This chapter outlines the challenges that current political polarization presents for constitutional law and judicial authority. Over the past fifty years, US politics have polarized, producing close political competition between two ideologically defined national parties that view each other with fear and distrust. This polarization has encouraged political actors in Congress and the federal executive branch to take legally aggressive positions and prioritize substantive policy achievements over adherence to good-governance norms or even constitutional restraints. At the same time, polarization has generated rival constitutional visions, and aligned slates of judges, that aim to advance partisan goals through constitutional interpretation. This environment poses risks for both judicial authority and constitutional law, because the public may lose trust in courts as neutral arbiters of constitutional disputes if it perceives them as wholly political institutions.

At the outset of the post-Mao reform era in 1978, there was little semblance of an organized legal profession in China – certainly not in a formal sense. The globally unprecedented growth of the legal profession in the subsequent decades, however, led to significant changes in China’s courts and its broader legal system, and this chapter begins telling the story of how these changes occurred. What began as a state-led efforts to construct a professional class of lawyers largely began in the early 1980s transformed into a privatized expansion effort closely related to inbound foreign investment into China. In the early twenty-first century, the growth of the legal profession pressuring courts to recalibrate various institutional practices related to judicial autonomy, particularly in urban areas, in order to stem the attrition of judges leaving courts for law firm employment opportunities.

This chapter investigates the development of judicial reforms and discusses recent changes of court management and the roles of judges within courts. It further sets out the contributions that civil procedure reforms made to the institutional changes effected in the judiciary during the early court reforms of the 1990s. The aim of the reforms to the civil procedure system was to adjust the role of the courts vis-à-vis litigants to protect the latter’s procedural rights and check judicial power. The readjustment of the relation between judges and the parties to a civil trial, and the underlying academic discourse supporting it, promoted judicial transparency and legal professionalism. It also spurred discussion of broader reforms targeting judicial independence. For example, changes were made to the bureaucratic management structure of the courts. Efforts have also been made to protect the independence of the courts by shielding them from local government interference. Despite these well-intended measures, however, the transformation of bureaucratic court management into mechanisms of trial accountability has encountered obstacles in practice. Courts operate according to both a legal and political logic, and institutional reforms can achieve success only if they take both into account.

The chapter begins by outlining three stages of China’s judicial reform journey. The first stage, marked by the Western-oriented reforms launched in the late 1970s, featured judicial activism within uncertain boundaries. The second stage is often depicted as constituting a U-turn. This relatively brief stage was characterised by the revival of the mediation system and redistribution of power within the political–legal system. Finally, the third stage comprises the grand changes introduced since the 4th Plenum of the 18th Party Congress. The chapter then turns to the major reform measures introduced in the current round of reforms and uses empirical data to evaluate the extent to which they constitute a deviation from the previous reform path. Although the greater judicial transparency, personnel reforms, soft-centralisation of the judicial organs and ongoing supervision reform seen during this round have effected a fundamental overhaul of judicial power, they remain influenced by deeply embedded political constraints. The final section of the chapter summarises the Chinese characteristics of the pursuit of rule of law in a one-party state, including the ongoing populist turn, selective adoption of Western experiences, development of a distinct dispute resolution system, cycles of decentralisation and centralisation, and persistent party leadership.

In Chapter Six the tension between the global and the national scale of law is further studied through an analysis of the court reforms that are occurring a little everywhere. I inquire into the recent protagonism of courts in handling political conflicts and restructuring economies according to the Washington Consensus (the judicialization of politics), and analyze the impact this transformation has had on the judicial system itself (the politicization of courts). The globalization of the reform of the judicial system is thus understood as a form of globalization of law, particular attention being given to the contribution that the reformed courts may bring to democracy.First, I consider the global political, economic and ideological context in which the consensus of the rule of law and judicial reform and activism has developed. Second, I examine whether the role played by courts in the modern state is linked to the transformations undergone by the state itself. Third, I assess the prospects for democracy deriving from the worldwide focus on the rule of law and court reform.

In 2004, Indonesia’s Industrial Relations Court was established as a special court within the scope of the general courts. It has seen major challenges to its operations from the beginning. These challenges include ongoing internal problems related to the high levels of corruption within the Indonesian judicial system; the problems related to technical competence and legal integrity of career judges, ad hoc judges and registrars; and external problems including the workers’ lack of competence in civil litigation procedures and thus access to the court’s litigation processes. Together these problems have led to declining public confidence in the performance of the Court; a situation which has a greater adverse effect on employees and trade unions than on employers. The Court needs to be reformed, for example, by turning it into an autonomous special court, a recommendation that has been put forward by several ad hoc judges from union circles. Such progressive reforms, however, would require strong political commitment both from the judiciary and government; both of which appear currently to be mired in the past.

The court system in Indonesia has changed and expanded rapidly since 1998, with the introduction of a wide range of specialised courts. These come in a variety of forms, from independent specialised courts to ones that exist within the general court system, each with different forms of specialised jurisdiction and often a mix of non-career and career judges. These specialised courts often seek to disrupt existing concerns with the general court system in an attempt to circumvent the cycles of corruption. I consider the extent to which Lev’s work can help us understand this phenomenon. Lev’s empirical approach to the study of Indonesian law remains critical to ensure a deep view of courts. Further Lev’s work demonstrates the importance of legal culture as a means to study the politics of courts, while remaining conscious of the need to avoid ‘grand myths’ in favour of the empirically obvious. Lev’s work leaves a significant and intellectually formidable legacy for the study of legal culture and Indonesian courts. The chapters that follow in this volume consider the judicial innovation and specialisation that has occurred across the court sector in Indonesia. They also point to persistent features of judicial practice, such as the pervasiveness of corruption, that resonate with Lev’s assessment of the state of the courts.