Why do Judges Cite the Party? References to Party Ideology in Chinese Court Decisions

Abstract

The availability of court decisions in open access databases has opened a new avenue for textual approaches to investigating judicial practice in China. Against the backdrop of recent adjustments in the Party-state relationship, this study analyses the interaction of core ideological concepts and legal arguments through the lens of court decisions and demonstrates that the courts do refer directly to concepts of Party ideology, albeit only in a very small number of cases. In these decisions, ideology serves mainly as a justification of the judicial correction of legislation that produces unjust results. The courts refer to ideology to appease the losing parties in lawsuits, as well as to explain and interpret substantive law. In so doing, the courts respect the fundamental separation between Party policy and law in principle, and have attempted neither to replace law by ideology nor to "legalise" ideological concepts. It is noteworthy that the references to ideology that Chinese courts make are primarily a response to the courts' political embeddedness, their relatively weak position within the Party-state apparatus and the absence of the autonomy of law.