Abstract: In several recent cases, the Supreme People's Court of China ruled that local police owe a positive duty to protect individual members of the general public. In strong contrast, the United States Supreme Court declared in two police nonfcasance cases that such duty did not exist under the Federal Constitution. This is counterintuitive, because one would expect that in a liberal democracy where the judiciary is independent and powerful, judges would impose higher standard on local law enforcement officers. One possible explanation is that law does not matter in a developing country such as China, so laws are drafted and interpreted in favor of citizens for the purpose of windowdressing. But if law does not matter at all, why are some proposed laws drafted numerous times before passing the legislature? A conceptual game theory model is able to resolve both the empirical puzzle and the theoretical one. In addition, this interactive model can be applied to explain a broad range of issues in law and politics. The theory is illustrated by the judicial politics of bankruptcy law in China, the making of bankruptcy law in Vietnam, the Chinese law on governmental liability, the American law on police nonfeasance, and changes in the governmental liability law in South Korea.
The goal of this paper is to explain the relationship between laws on the books and power politics from a comparative perspective. The seed for this research is an empirical puzzle that springs forth from a comparison of governmental liability law on police nonfeasance between China and the United States. The following two cases, both of which center on police inaction, trigger the theoretical question.
In the first case, the plaintiff is a young woman who wanted to break off her relationship with a man after learning he was already married. The man threatened violence and the woman sought police protection several times. Unfortunately, no assistance was provided. A thug hired by the man threw acid on her face, deforming her and blinding her in one eye. The court found no tort liability for the police's failure to provide specific protection to a member of the public from harm done by another member of the public and dismissed the case.1
In the second case, the plaintiff is a businesswoman who managed a gift shop. There was a motel across the street. Early one morning, disturbing noises woke two guests staying in the motel. They suspected a burglary at the gift shop, and informed the motel manager. After a cursory inspection, the motel manager was certain of a robbery at the gift shop. The manager called the local police department twice and reported the ongoing crime. No police officer was dispatched. After about twenty minutes, the thief left with his booty. Thereafter, the store manager filed a complaint with the police department but got no response. After the business owner filed a lawsuit, the court found the police department liable for failure to protect the property of a member of the public and awarded damages equal to half of the total loss borne by the plaintiff.2
One of these two cases was decided in a democracy with arguably the most sophisticated judicial system in the world, and the other in an authoritarian regime where a functional legal institution barely existed three decades ago. For the uninitiated, a reasonable assumption is that the second case was decided in a democratic setting with a better and more independent judiciary. The decision in the first case seems to substantially favor the unresponsive police department, therefore it must be from a country with little governmental accountability and weak courts. This intuition is wrong, however. The first case was decided in the United States,3 the second in China.4 The former is a liberal democracy, and the latter an authoritarian state with a weak judiciary.
In this article, I attempt to resolve this apparent contradiction. …