The Judicial Document as Informal State Law: Judicial Lawmaking in China's Courts

Abstract

Judicial documents, which interpret statutory laws and make new rules for adjudication have become a robust basis for judicial decision making. This article examines why and how, with no explicit statutory delegation, the practice of producing judicial documents has become embedded in the adjudication of China’s courts, how the judicial document can be effectively referred to by judges during adjudication, and 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 subnational diversity and the differences in local politics. It proposes a twilight theory of China’s judicial documents, explaining why this judicial lawmaking practice exists in a twilight zone between legal and illegal and why it is suitable for China’s authoritarian legal regime with political resilience.

Keywords: judicial lawmaking, judicial documents, China, courts, informal state law