Thursday, June 1, 2023

"Courts Without Separation of Powers" by Benjamin Chen and Zhiyu Li (Harvard International Law Journal)

"Courts Without Separation of Powers"
Chen, Benjamin and Li, Zhiyu 
Vol 64(1), 2023
Abstract: Like courts everywhere else, socialist courts are tasked to settle 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 people, they have the warrant and duty to contribute to the orderly administration of society. Constitutional theory and doctrine do 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 identify and tackle social problems ranging from public health to education to crime through the device of judicial suggestions. These suggestions transcend the legal questions raised by litigants and may be directed to private actors like companies and public entities including governmental agencies. Though not binding on their recipients, judicial suggestions are frequently acknowledged and sometimes adopted. Occasionally, they have even precipitated systematic reform. Our exploration of judicial suggestions in 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 dogma and doctrine shape the boundaries of institutions, thereby contributing to a more holistic evaluation of socialist courts and their place in the political legal order.  Click here to download the full article.

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