Book contents
- Law as an Instrument
- Law as an Instrument
- Copyright page
- Dedication
- Epigraph
- Contents
- Figures
- Tables
- Preface and Acknowledgements
- Abbreviations
- 1 Introduction
- 2 A Dual Constitution with Illiberal Characteristics
- 3 Judicial Interpretation as a de facto Primary Statute for Adjudication
- 4 The Judicial Document as Informal State Law
- 5 Guiding Cases as a Form of Statutory Interpretation
- 6 Bureaucratization of Judicial Precedents
- 7 Concluding Reflections
- Appendix: Methodology and Data
- Bibliography
- Index
4 - The Judicial Document as Informal State Law
Published online by Cambridge University Press: 07 July 2022
- Law as an Instrument
- Law as an Instrument
- Copyright page
- Dedication
- Epigraph
- Contents
- Figures
- Tables
- Preface and Acknowledgements
- Abbreviations
- 1 Introduction
- 2 A Dual Constitution with Illiberal Characteristics
- 3 Judicial Interpretation as a de facto Primary Statute for Adjudication
- 4 The Judicial Document as Informal State Law
- 5 Guiding Cases as a Form of Statutory Interpretation
- 6 Bureaucratization of Judicial Precedents
- 7 Concluding Reflections
- Appendix: Methodology and Data
- Bibliography
- Index
Summary
This chapter explores the unique function and role of judicial documents – a significant form of informal state law, as distinguished from formal statutory laws – in China’s legislative enterprise. In particular, it examines why and how, with no explicit statutory delegation, the judicial lawmaking practice of producing judicial documents has become embedded in the adjudication of China’s courts. It accordingly proposes a twilight theory of China’s judicial documents that explains why the practice of judicial lawmaking through producing documents exists in a twilight zone between legal and illegal and is suitable for China’s politically resilient authoritarian regime. Moreover, it demonstrates how the judicial document can be referred to effectively by judges in adjudication. It further investigates the extent to which the judicial document has enabled the court, under the dual leadership of the superior court and the local Party committee, to efficiently and effectively respond to the subnational diversity and the differences of local politics.
Keywords
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- Information
- Law as an InstrumentSources of Chinese Law for Authoritarian Legality, pp. 82 - 108Publisher: Cambridge University PressPrint publication year: 2022