Precedent and Chinese Judges: An Experiment

Forthcoming, American Journal of Comparative Law

Harvard John M. Olin Center for Law, Economics, and Business, Discussion Paper No. 997, 04/2019

Harvard Public Law Working Paper No. 19-17

35 Pages Posted: 25 Apr 2019 Last revised: 11 Jul 2019

See all articles by John Zhuang Liu

John Zhuang Liu

The Chinese University of Hong Kong, Shenzhen

Lars Klöhn

Humboldt University of Berlin - Faculty of Law

Holger Spamann

Harvard Law School; ECGI

Date Written: September 14, 2018

Abstract

We experimentally study the decision-making process of judges in China, where judges are specifically prohibited to cite prior decisions as the basis for their judgments, and where, in past surveys, most judges explicitly stated that precedent played at most a marginal role in their decisions. In an experiment resembling real-world judicial decision making, we find, however, that precedent seems to have a significant influence on the decisions of the participating Chinese judges. Indeed, judges spend more time reading prior cases than statutes, and they typically read precedents before they access the statutes. On the other hand, judges rarely mention the precedent in their reasons. Our findings suggest that the Chinese judiciary operates much more similarly to its homologues in the U.S. and elsewhere than their written opinions and much folklore would suggest.

Keywords: China, Experiment, Precedent, Case Law

JEL Classification: K40, P29, P48

Suggested Citation

Liu, John Zhuang and Klöhn, Lars and Spamann, Holger, Precedent and Chinese Judges: An Experiment (September 14, 2018). Harvard John M. Olin Center for Law, Economics, and Business, Discussion Paper No. 997, 04/2019 ; Harvard Public Law Working Paper No. 19-17. Available at SSRN: https://ssrn.com/abstract=3364637

John Zhuang Liu

The Chinese University of Hong Kong, Shenzhen ( email )

Lars Klöhn

Humboldt University of Berlin - Faculty of Law ( email )

Unter den Linden 6
Berlin, D-10099
Germany

HOME PAGE: http://www.rewi.hu-berlin.de/en/lf/ls/kln

Holger Spamann (Contact Author)

Harvard Law School ( email )

Cambridge, MA 02138
United States

ECGI ( email )

c/o ECARES ULB CP 114
B-1050 Brussels
Belgium

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