Law-making functions of the Chinese courts: Judicial activism in a country of rapid social changes |
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Authors: | Chenguang Wang |
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Institution: | (1) Law School of Tshinghua University, Beijing, 100084, China |
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Abstract: | The judicial production of law and the legislative production of law make a striking distinction between the two legal traditions.
Despite of these differences, judges in both legal traditions in adjudicating cases have a common task, which is the application
of legal rules to the facts of cases pending for judgments. The tension between the certainty and the “discretion” is universal
for any legal system and, to a certain extent, it poses a hard dilemma for the rhetoric of rule of law. In the transitional
countries such as China where rapid social changes and transformations take place, the judiciary and judges can not escape
from taking more active roles in interpreting or even law making process. It arouses much controversy, particularly in continental
legal traditions, for the judiciary is deemed to perform a mechanical role in adjudicating cases. This article intends to
analyze the needs for judicial law-making function in China and its reasons. It reveals that judicial interpretation constitutes
an important source of law despite its ambiguous legislative position. The article argues that judicial activism is inevitable
against the transitional nature of current Chinese society. |
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Keywords: | continental law tradition legislative power separation of state functions stare decisis structure of legal rules judicial interpretation judicial law-making function judicial discretion judicial activism |
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