UC Berkeley

My dissertation explores the role of courts in making the law respond to the social and economic transformations that have defined contemporary China. In particular, I find that Chinese judges working in the civil law tradition are nevertheless able to effect incremental changes in existing law without having to resort to the formal legislative process.

Part I reviews the theory and practice of Chinese statutory interpretation, paying special attention to the use of sources and methodology. I demonstrate that despite the sometimes overdrawn differences between civil law and common law jurisdictions, techniques of statutory interpretation can and are employed by Chinese judges to give the law a fluid and dynamic character, thereby facilitating its adaptation to emergent societal circumstances.

A legal innovation can spread as a court’s novel reading of a statute is adopted by other courts and becomes mainstream. Part II describes and accounts for the diffusion of judicial innovations in Chinese courts since the 1980s. The confluence of two factors, the norm of judicial openness and the medium of the internet, have made prior judicial decisions readily accessible and a convenient resource for Chinese judges confronting hard cases. These prior judicial decisions serve as a form of political communication between courts that indicates the acceptability and feasibility of policy innovations in the law. Three case studies – the “Guiding Cases” issued by Chinese Supreme People’s Court, and a series of provincial-level cases on driving under the influence (DUI) and ATM Theft – demonstrate how innovative statutory interpretations diffuse through the court system and eventually precipitate legislative amendment of outdated statutes. I supplement these case studies with surveys, survey experiment, and interviews.

Finally, Part III of my dissertation describes the law-making function of the judiciary in other civil law countries, such as Japan and Germany. Drawn from the convergence of judicial roles between common law and civil law systems, it further assesses the social, political, and legal conditions necessary for judicially initiated policy innovations to succeed in China. This chapter demonstrates that judicial innovations in China survive because of their silent and gradual character of their assimilation by the legal system. Some of these innovations fade, however, due to political reasons or the transience of the societal conditions that gave rise to them.

Overall, I conclude that despite their protestations to the contrary, Chinese courts balance the tension between the unchanging code and the changing social and economic conditions in Chinese society by engaging in experimentation through statutory interpretation. In this function, Chinese courts are not that different from their sisters in common law jurisdictions or, for that matter, from courts everywhere.