Judicial Lawmaking and the Influence of Comparative Law
Studies in Comparative Law and Legal Culture series
Edited by John O. Haley and Toshiko Takenaka
Chapter 3.4: Judicial activism in China
Judicial activism versus judicial restraint is a perennial theme in legal literature. Based on the principle of separation of powers, judicial activism frequently carries a negative connotation, while judicial restraint is championed as the antidote for unbridled discretion. Since China launched economic reforms in the late 1970s, the Chinese judiciary has undertaken various reforms, especially in terms of the qualification of judges, the judicial processes and the role of the court in society. Indeed, the past three decades witnessed an oscillation of advocacy, between inquisitorial and adversarial trial proceedings, between professionalism and populism, and between activism and passivism. In recent years, Chinese judges have been urged to be active, rather than passive or neutral, in executing their responsibilities. Considering the currency and relevancy of “active judicature” (nengdong sifa), this chapter attempts to investigate judicial activism in China. Toward this end, the following discussion is composed of three sections. To situate the Chinese experience in a comparative context, section II provides a succinct account of judicial activism as understood in common law countries. Section III discusses judicial activism with Chinese characteristics, focusing on judicial interpretations (sifa jieshi) and “active judicature” and highlighting the Chinese characteristics, even though the present study is not intended to be a comparative analysis. Taking the discussion to a more general level, section IV draws conclusions in light of China’s ongoing efforts to build an effective legal system. In 1947, Schlesinger coined the term “judicial activism” in a magazine article, but he did not really define the parameters of the term.
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