Local Courts as Legislators? Judicial Lawmaking by Subnational Courts in China

Abstract

Largely absent from the comparative literature on the inter-relationship between legislation and judge-made law is the case of China. The Chinese legal system is deeply rooted in the civil law tradition, and its emphasis has predominantly been on legislation as the primary source of law. The judiciary at national and sub-national levels has, however, recently played an important lawmaking role. The focus of this Article is on an important, albeit understudied, aspect of the rising judicial creativity in China, that is, the local courts’ evolving non-adjudicative, legislative role. The Article argues that Chinese sub-national courts, in particular the provincial-level courts, have lived in a constant tension between the long-standing aversion to local courts’ engagement in the business of judicial law-making on the one hand, and on the other the demand for rules to fill the gap caused by inadequate responsiveness on the part of the national level law-making agencies to local economic affairs. One surviving strategy that local courts have developed is to enact much-needed legal rules in the hope of ensuring consistent outcomes in factually similar cases. Due to ideological and institutional constraints, however, the local courts have attempted to downplay this law-making role that they have developed and portrait it as part of its routine, quotidian dispute-resolution function. This inevitably creates a gap between the reality of judicial lawmaking and the official rhetoric denying judicial lawmaking a place in the formal legal order in China.