Ex Post v. Ex Ante: From the Perspective of China

Abstract

The economic terminologies Ex Ante and Ex Post have been adopted by legal profession to describe the two analytical methods when judges decide cases. Because the two perspectives attach importance to different faces of law, i.e. normativity and pragmatism, there have been quite some discussions about which one should be given priority especially when invoking the two perspectives would lead to different or even contrary judicial decisions. Evidence of why the discussions matter can also be found from some U.S. Supreme Court cases, where the Court overruled lower court’s holding by changing to the other perspective, e.g. Clark v. Community for Creative Non-Violence. According to current literatures, courts as rule-makers in the United States and United Kingdom are more inclined to an Ex Ante perspective, where judicial rulings are expected to affect people’s incentive of actions as well as following courts’ decisions. Although the discussion has been going on for decades in Anglo-American legal system, few studies have been carried out on how the two perspectives working with each other in civil law countries. Based on the living experience and legal education background in China, the author comes up with the question: will common law courts’ preference to Ex Ante be also a truth with Chinese judges? To answer this question we need to think about why courts would like to invoke one perspective rather than the other. China lacks a legal tradition of stare decisis and often the public have no way to access to judgments. The legal system, especially how a judge decides cases and the non-binding status of judicial decisions in China, leads to a different conclusion on this issue of choice between Ex Ante and Ex Post. Although more than 1,000 guiding cases have been released by the Supreme People’s Court in recent years, they are working in quite a different way than precedents in Anglo-American legal system, and this will probably not change the author’s speculation. However, some recent development in internet media might cause some changes to the mentioned conclusion, because new medias, such as Weibo, has provided a brand new channel for the general public to get access to influential cases and judicial decisions. Besides, the Supreme People’s Court’s 2013 policy requiring issuance of judgments on the internet may also contribute to judges’ shifting of preference from Ex Post to Ex Ante. This means Chinese courts will pay more attention to normativity of judicial decisions than before.