Qin (Sky) Ma (Max Planck Institute for the Study of Crime, Security and Law) has posted Non-Independent Impartiality: Unveiling the Subtle Resistance to Judicial Independence in China (forthcoming in Columbia Journal of Asian Law 2026) on SSRN. Here is the abstract:
This article uses legal cultural and historical analysis to reveal the notion of “non-independent impartiality” in Chinese legal culture. This idea suggests that judicial impartiality and fairness can be realized without necessarily relying on judicial independence, thus challenging the commonly assumed connection between the two. The import of judicial independence in China intertwines and interacts with this legal culture, generating both fusion and tension. This article explores how this legal culture poses challenges to achieving judicial independence by interacting with its theoretical underpinnings, institutional structures, and practice. It underscores the cultural constraints in China’s efforts to promote judicial independence, offering new insights into the complex interplay between judicial independence and impartiality.
China’s intricate approach to judicial independence exemplifies the phenomenon of contextualization or “legal translation” during the process of legal transplantation. China’s path suggests judicial impartiality doesn’t hinge on independence. Instead, collective review and hierarchical oversight may foster judicial fairness, offering fresh insights for comparative research on this topic. Furthermore, the path dependence reflected in the stability and continuity of Chinese legal culture and judicial institutions serves as a fitting example of historical institutionalism.