Courts Without Separation of Powers: The Case of Judicial Suggestions in China

Abstract

Like courts everywhere else, socialist courts are tasked with settling disputes. Their decisions are backed by the force of law. But unlike courts everywhere else, socialist courts are also required to support official ideology and policies. They are subject to legislative supervision and party leadership in the performance of their duties. The repudiation of the notion of separation of powers and the instrumental conception of law are conventionally taken to be defining—and defective—aspects of socialist legality. But the political accountability of socialist courts could also be empowering. Because socialist courts answer, in theory, to the party and the people, they have the warrant and duty to contribute to the orderly administration of society. Constitutional scripture does not prohibit socialist courts from venturing beyond the confines of adjudication to address issues not presented for resolution. We study how courts in the world’s largest socialist regime intervene in policy domains ranging from public health to education to crime by making judicial suggestions. These suggestions identify issues that go beyond the legal questions raised by a case and may be directed to private actors like business enterprises and public entities like governmental agencies. Though not binding on their recipients, judicial suggestions are often acknowledged, sometimes adopted, and have occasionally even precipitated legal reform. Our exploration of judicial suggestions in the People’s Republic of China illuminates a function that is available to socialist courts because of their political subordination to the party-state. More broadly, the approach exemplified here steps outside the rule of law and judicial independence paradigms to examine how constitutional doctrine shapes the boundaries of institutions, thereby contributing to a more complete understanding of socialist courts and the roles that courts might usefully take on in a world without separation of powers.