Public Interest-Concentrated Judicial Reasoning: A Comparative Empirical Analysis of Legal Precedents
Cleveland State Law Review (2020 Forthcoming)
56 Pages Posted: 30 Aug 2019 Last revised: 5 Sep 2019
Date Written: August 12, 2019
The judicial system in China recently started using legal precedents (i.e., guiding cases) as a new legal source to eliminate adjudicative inconsistency. The guiding cases present the current judicial reasoning to some extent and can be used to predict the future of judicial reasoning in China. What are guiding cases? What legal issues do the guiding cases address? How do they address the legal issues? How do the guiding cases affect the legal system and adjudication in China? This research responds to these questions by empirical evidence and comparing with the judicial reasoning in the U.S. It is the first empirical research providing a systematic review of all the guiding cases published by 2019.
The guiding cases are de facto binding and treated as legal precedents by Chinese judges, even though the literature used to heavily debate about whether they are “common-law precedents.” This research rejects the dichotomy between civil law and common law in the modern age. Instead, it argues a trend of mixed and dynamic legal systems after it reviews the development of these two mainstream legal traditions and the history of Chinese law. Based on these arguments, this research deploys the jurisprudential theories and criteria that U.S. jurists are familiar with (i.e., formalism, realism, and pragmatism) to explain the guiding cases and the judicial reasoning in China. These jurisprudential theories are debatable by themselves. Thus, the hypotheses and the coding strategy in this research rely on their overlaps and conflicts – a public or private interest-concentrated perspective: How do Chinese courts treat the public and private interests under the various degrees of government intervention?
The empirical analyses in this research suggest some common characteristics of the judicial reasoning in China that are shared by the U.S. Supreme Court. Chinese courts are on the path towards pragmatism. The precedents are a pool of statutory interpretation and common-law rules made under both formalistic and realistic legal reasoning. Judges in China are state agents and follow state policies. On the one hand, they address social concerns and the public interest, which do not necessarily harm private interests or suggest conflicts with private interests. On the other hand, the Chinese courts are independent from administrative agencies, even though they defer to government interpretations of laws or decisions at a higher extent compared to the average U.S. Supreme Court.
Keywords: Guiding Case, Public/Private Interest, Pragmatism, Realism, Formalism, China
JEL Classification: K10, I10, O10
Suggested Citation: Suggested Citation