More Law, Less Courts: Legalized Governance Judicialization and Dejudicialization in China

Abstract

The global trend has been toward the judicialization of social, economic and political issues. Civil countries, newly established democracies and even authoritarian regimes have now adopted various forms of constitutional review that greatly expand the policy-making capacity of judges. In administrative law, there is a heavier emphasis on judicial review, and, in many countries, a transition from soft/procedural to hard/substantive review, which allows judges in effect to substitute their judgment for that of administrative agencies.In China, there has been an undeniable shift toward legalized governance, including a wide range of administrative reforms that seek to implement administration according to law (yifa xingzheng). However, China offers mixed support for the judicialization of administrative or governance more broadly. Although there has been an increased reliance on courts to handle an expanding range of cases, and administrative litigation has become an accepted feature of the PRC political-legal landscape, the courts continue to play complementary role to political-administrative mechanisms in dispute resolution, and an even more limited role in the making of key policies. Moreover, there are signs of retrenchment - a reversal of judicialization or dejudicialization - as it has become increasingly evident that courts are not the proper venue for resolving many of the socially, politically and economically contentious issues that typically arise in a developing country undergoing rapid and fundamental change, especially one as large, diverse and complex as China.Part I provides a brief overview of the many efforts to legalize governance. Part II examines the role of the courts in dispute resolution in general, and in administrative litigation in particular. Part III applies the main explanations in the theoretical literature for the judicialization of administrative and governance to China. These theories have been developed largely in light of the histories of economically advanced democracies in Euro-America or the experiences of newly established democracies. Part IV goes beyond existing theories to explore other explanations for the relatively more limited role of courts in China. Some of the reasons are China-specific, or particular to non-democracies or democracies dominated by a single party, particularly with respect to politically sensitive cases. Others reflect the specific challenges that middle-income countries face, and the difficulties courts have handling the kind of growing pains cases that arise in developing countries. Part V discusses dejudicialization. Part VI concludes with some thoughts about the likely direction of future developments in China; some observations about the limits of existing theory to explain developments in authoritarian regimes; and a reminder that, even assuming judicialization is desirable in developed democracies, expecting courts in developing countries to resolve economically, politically and socially contentious issues may be asking too much of a still evolving institution.