The Use of Precedents in China's Court System

[Randy W]

from the Sixth Tone

 

Ordering the Courts: Understanding China’s Big Precedent Push

• China wants its jurists to look for “similar cases” before issuing rulings, but that’s not always as simple as it seems.

 

A citizen’s ability to predict a court’s future decisions based on its past rulings ... is what determines whether a court system meets the required standards of rule of law.

- Shen Weiwei, associate professor

 

The late United States Supreme Court Justice Oliver Wendell Holmes, Jr. once wrote: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” In other words: A citizen’s ability to predict a court’s future decisions based on its past rulings — and to base their actions on these predictions — is what determines whether a court system meets the required standards of rule of law.

The advantages of requiring judges to check precedent are obvious. Doing so can unify judgment criteria, help judges adjudicate tough cases, limit space for arbitrary rulings, increase the transparency and efficiency of China’s judiciary, and provide relatively stable expectations for citizens and society. But in a huge and unevenly developed nation accustomed to traditional civil law, there remains much to be done.