Judicial Activism of Provincial Courts in China: Medical Negligence Law as a Case Study

Abstract

By presenting a case study of local judicial activism in medical negligence law reform in recent China, this article examines the active engagement of Chinese provincial courts in bottom-up reform of national laws. Contrary to conventional wisdom that law-making is the least important function of local courts, it finds that provincial courts in China, like the Supreme People’s Court, are actively engaging in law-making, which is an essential part of their functions. It also reveals that the national judiciary is more susceptible to political pressure while the provincial judiciary tends to be less vulnerable to political pressure and more responsive to populist pressure when exercising its law-making power. Therefore, provincial courts may be in a better position to reform national laws in response to urgent social needs, in contrast to the Supreme People’s Court, which encounters political obstacles in pursing top-down law reform. By exploring the dynamic national–local judiciary relationship in the law-making landscape, this article argues that judicial activism of provincial courts in national law reform opens an alternative channel through which populist views can effectively move up to become part of national laws despite China being a non-democratic country.

Keywords: Judicial Activism, Law Reform, Medical Negligence Law, Populist Pressure, Populist Legitimacy, China

JEL Classification: K13