The Judicial Document as Informal State Law: Judicial Lawmaking in China’s Courts

Abstract

Judicial documents, which interpret statutory laws and make new rules for adjudication, have become a robust basis for judicial decision making in China. This article examines why and how, with no explicit congressional delegation, the practice of producing judicial documents has become embedded in the adjudication of China’s courts; how judges can effectively refer to judicial documents during adjudication; and the extent to which judicial documents have enabled subnational courts, under the dual leadership of superior courts and the local Party committee, to efficiently and effectively respond to subnational diversity and differences in local politics. It proposes the theory that this judicial lawmaking practice exists in a “twilight zone” between legal and illegal and examines why it is suitable for maintaining the political resilience of China’s authoritarian regime.