Review of Human Rights in Asia: A Comparative Legal Study of Twelve Asian Jurisdictions, France and the USA

This article reviews Human Rights in Asia: A Comparative Legal Study of Twelve Asian Jurisdictions, France and the USA by Randall Peerenboom, Carole J. Petersen, and Albert H.Y. Chen

Randall Peerenboom (éd.), Asian Discourses of Rule of Law, Theories and implementation of rule of law in twelve Asian countries, France and the US

Voici un ouvrage tout aussi passionnant qu’ambitieux et qui a l’immense mérite de mettre en lumière les spécificités du monde chinois en usant d’un comparatisme érudit. On connaît de longue date les travaux de Randall Peerenboom, spécialiste et praticien reconnu du droit chinois, qui enseigne aujourd’hui à la faculté de droit de l’Université de Californie. Les lecteurs assidus de Perspectives chinoises se souviendront sans doute que nous ne partageons pas tout à fait les analyses de l’auteur ..

What Have We Learned About Law and Development? Describing, Predicting, and Assessing Legal Reforms in China

This Article applies existing conceptual tools for describing, predicting, and assessing legal reforms to the efforts to establish rule of law in China, in the process shedding light on the various pathways and methodologies of reform so as to facilitate assessment of competing reform strategies. While drawing on China for concrete examples, the discussion involves issues that are generally applicable to comparative law and the new law and development movement, and thus it addresse

Building Judicial Integrity in China

Since the late 1970s, the Chinese judiciary has undergone a continuous reform process of professionalization and institutionalization. Despite the political constraints, there are sufficient opportunities and incentives to continue China's judicial reform so as to enhance judicial capacity and rebuild trust and credibility. It is undeniable that the Chinese judiciary has been improving itself noticeably through enhancing professionalism, institutionalization and autonomy. Judicial reform is possible because China’s authoritarian system demands for a degree of the rule of law. First, rule of law legitimizes political powers and generations of party and, without exceptions, state leaders in the reform China have invariably embraced the concept of rule of law at certain stage of terms. Second, the central government may rely on the rule of law and an effective court in particular to rein in local governments. Third, the rule of law may have proved to be the most effective mechanism for dispute resolution in the long run. The primary function of the court from this perspective is to offer efficient dispute resolution for the vast majority of individual cases. To be effective for an institution that is politically weak, the judiciary must develop a sufficient degree of credibility that it is autonomous from political and social influences, neutral to the parties before it, and fair in applying rules. China is likely to develop a judiciary that is politically submissive, but professionally capable in offering effective and fair legal solution to disputes.preprin

Themis v. Xiezhi: Assessing Judicial Independence in the People's Republic of China under International Human Rights Law

The first of three parts in this study elaborates on international human rights law and drawing on the most essential international instruments and jurisprudence, the criteria constituting judicial independence are distilled as a framework for assessment. The point of departure is that judicial independence is a necessary guarantee for the enjoyment of human rights rather than a privilege of judges. The criteria necessary for this independence are presented in a chart format, which groups the criteria into three strands: independence, impartiality, and public confidence. Independence is concerned with insulating the judiciary from pressures, while impartiality deals in particular with judges’ unbiased consideration of cases. Public confidence includes aspects such as transparency and representativity that are designed to strengthen public trust in the judiciary and its independence. These charts and strands are the basis for the subsequent assessment of judicial independence in China. The second part commences with a discussion on comparative law. Firstly, a method of analogy as a tool for a profound understanding of foreign legal institutions and functions is elaborated upon. Secondly, based on modern research findings, previous misunderstandings of the legal history in China are discarded. In particular the existence and development as well as the application of law and legal procedures are explored. Fundamentally, and contrary to common perceptions, even judicial independence was part of the Chinese history although, of course, not as defined in international human rights law. The third part considers the judiciary in China and assesses its independence. First the modern history is described with its many foreign influences and state of flux. Second, the contemporary structure and legal framework pertaining to the independence of the judiciary are laid out. Challenges to independence are analyzed with particular reference to the reform process under way. Based on the three strands developed in the first part, formal guarantees for judicial independence in various Chinese legal texts show the lack of guarantees for the independence and public confidence strands in particular, but also to a lesser extent the impartiality strand. However, the guarantees are developing in line with international requirements; this is also the case for the actual practice

Randall Peerenboom, China's Long March Toward the? Rule of Law, Cambridge University Press, 2002, 673 pp.

If one is to believe the proponents of relativism, any moral philosophy with a universalist claim would be both unrealistic and intolerant. They alone would be able to recognise the irreducible diversity of social moralities and to preserve excellence from Western imperium. This is somehow the impression that we are left with by parts, if not by the whole, of China's Long March Toward the? Rule of Law. In this ambitious 700 page work, Randall Peerenboom, a recognised expert in and practitione..