Local Courts as Legislators? Judicial Lawmaking by Subnational Courts in China

The focus of this article is on an important, albeit understudied, aspect of the rising judicial creativity in China, that is, the evolving nonadjudicative, legislative role of the local courts. The article argues that Chinese subnational courts, in particular the provincial-level courts, have lived in a constant tension between the long-standing aversion to local courts’ engagement in the business of judicial lawmaking on the one hand, and on the other, the demand for rules to fill the gap caused by inadequate responsiveness to local economic affairs on the part of the national-level lawmaking agencies. One surviving strategy that local courts have developed is to enact much-needed legal rules in the hope of ensuring consistent outcomes in factually similar cases. Due to ideological and institutional constraints, however, the local courts have attempted to downplay this lawmaking role that they have developed and portray it as part of their routine, quotidian, dispute-resolution function. This inevitably creates a gap between the reality of judicial lawmaking and the official rhetoric denying judicial lawmaking a place in the formal legal order in China.