were outraged by the implementation of such a policy, which clearly ran contrary to the proclaimed reform goals, as their actual income ended up being even less than that of a government official of the same rank.
A district-level basic court in L3 reported that judges later did receive their annual bonus from the district government, as in previous years. This was owing to the “strong negotiating ability” of the court president and his close relationship with district leaders on the Party committee. Here, the secretary of the political and legal affairs committee took it as his responsibility to negotiate with the county Party committee and government on behalf of the court and procuratorate for annual bonuses. This negotiation was in the end somewhat successful, but the process was arduous and did not result in any guaranteed future commitment.Footnote 35
At a county-level procuratorate in L3, the chief procurator also emphasized the uncertainty of local bonus payments. Apart from the annual bonuses that are sourced from the annual fiscal budget, local governments sometimes distribute additional bonus payments to staff from extra-budgetary revenues. This had occurred in the aforementioned county in the previous fiscal year: the county government announced an extra bonus payment for public servants, which did not include judicial personnel. The procuratorate had to file a report and the county mayor finally agreed to extend the payments to include the judicial staff; however, there was no guarantee of future bonuses:
What we used to take for granted has now become something that we have to beg for. This runs counter to the reform goal of “de-localization,” as our connection with the same-level party-state has been strengthened, otherwise we do not get paid what we deserve. For this year it has been settled, but we have no knowledge about how things will pan out next year … now the local party-state has us by the throat. If we do not fight for it, we do not get our bonus.Footnote 36
Often, expenditures will emerge that require extra-budgetary funding allocation, especially when central authorities demand that local courts and procuratorates implement new projects, such as digitalization projects, but then only provide partial funding with the expectation that local institutions will provide the rest of the funding themselves. When such a case happened to a district procuratorate in L3, the Party secretary for political and legal affairs mobilized the district mayor and the financial department and went through the “seven steps of procedural approval” through various Party and state agencies to finally secure the money. In the past, local governments would take potential expenditures of the local judiciary into account when calculating their annual budget. This would then be approved in advance, thus eliminating the need for complex negotiations to secure funding.Footnote 37 The district procuratorate also had to ask for the payment of annual bonuses every year; it was never certain whether or not they would continue to be paid the following year:
I have witnessed our chief procurator having to file a report for every piece of funding, and at the end of the year, coordinate with the district Party committee and government about every item of expenditure. There are also many other issues like construction and land usage that we have to ask the district for.Footnote 38
In a county in L4, the basic court reported experiences consistent with those in L3:
When we need to implement a larger project, it is not as easy to ask for money from the same-level funding as it used to be. We hear the same stories from other courts. The same-level party-state thinks that “financially you are no longer our business. You cannot keep on asking for money with all sorts of excuses.” The situation differs a lot from what it used to be.Footnote 39
The basic procuratorate in the same county in L4 provided another example of how the local judiciary remains financially dependent upon the same-level party-state. The procuratorate began construction of a new office building a few years before centralization reform started. By the time budgetary management was moved up to the provincial level, the construction had already been largely finalized, with only the last payment pending. All the previous payments had been paid from same-level funding, and when the procuratorate turned to the county government for the last payment, the latter argued that it was no longer responsible for judicial expenditures. The provincial authorities, on the other hand, stated that real estate management should remain the responsibility of local party-states. Similar dilemmas also occur when old equipment or property needs to be formally disposed of – nobody will take responsibility for the disposal of such items and, without a formal disposal procedure, new equipment cannot be procured or used. In the end, the procuratorate had to enter into arduous negotiations with the same-level party-state for a solution.Footnote 40
Essentially, in both affluent and mediocre regions, the institutional dependence of local courts upon same-level Party committees and governments is far from reduced. In fact, depending on the specific scenario, this dependence has been perpetuated or even increased. Where resources are abundant, temporary solutions can be worked out relatively easily, avoiding spreading discontent among judicial personnel but also leading to prolonged financial dependence on Party and government actors at the same administrative level. Where resources are moderately available, the payment of bonuses, which judicial personnel used to consider was their entitlement, has now become an issue of unequal negotiation. Local courts, as well as procuratorates, also still largely rely on same-level government budgets for a wide range of other issues, including the hiring of fixed-term clerks and project funding. Provincial-level budgets also often do not account for (the renewal of) office space or equipment, leaving local courts, regardless of the economic level of the respective locality, with no choice but to turn to the same-level party-state for requests such as land usage. In any case, local party-states now have greater flexibility and discretion in the allocation of financial and personnel resources, leaving the local judiciary having to constantly enter into ad-hoc negotiations with party-state agencies and in a more vulnerable position than before.
Depoliticized or Demoralized? Local Elite (In)Coherence
Following the implementation of the personnel quota system, the average workload for local judges has increased dramatically. Across my fieldwork sites, frontline judges were expected to close over 300 cases on average a year. The extra workload burden was felt most in moderately prosperous localities. A county court in L4 reported that from July 2017 to April 2018, the average number of cases each quota judge had tried amounted to 607, more than twice the provincial average, which was already exceedingly high. The same court also reported that four judicial clerks had resigned during the same period owing to excessive stress at work.Footnote 41 In 2017, eight out of 42 quota judges in one district-level basic court in L3 resigned within a year; there were a further five pending resignation applications that the court leadership was trying to juggle to avoid further escalation of chronic understaffing.Footnote 42 Both the courts in L3 and L4, as well as a judge from the intermediate court of L1, described Tuesday and Thursday evenings and Saturday as “default overtime.”Footnote 43
The wave of young to middle-aged judges and prosecutors quitting their jobs attracted considerable media attention at the time. There was a general concern that China's judiciary was losing many of its most talented and capable young personnel, who felt that they were being underpaid and treated unfairly considering their qualifications and levels of sacrifice. In fact, the situation was considered to be so dire that the SPC and the Supreme People's Procuratorate issued a joint decision in 2021 forbidding former court and procuratorate employees to practise as attorneys within two years of their resignation.Footnote 44 Allegedly, this ban was already in effect within the court system a few years before the joint decision was issued, following a wave of resignations by judges at the SPC itself. For judges already unhappy with the employment conditions of their profession, such a ban was outrageous:
After two years, the resources you gathered from your experience at the court will be gone. It's pointless. And how are you supposed to make a living during those two years? (The ban) makes it a dead end for you. This is essentially the state bullying us – they won't let you enter the quota, won't let you resign, and now won't even let you make a living.Footnote 45
Previous studies have found that the level of development of the local legal services market and individuals’ gender both play a significant role in Chinese judges’ decisions to leave courts and go into practice.Footnote 46 My fieldwork suggests that in the midst of budgetary and personnel reforms, additional factors might be at play. While I did not obtain gender-specific information, among my fieldwork sites, L1 and L2, which had the most developed legal services markets, did not experience the greatest surge of personnel leaving the profession.Footnote 47 Rather, it was L3 and L4, with moderately developed legal services markets, which reported worrying numbers of judicial resignations as well as an overall alarming level of career dissatisfaction.
Yet the impact of the new judicial personnel management system reaches further still. Prior to the recent reforms, judges and prosecutors were part of the larger system for the promotion and evaluation of government officials, which also meant that there was a relatively high degree of career mobility between the judiciary and other political agencies. With the implementation of the personnel quota system and the independent management of judicial personnel, the appointment, evaluation and promotion of local judges and prosecutors are now officially separated from those of local government officials. Ranks of individual judges and prosecutors within their professional hierarchy can now no longer be “converted” into an equivalent for government officials.
One would assume that this is a feature which institutionally enhances judicial autonomy, at least at the local level on the horizontal axis, and therefore would be welcomed by judicial personnel. The critical issue, though, is that the inferior status and weak power of judicial institutions vis-à-vis the core party-state remains a systematic reality. For judges and prosecutors, being in an “independent” professional management system separate from the management of government officials also means that the prospect of upward career mobility – which is what “really” counts in China's political reality – is drastically limited, since it has become much more difficult and rare for them to be transferred or promoted from a judicial institution to a political one closer to the core of the party-state. Their promotion within the judicial professional track is not transferrable to the public servant track and thus does not entitle them to corresponding benefits such as retirement and medical packages, let alone political status. Being detached from the regular civil servant management system – and thus from the core of the party-state's cadre system – leaves many local judges deeply insecure. In certain constellations, this can even mean a career dead-end for senior judges at basic courts who have been in leading administrative functions for many years.
Several middle-aged officers who head up the political division (zhengzhichu 政治处) at local courts and procuratorates expressed particular resentment about this issue. Even though they were initially trained to be judges and prosecutors and have many years of experience, they are now practically banned from entering the quota because they left the judicial frontline too long ago. Yet there is no future for them as a leading cadre (lingdao 领导) either, as the leaders of a court or a procuratorate now have to be selected from among personnel within the quota. Being transferred to Party or governments departments outside the judiciary is an even worse option now that the judiciary is separate from the regular ranking system for civil servants.
The formal detachment of the judicial personnel system from the governmental one thus means in practice that judges and prosecutors are excluded from the core of local political power and therefore further marginalized within the party-state system. In the long run, this might result in a persistent loss of elite loyalty at the local level, especially considering that the local judiciary is increasingly tasked with the challenge of containing social conflicts under the party-state's prioritization of stability maintenance. This further erodes the judiciary's function of maintaining elite cohesion within the authoritarian state.Footnote 48
Horizontal Centralization Blocking Vertical Recentralization
The empirical findings of this study suggest that while the amount of available local revenue plays a role, it is the local party-state's allocation of resources that ultimately shapes the implementation process and results. The mechanisms behind implementation failure go beyond uneven resource distribution and are instead rooted in structural factors that underlie “the inherent difficulty of institutionalizing judicial autonomy, however limited, in a large and diverse party-state.”Footnote 49 These structural factors therefore need to be clearly identified. Upon further review of the empirical evidence, this article contends that two factors have been particularly pronounced in contributing to implementation failure: provincial-level high courts lacking the authority to coordinate with provincial-level party-state institutions for necessary resources and support, and the local judiciary's persistent embeddedness in local governance structures.
Local party-states end up compensating for insufficient resources at the local level which are a result of the provincial-level court's lack of authority when negotiating with provincial-level party-state institutions. Because vertical centralization is only supposed to reach the provincial level, rather than the centre, each provincial high court is responsible for turning central-level policies into implementable measures, translating reform goals into specific instructions, and mobilizing and allocating the resources needed for implementation at lower-level courts. Interviews with seven high court officials from a south-eastern province reveal a “mediator's dilemma.” On the one hand, provincial high court officials have to translate and navigate the “hard goals” set by the centre, such as allocating 39 per cent of the average personnel quota to lower-level courts, despite drastically varying local circumstances, and monitoring the budgetary management transfer. On the other hand, they simply do not possess the authority or competence to effectively negotiate with other provincial-level institutions – such as the finance department, organizational department and Party committees – which control the necessary resources for actual policy implementation. In their own words, “the policy is there, the pressure is high.”Footnote 50 The provincial high courts, however, do not envisage being endowed with sufficient power vis-à-vis other agencies as the potential solution; instead, they suggest that even stricter and more detailed central guidelines are needed: “Certain ‘designs’ could have been more detailed at the top-level, so that it's more unified and there is less space for lower levels to intervene as they like.”Footnote 51
Essentially, the judiciary looks to central authority to sort out intra-institutional negotiation prior to policy implementation, precisely because they know that structurally empowering the judiciary to the same degree as same-level party-state institutions is not a tangible option within the current system. As soon as implementation requires cooperation from other agencies,
We have to practically beg them every day; some [agencies] might understand and help us push through implementation, some just won't understand and [instead imply] “we are exhausted too, why should you judges be paid more than us?”Footnote 52
This highlights that at the provincial level, vertical centralization has been blocked by persistent horizontal resistance, as provincial high courts rely on the cooperation of party-state branches to push through policy implementation and are often unable to negotiate for it. As a result, local courts are faced with unresponsiveness, confusing instructions or simply unrealistic objectives when, as prescribed by reform documents, dealing with provincial-level institutions concerning resource allocation. Thus, they often feel compelled to turn to their same-level party-state institutions for personnel and budgetary support.
Moreover, the local judiciary's intertwinement with the local party-state goes beyond regular budgetary and personnel management. It is part of the broader local governance structure that collectively coordinates to serve policy goals in line with local party-state interests. The definition and variation of these goals still follow central guidelines,Footnote 53 yet local party-states’ self-incentivizing rationale of policy experimentation and implementation still constitutes a core feature of the country's developmental path.Footnote 54 To the extent that local courts depend on local party-states for operational resources, local party-states also rely on the local judiciary to help deliver policy goals and resolve conflicts in an environment of growing societal demand on the one hand and increasing top-down pressure on the other.Footnote 55 As long as such governance structures are intact, given the lack of central (provincial) resources, the judiciary will continue to turn to the local party-state and therefore remain dependent upon it. As a judge from a county court in L4 described it:
There has not been much change in terms of delocalization so far. We are still asked [by the county Party committee and government] to attend all the meetings and submit all sorts of reports. We are still treated as an institution directly subordinated to the county (xianzhi jiguan 县直机关).Footnote 56
The following case, from L1, also shows local courts’ routine integration with local governance. The municipal administration of customs signed a lease contract with a private company in the mid-2000s to rent a building to the company on a term of 20 years. The company has been operating a hotel in the building ever since. Just over halfway through the lease, the company defaulted on its rental payments, following which the administration of customs sued the company demanding all due payments as well as the termination of the lease. The company threatened to mobilize its hotel employees to file petitions to upper-level authorities and even stage protests. Nervous about the impact on its performance in social stability maintenance, the political and legal affairs committee convoked several meetings with the district court and the customs administration to negotiate a solution. The committee and the court managed to convince the customs administration to reach a deal with the company, allow it to remain for the original lease term and to even reduce the rent.
After the company again defaulted on its payments, the customs administration sued a second time, won the case and filed to evict the company. At the time of my second round of fieldwork in March 2018 more than half a year later, the hotel was still operating and there were no concrete plans to evict it from the building.Footnote 57 The reluctance of the political and legal affairs committee to mobilize the local police to evict the company from the building sets this case apart from other cases where local polices, procuratorates and even courts have been involved in forceful demolition projects, often unlawfully. However, this and other cases reveal the same core features of the Chinese judiciary within the (local) party-state: that judicial institutions are routinely integrated into the local governance structure in pursuit of policy goals at the discretion of local party-states. Coherent and stringent law enforcement has certainly been an important policy goal, but it often comes into conflict with other, perhaps more dominant, policy goals such as social stability. The president of a basic court in L3, on the other hand, allegedly volunteered to take over the work of persuading residents to leave their homes so that an entire street designated for new housing development by the government could be demolished. His court personnel worked overtime in the evenings to forge resettlement agreements with residents. As compensation, the court personnel received a bonus payment worth two months’ salary at the end of the year.Footnote 58
Ultimately, both factors – namely the lack of provincial-level high courts’ negotiation capacity and the judiciary's embeddedness in the local governance structure – boil down to the party-state's own reliance on its horizontal line of command that essentially ensures the CCP's supremacy over all state institutions, which is in turn what constitutes the core of China's one-party rule. Although judicial institutions, unlike the newly established supervisory commissions of the anti-corruption regime, are not party organs per se, they are nevertheless structurally embedded in a horizontal constellation in which they are hierarchically subordinate to same-level party-state institutions. The local party-state's concentration of horizontal power was the central target of the reform and yet is what the implementation of this reform relies on for resource distribution and coordination. In a sense, the vertical centralization of the judiciary has failed owing to similar structural dilemmas which have stalled the vertical centralization of the CCP's disciplinary apparatus: “party leadership has to be exercised both vertically and horizontally and at both the central and local levels to maintain coherence.”Footnote 59
Conclusion: The Limits of Judicial Reform
This study shows that, as of the current moment, the effects of China's recent structural reforms on its judicial system have been considerably less impactful than official accounts claim or existing assessments observe them to be. Centralization along the vertical line has been limited at best. Structural dependence of the local judiciary upon same-level party-state institutions and actors along the horizontal line is perpetuated or has even been exacerbated in some cases. Particularly in economically mediocre localities, the local judiciary finds itself constantly having to enter into ad-hoc negotiations with the local party-state for budgetary and personnel support, leaving it in an arguably more vulnerable position than before. The formal detachment of judicial personnel management from the regular management system for government officials and cadres has not necessarily upgraded the professional status or autonomy of local judges and prosecutors; rather it has limited their upward career mobility, further marginalizing the judicial profession, and has arguably damaged local elite loyalty and eroded elite coherence.
In this sense, China's most comprehensive and far-reaching judicial reforms towards a more centralized and autonomous judiciary have seen little success. Furthermore, the mechanisms causing this implementation failure reach beyond uneven resource distribution and regional disparity. They are rooted in the very same hierarchy that these reforms sought to break and upon which the system relies to maintain Party authority along both the vertical (tiao) and horizontal (kuai) axes. The horizontal power hierarchy in which judicial institutions are subordinated to political agencies of the party-state is part of the structural edifice of the CCP's one-party rule, which needs to be entrenched at both the central and local levels to remain intact. Vertical centralization is thus blocked by horizontal centralization; for vertical centralization and judicial autonomy to substantially increase, the system would have to decrease the Party's control over same-level state institutions in general. Yet a fully centralized judiciary with its own institutional autonomy would potentially risk allowing challenges to the Party's rule at the central level, which also explains why reform endeavours in this regard had been set aside for years and have only recently been attempted via provincial-level centralization.
These findings challenge two prevailing notions on China's recent political-legal development. First, that the party-state has successfully engineered a vertical centralization of its judiciary and, second, that the Chinese case demonstrates how judicial autonomy as a core feature of modern legality can continuously increase and institutionally manifest both under the conditions and serving the purpose of one-party authoritarianism. Vertical centralization in the Xi Jinping era might have been successful in policy fields where central policies worked to achieve vertical centralization through the strengthening of horizontal centralization, such as the working mechanism of leading small groups and recent financing controls over the country's property developers. However, in policy fields such as judicial reforms, where vertical centralization within the judiciary must come at the cost of horizontal power concentration of the party-state, reforms tend to fail. This shows how the party-state's structural constraints are getting in the way of its own reform objectives and constituting a hard limit for how far reforms towards judicial centralization and autonomy can reach under the country's current set-up of single-party rule and central–local relations.
Acknowledgements
The author wishes to thank the three anonymous reviewers and the following persons, in alphabetical order, for their valuable feedback on earlier drafts of this article: Irit Ballas, Christian Göbel, Ayako Hatano, Xin He, Abbey Heffer, Syaru Shirley Lin, Andrew Nathan, Minxin Pei, Alison Renteln and Samuli Seppänen. Special thanks go to my advisors, Gunter Schubert and Björn Ahl, for their consistent support and inspiration far beyond the scope of this article, as well as to all my interviewees and everyone who has helped me during my fieldwork, without whom this article would not have come to exist.
Competing interests
None.
MENG Ye is a PhD candidate at the University of Tübingen and a JD candidate at Columbia Law School. She is broadly interested in the interplay between legal institutions and political rule, particularly in authoritarian contexts.
Open access
