Judicial Legitimation in China

40 Pages Posted: 12 Mar 2019 Last revised: 8 May 2021

See all articles by Benjamin Minhao Chen

Benjamin Minhao Chen

The University of Hong Kong - Faculty of Law

Zhiyu Li

Durham Law School

Date Written: March 8, 2019

Abstract

China’s judiciary is becoming increasingly professionalized, and its courts are enjoying a degree of autonomy they have not enjoyed since the Revolution. By promulgating abstract interpretations of the code and through the selective publication of cases, Chinese judicial institutions today function as policymaking bodies on both national and local scales. But are they able to legitimize social policy? This question has received little attention from legal scholars, but its answer is important for our understanding of the judicial role in the governance of modern China.

We field a survey experiment that seeks to measure the persuasiveness of courts vis-à-vis administrative and non-regulatory actors. We find that courts are sometimes able to induce support for the policies they endorse. We also find, however, that this ability is not unique to courts and is at least equaled by administrative bodies.

Our results have profound implications for the future of judicialization in China. They illuminate the potential of litigation as a tool for fostering social change. But they also explain why the regime does not rely on judicial institutions to convince the public of the rightness of government policy: other governmental entities are as persuasive as courts, if not more so. More broadly, the empirical findings presented here suggest that while the Chinese party-state might find it advantageous to operate through law, it does not necessarily have to govern through courts.

Keywords: China, Courts, Agencies, Legitimation, Public Opinion, Public Interest Litigation, Constitution Review, Survey Experiment

Suggested Citation

Chen, Benjamin Minhao and Li, Zhiyu, Judicial Legitimation in China (March 8, 2019). Cornell International Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3349491

Benjamin Minhao Chen

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

Zhiyu Li (Contact Author)

Durham Law School ( email )

Durham
United Kingdom

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