Judiciaries and Politics in East Asia

by

Chin-Shou Wang

• LAST REVIEWED: 27 June 2017
• LAST MODIFIED: 27 June 2017
• DOI: 10.1093/obo/9780199756223-0220

Introduction

In the past several decades, East Asian judiciaries have changed greatly and played significantly expanded roles in economic development, human protection, and politics. During this period, South Korea’s and Taiwan’s judiciaries underwent radical reforms spurred on mainly because of democratization. Japan’s judicial reforms occurred at the end of the 20th century to meet the challenges and the demands of desired economic, social, and political progress. China’s legal reforms initiated by Deng Xiaoping in the late 1970s have served the basic task of building a legal framework for economic reform. This bibliographic article discusses recent research covering the relationships between judiciaries and politics (and related issues) mainly in China, Japan, South Korea, and Taiwan. The courts having the most intense effect on politics have been in South Korea, followed by those in Taiwan and then those in Japan. Overall, the Chinese judiciary is still under the tight control of the Chinese party-state. China’s judiciary has a long way to go before it can realize its potential as an agent of change in politics. Researchers have started to catch on to the importance of judicial change and to judiciaries’ potentially huge effects on East Asian politics. The academic examination of judiciaries and politics in East Asia, nevertheless, remains an emerging research area in which a fair number of excellent studies are available. Most of the published studies have been conducted by legal scholars, of whom only a few have acquired substantive training in the social sciences. It is clear that this research area would benefit from more social science input and from more comparative and theoretical foundations.

Overview

The judiciaries in East Asia have changed radically in the past several decades, usually as an accompaniment to economic development and political transformation. Despite having many characteristics that reflect Western civil law traditions, East Asia’s judiciaries have a host of notable unique features. Yeh and Chang 2015 is a great starting point for understanding contemporary Asia’s basic judicial institutions and laws. Chang, et al. 2014 offers cases and primary texts relevant to the constitutions of Asian countries. And research has addressed some of the many new developments in East Asia’s legal institutions. While Ginsburg and Chen 2008 concentrates on established administrative courts in the region, Harding and Nicholson 2011 examines newer courts there. Dressel 2012 investigates the judicialization of politics, and Yap and Lau 2011 teamed up on their study targeting public-interest litigation. Whether reformist or institutional, changes in China’s legal system have received a great deal of attention from works such as Lubman 1996 and Clarke 2008, both of which offer comparative insights into the nature and the reach of these changes. Liu and Wang 2015 is a useful review of law and society studies in China. Of particular note is Clarke 2003, a cautionary study that warns researchers of the limits and pitfalls of relying on standard data about the Chinese judiciary: legal scholars must be cognizant of the data’s flaws.

• Chang, Wen-Chen, Li-Ann Thio, Kevin Y. L. Tan, and Jiunn-Rong Yeh, eds. Constitutionalism in Asia: Cases and Materials. Oxford and Portland, OR: Hart, 2014.

  A casebook for the study of constitutionalism and constitutional politics in Asia. The cases discussed in this book are from China, Japan, South Korea, Taiwan, and several other Asian countries. It is a very useful guide for the study of constitutional law and politics in Asia. The book is appropriate for graduate and law school courses.

• Clarke, Donald C. “Empirical Research into the Chinese Judicial System.” In Beyond Common Knowledge: Empirical Research into the Rule of Law. Edited by Erik G. Jensen and Thomas C. Heller, 164–192. Stanford, CA: Stanford University Press, 2003.

  A critical and reflective article on the usefulness, limits, and pitfalls attending data on China’s judiciary.

• Clarke, Donald C., ed. China’s Legal System: New Developments, New Challenges. Cambridge, UK: Cambridge University Press, 2008.

  First published in The China Quarterly as a special issue in 2007 and then published as a book, this work focuses on the legal developments and judicial reforms in China since the 1990s. It includes an introduction and seven articles, each accompanied by a commentary.

• Dressel, Björn, ed. The Judicialization of Politics in Asia. London and New York: Routledge, 2012.

  Probably the first book in English on the judicialization of politics in Asia. The cases discussed in this book include China, Japan, and South Korea. The editor’s introduction offers a comparative and theoretical perspective on the subject.

• Ginsburg, Tom, and Albert H. Y. Chen, eds. Administrative Law and Governance in Comparative Perspectives. London and New York: Routledge, 2008.

  The book examines the judicialization of governance in Asia, identifying the causes and consequences of administrative law’s shift from a limited actor to a more active one.

• Harding, Andrew, and Penelope Nicholson, eds. New Courts in Asia. London and New York: Routledge, 2011.

  The book examines the new courts established over the past thirty years in Asia. The chapters include Korea’s Constitutional Court, Japan’s new trial system and Specialized Intellectual Property Courts, and China’s Specialized Intellectual Property Courts and the Administrative Chambers of the People’s Courts.

• Liu, Sida, and Zhizgou Wang. “The Fall and Rise of Law and Social Science in China.” Annual Review of Law and Social Science 11 (2015): 373–394.

  DOI: 10.1146/annurev-lawsocsci-120814-121329

  A critical review of the studies of law and social science in China. Four emerging sub-areas of socio-legal studies are reviewed: law in rural society, the legal profession, courts and disputation resolution, and criminal justice. However, the work does not discuss the issue of judicial politics. This absence just goes to show that the Chinese judiciary currently plays an unimportant role in politics.

• Lubman, Stanley B., ed. China’s Legal Reforms. Oxford: Oxford University Press, 1996.

  First published as a special issue in China Quarterly in 1995 and published as a book the following year, the book version comprises an introduction and eight chapters. It is a good resource for understanding the history and processes of Chinese legal reform.

• Yap, Po Jen, and Holning Lau, eds. Public Interest Litigation in Asia. London and New York: Routledge, 2011.

  This edited book examines the origin, nature, development, and achievement of public-interest litigation in seven Asian cases, including China, South Korea, and Taiwan.

• Yeh, Jiunn-Rong, and Wen-Chen Chang, eds. Asian Courts in Context. Cambridge, UK: Cambridge University Press, 2015.

  This book features fourteen Asian case studies covering China, Japan, South Korea, and Taiwan. Every chapter presents a case and describes the corresponding court organization, judicial independence, judicial review, and judicial responses to economic, social, and political challenges. It is a good introduction to judiciaries of Asian countries and would be a great textbook for courses on Asian judiciary systems, law and society, and judicial politics, particularly at the undergraduate level.