Compartmentalized Law and Judicial Restraint: An Inductive View of Some Jurisdictional Barriers to Reform

Abstract

Among the various classes of legal documents which have become publicly available in China in recent years, few are more interesting than the growing body of reported decisions by courts and other institutions. Usually resulting, directly or indirectly, from litigation or some similar process, these interpretative rulings and decided cases have appeared in increasing numbers in the nine years following the first publication of the Supreme People's Court's own gazette. Since then a number of general collections of judicial interpretations and abstracts of court decisions have been brought out, some of which pre-date the Cultural Revolution. The Supreme People's Court now supplements its gazette with periodical collections of reports of cases, and more specialized collections of interpretations and cases have been published to meet various specific needs, academic and professional.Access to material of this kind on a larger scale than hitherto sheds light on various aspects of the Chinese legal system itself which for foreign observers were previously obscure. Moreover, although most of the cases and decisions which are published emanate from the higher levels of the legal hierarchy, they bring the reader closer both to the practical workings of the legal system and to the thought processes which guide it.The question which inevitably arises is whether these newly available materials should be regarded as providing more than just a heightened awareness of the dynamics of Chinese society and its legal system. Outside China, the study of Chinese law is increasingly regarded not merely as a discipline for the description and analysis of a specialized category of Chinese institutions, but more importantly as a source of detailed prescriptive norms of the kind expected from legal systems in the world as a whole.