Half a century ago, writing in this Review, Professor Jerome Cohen traced the “gradual abandonment” of the judicial-independence ideal in the early years of Chinese Communist Party rule.1 Despite this trend, Cohen suggested, China’s leaders may in time “acquire a deeper appreciation of the virtues of functional specialization, professionalization, and judicial autonomy.”2 A half century later, China’s judicial reform record is mixed. While the country has made considerable strides in building a more competent and professional judiciary,3 statist and populist forces have also deeply shaped the trajectory of reform.4
This Note assesses a relatively recent innovation in China’s judicial reform project: the use of “guiding cases” to achieve greater adjudicative consistency across lower courts.5 Since 2010, China’s highest court has converted fifty-six judicial opinions into what are intended to be de facto binding decisions that courts “at all levels should refer to . . . when adjudicating similar cases.”6 Traversing subjects as wide-ranging as securities, land use, homicide, and graft, these guiding cases offer a potentially important new tool for the roughly 200,000 jurists charged with administering China’s legal system.7
Guiding cases have generated significant discussion among scholars and officials. Some proponents cite their potential to fill statutory lacunae, unify legal standards, improve judicial efficiency, and limit judicial discretion.8 Others point generally toward returns to judicial flexibility,9 professionalism,10 and integrity.11 Meanwhile, less sanguine commentators have raised doubts as to China’s institutional readiness,12 while others — even supporters — have focused attention on constitutional and political difficulties in the system’s design.13
Perhaps due to the elevated role of “case law” in many non-Chinese legal systems, analyses of guiding cases have often taken on a distinctly comparative flavor. Some have likened guiding cases to common law precedents, arguing that imbuing cases with “stare decisis–like authority”14 may bring China’s civil law system into closer alignment with the Anglo-American legal tradition.15 Others have noted civil law analogs16 or sought to distinguish guiding cases as distinctively local.17
This Note aims to accomplish two goals in two parts. The first is to illume a clearer image of guiding cases and their contemplated role within China’s distinctive legal and political structure. The emerging portrait is that of a still-nascent system that has struggled to establish itself within China’s hierarchy of legal authority. Still, appreciable progress has been made. The second goal is to place guiding cases in comparative context, finding that despite widespread “common law” rhetoric, systems of this sort are hardly foreign to civil law. In fact, unqualified invocations of the common law can mislead more than they inform. The Note ends with parting thoughts on future reform.
I. The Guiding Case System
Part 1 begins with a brief overview of the role of cases in modern Chinese legal history and the various constraints facing the Supreme People’s Court. It then turns to the history, framework, and impact of guiding cases, with attention to challenges that have shaped, and will likely continue to shape, their development.
In its various forms, “case law” has played a longstanding but ancillary role within the Chinese legal tradition, dating back as early as the Western Zhou (eleventh century–711 B.C.).18 The legal systems of premodern China were primarily code based, and though ancient China boasted a rich array of case compilations,19 as did Republican China (1912–1949) and its case reporters,20 legal cases have generally been supplementary under the primacy of legal codes.
The story of modern Chinese case law begins in the early 1980s, shortly after the country began rebuilding its legal system from the rubble of the Cultural Revolution.21 In 1983, the Supreme People’s Court (SPC) — once a “repressive and, at times, insignificant state security agency” under Mao22 — began to issue collections of decided cases as a kind of “internal regulation” of lower courts.23 In 1985, the SPC commenced its now well-established practice of publishing “typical cases” (dianxin anli) in its official publication, the Gazette of the Supreme People’s Court, alongside other guidance documents, including regulations, speeches, judicial interpretations, and replies.24
The SPC’s exercise of its guidance authority operates within a terrain of significant legal and political constraints. Though the Court is the “highest adjudicative organ of the state,”25 with 340 judges and nine vice-presidents, it is controlled by the Communist Party through both the suffusion of Party membership in the Court’s personnel and direction from the Party’s Central Political-Legal Committee.26 State institutions also play an important role, notably the National People’s Congress (NPC), China’s highest legislative body, whose standing committee “supervises” the SPC.27 Still, whether due to the “entrepreneurial choices of senior justices” in “constructing support bases for judicial empowerment,”28 more recent institutional pragmatism,29 or the basic reality that it falls upon some institution to clarify legislative ambiguities — particularly in China’s modern market economy — the SPC has managed to carve out space for autonomous action while still following the Party-state’s overall direction.
The SPC’s issuance of various guidance documents, including typical cases, is just one example of this exercise of constrained autonomy. Because legislative power is constitutionally exercised through the NPC and the NPC Standing Committee (NPCSC),30 the SPC is in theory precluded from engaging in guidance activities that might be construed as properly “legislative.”31 Understood in this context, the SPC’s typical cases have stayed in relatively safe waters. Chinese judges do not treat them as legal authority, have generally “retain[ed] discretion” as to when to follow them, and do not cite them in judicial opinions.32 The typical case’s primary purpose has not been the clarification of statutory ambiguity, but rather the promotion of “the correct application of well-established doctrine.”33 Because they are paradigmatic but nonbinding, typical cases have generally steered clear of having the kind of authoritative ambiguity-resolving impact that might intrude upon the NPC’s lawmaking prerogatives or Party interests.34
1. History. — Throughout its development, the guiding cases system proceeded in a manner fully characteristic of China’s evolving policy process at the start of the new millennium: local experimentation,35 consultative authoritarianism,36 and — in judicial administration specifically — the pendulum swing from professionalism to populism.
As early as 1987, Chinese scholars began seriously debating the merits of adopting “precedent” (panli) to further judicial reform.37 Inspired by Anglo-American examples and responsive to the perceived inadequacies of typical cases and other guidance documents, scholars began to push proposals that would give adjudicated cases general legal effect.38 In 1999, the SPC called for “diligence” in pursuing a system of case guidance,39 which was soon followed by local experiments in Zhengzhou, Chengdu, and Tianjin in the early 2000s.40 These experiments have been described as fairly spontaneous efforts to enhance the supervisory authority and political status of local courts.41 Meanwhile, scholars penned articles that continued to advocate for the adoption of case guidance.42
In 2004, the SPC began to test the waters by adding a new section to published cases in the Gazette that contained legal rules abstracted from each case.43 The SPC also began to publish more cases that focused on filling statutory holes rather than merely restating or explicating well-established doctrine.44 Finally, in late 2005, the SPC’s Second Five-Year Reform Plan listed the construction of a guiding cases system as a formal policy objective for the court.45 Chinese academics were invited to consult.46
Meanwhile, the SPC proceeded apace — at least for some time — as an institution with strong “professionalist” goals under its President, Xiao Yang, who generally evinced a commitment to technocratic reforms that sought to improve the competence, stature, and independence of the judiciary.47 In his 2006 and 2007 annual reports before the NPC, Judge Xiao listed further work on guiding cases as a goal for the following year.48 But although the Second Five-Year Plan directed that the SPC “issue regulations related to the case guidance system,” little progress was made.49 When the SPC announced its Third Five-Year Reform Plan in 2009, it did not mention guiding cases at all.50
This interlude might be attributed in part to the SPC’s later swing toward populism under its new president, Wang Shengjun, an official with no legal training who hailed from the state security apparatus.51 Wang’s tenure, beginning in March 2008, was characterized by a concerted revival of Maoist motifs and Confucian norms in adjudication, emphasizing mediation and popular responsiveness over formal legal institutions and processes.52 Guiding cases — a potentially significant reform within the formal legal apparatus — would seem to have meshed uncomfortably with this trend.
Another reason for delay may have been resistance from the NPC, which was said to have seen the court-led system of case guidance as interfering with its lawmaking authority. While the SPC already had a history of filling statutory lacunae through issuing judicial interpretations to lower courts, it encountered little “risk” in doing so because it often consulted first with the NPCSC before issuance and was legally required to post interpretations for NPCSC review afterward.53 In contrast, the NPC would have a far harder time in “effectively supervising” individual guiding cases54 — a point that some academics had made in defending guiding cases as a way of implementing “judicial activism” (sifa nengdong zhuyi).55 Commentators cited fear of “harm to legislative power” as the reason why the SPC had to make a number of submissions to the NPCSC before finally winning approval.56
Whatever the cause for delay, Zhou Yongkang — then the Communist Party Politburo Standing Committee member in charge of the country’s security apparatus — publicly endorsed guiding cases in late 2009, resuscitating the initiative.57 But unlike the proposal described in 2005, Zhou’s vision was not limited to the judiciary; in his view, both the procuratorate and the public security bureaus should also erect their own case-guidance systems.58
Though professionalist-leaning officials and many entrepreneurial academics undoubtedly saw this development as a victory, the system’s nonlinear development and tripartite outcome hint at a broader gulf between how different policy actors conceived of the system itself. Judicial professionalists and scholarly advocates of judicial activism might have preferred an exclusively judicial case-guidance system, while populists and other competing organs who believed the “needs of the masses” were best served through “balanced development” across all three legal institutions may have preferred a three-branch solution.59 Given the nontransparency of internal deliberations, it is hard to know for certain, but it is likely that the system was established as a result of the kind of Party-led negotiated policymaking that has become characteristic of China’s modern policy process.60
2. Framework. — On November 26, 2010, the SPC’s Adjudication Committee issued The Provisions of the Supreme People’s Court Concerning Work on Case Guidance (Provisions).61 Later, in 2015, the SPC issued clarifying regulations (Rules).62 The two together comprise the system’s formal architecture.
The Provisions begin with several overarching aims: “to summarize adjudication experiences, unify the application of law, enhance adjudication quality, and safeguard judicial impartiality.”63 To realize these goals, the SPC is charged with issuing guiding cases through its Office for Case Guidance Work,64 which manages the “collection, selection, review, release, study, and compilation of Guiding Cases,” and coordinates case guidance work among courts nationwide.65
To become a guiding case, a rendered decision must be “of widespread concern to society”; concern “legal provisions . . . of [a] relatively general nature”; possess “a typical nature”; be “difficult, complicated, or of new types”; or otherwise have “guiding effect.”66 It must also be a case in which the “facts are clearly ascertained, law is correctly applied, and reasoning for the adjudication is sufficient.”67 Finally, in a possible nod to more consequentialist populist ideologies, a guiding case must also contain “good legal and social outcomes.”68
The Office for Case Guidance Work considers guiding case recommendations from every level of the judicial system. Intermediate people’s courts and basic people’s courts recommend cases through the higher people’s courts; a higher people’s court may recommend cases once a majority of its adjudication committee concurs,69 and an SPC adjudication unit may also refer SPC decisions or lower court decisions to the Case Guidance Office.70 Meanwhile, “[r]epresentatives of people’s congresses, members of committees of the political consultative conference, people’s assessors, experts, scholars, lawyers, and other people” can also recommend cases, either to the original court that rendered the effective judgment, or, after enactment of the 2015 Rules, directly to the Office for Case Guidance Work itself.71
In reviewing cases, the Office for Case Guidance Work may seek further consultations with state organs or outside experts.72 Once it is satisfied that the relevant criteria have been met, the Office forwards candidate guiding cases to the SPC Adjudication Committee for review.73 Upon approval, guiding cases are printed and distributed to each of the higher people’s courts and published in the Gazette of the Supreme People’s Court, in the People’s Court Daily, and on the SPC website.74 Each higher people’s court is in charge of “supervising” the use of guiding cases within its jurisdiction.75
Guiding cases must appear in a standardized format, containing: a “Title,” “Keywords,” “Main Points of the Adjudication,” “Related Legal Rule(s),” “Basic Facts of the Case,” “Results of the Adjudication,” “Reasons for the Adjudication,” and notes.76 To illustrate with a brief example, consider Guiding Case 14 (GC 14), entitled “A Certain Dong and a Certain Song: A Robbery Case.”77 Arising out of circumstances in which two minors committed robbery to fund their patronage of an Internet cafe, GC 14 endorsed a basic people’s court’s decision to issue an injunctive “prohibition order” banning the minors from entering “Internet bars, game rooms, and other such places” for three years.78
Not unlike those found in American legal databases, GC 14 begins with a set of keywords designed to facilitate usage: “criminal,” “robbery,” “crimes committed by minors,” and “prohibition order.”79 The next section, “Main Points of the Adjudication,”80 is something akin to the “holding” of the case — which Hu Yunteng, the SPC’s former top research officer, characterizes as the “deciding rules that were abstracted out of guiding cases.”81 In GC 14, the “holding” was that in certain cases involving minors who have been given a public surveillance sentence or a sentence suspension, courts may impose a “prohibition order” according to “the specific circumstances of [the] crime and the degree to which the prohibited items are related to the criminal act committed.”82 More concretely, and based on the facts of the case itself, the Main Points of the Adjudication also indicates that when a minor is “induced into crime by Internet use, [the court] may prohibit him from entering specified places such as Internet bars for a certain period of time.”83 GC 14 thus offers both the abstracted rule — the validity of certain kinds of prohibition orders — and the case-specific holding on prohibitions against patronizing Internet cafes.
The next section, “Related Legal Rule(s),” lists relevant statutory provisions, while the final three sections home in on the facts, ruling, and reasoning of the originating court itself.84 Under “Reasons for the Adjudication,” GC 14 explains that in part because “the defendants were induced into committing robbery mainly by the need for money to pay for Internet bars,” had “long indulged in online games,” and were minors with “relatively poor self-control,” a limited ban against patronizing Internet cafes would effectuate clear rehabilitation goals.85
Once effective, guiding cases are intended to exert de facto binding power over courts. Article 7 of the 2010 Provisions stipulates that “People’s courts at all levels should refer to the Guiding Cases . . . when adjudicating similar cases.”86 Textually, the use of the word “should” (yingdang) connotes obligation — a point that was bolstered by statements from Hu Yunteng shortly after the Provisions’ passage.87 Discussion has also focused on the meaning of the word “refer” (canzhao).88 For years, there was much uncertainty as to whether lower courts were permitted — or perhaps even required — to explicitly cite guiding cases.89 Some suggested that guiding cases should be cited in the “basis” section of an opinion, others argued that they should be referenced in the “reasons” section, and still others opposed citing them at all.90 This question touched directly on whether guiding cases are themselves binding sources of law; after all, permitting citation in the “basis” section of decisions might contravene the constitutional prohibition against Chinese courts from lawmaking.
The 2015 Rules put an end to this debate, stipulating that lower courts “should quote the Guiding Case as a reason for their adjudication, but not cite it as the basis of their adjudication.”91 In other words, guiding cases should be invoked not as an independent source of law but instead as a necessary aid to judicial reasoning. When citing, judges must quote the serial number of the guiding case and the case’s “Main Points of Adjudication.”92 Judicial personnel should also independently “inquire about relevant Guiding Cases.”93 When litigating parties quote a guiding case as a “ground [for the] prosecution . . . or defense,” the judicial personnel should explicitly explain the decision to rely (or not) upon the cited guiding case.94 Thus, the 2015 Rules did much to legitimate the use and citation of guiding cases in lower court decisions, while still supporting the view that guiding cases were binding de facto but not de jure.
3. Growth, Impact, and Constraints. — The guiding cases system has made marked strides since its inception. In total, the SPC has issued fifty-six guiding cases,95 drawn fairly evenly from every level of the judiciary, with the SPC (fourteen) and the higher people’s courts (seventeen) producing the most.96 The most represented substantive areas have been civil (twenty-six), criminal (nine), administrative (nine), and intellectual property law (nine).97 Beijing and Shanghai courts account for nearly half (twenty-six) of the total cases issued.98
The current pool of guiding cases offers a window into the concerns that animate China’s policymaking elite, touching not just upon matters of commercial law that undergird the country’s growth priorities,99 but also upon hot-button social problems, from land use100 to traffic liability101 to corruption.102 This configuration aligns with judicial populism’s focus on consequences — recall the “good legal and social outcomes” line from the Rules — as well as a persistent tendency for China’s legal apparatus to conceptualize law primarily as a tool of social management.103
Judges and litigants have begun to cite guiding cases in court. In one account from an early adopter, Judge Ou Zelin of the Dongguan Municipality No. 1 People’s Court describes how he “took the initiative to refer to Guiding Case No. 1” in two contract disputes in 2011.104 Later, as guiding cases began to percolate down to the lower courts, scholars began to assess more data.105 One widely circulated report found that, as of December 2015, judicial proceedings registered in the Fabao Judicial Proceedings Database had in some way utilized twenty-five guiding cases (an increase of three from 2014).106 The most cited guiding case, which deals with tort liability mitigation in traffic accidents (GC 24), has been applied 103 times in cases in the Fabao database.107 Other studies have shown measurable increases in judicial awareness of guiding case regulations.108 And according to one arbitration expert, guiding cases have also been applied as sources of substantive rules in a number of arbitral proceedings.109
Still, the impact of guiding cases remains fairly limited. On the supply side, SPC officials have acknowledged the unsatisfactorily slow pace of issuance.110 Fifty-six cases hardly seem adequate to the task of “unifying legal standards” across numerous areas of law. On the demand side, usage rates of those cases issued have also remained low. More than half of all guiding cases have yet to be applied at all to cases in either the Fabao or another similar database.111 Among those that have been applied in the Fabao database, all but one have been invoked fewer than twenty times.112 Low usage rates could be due to several factors — the lack of pertinent guiding cases, poor broadcasting, judges’ or lawyers’ ignorance, or judicial timidity. One study found that in roughly one-fourth of the 181 total cases in the official database that mentioned guiding cases, litigants never mentioned the guiding case that was ultimately cited by the court, suggesting a mismatch between lawyers’ and judges’ reasoning consistent with deficiencies in legal representation.113 As for judicial timidity — in a system where judges, for reasons of “face” and promotion, often consult with appellate bodies prior to rendering their own decision114 — open invocations of a new uncertain form of authority may take more time. This point finds support in recent data indicating that judges have frequently opted to engage in implicit, or “hidden” application by invoking the “spirit” of a guiding case without directly citing it.115
Finally, even if the data indicate some progress, they tell us little about false positives and false negatives — proceedings in which guiding cases were improperly invoked or improperly ignored. For guiding cases to take cultural root, judges and litigants will have to not just apply them but also do so rigorously.116 One study identified several cases in which Chinese judges altered facts in order to conform them to the scope of applicability of certain guiding cases; others have narrowly construed pertinent guiding cases in order to avoid citation.117
The impact of guiding cases won’t come into full relief until they settle into a clearer role in relation to other guidance documents — especially judicial interpretations — which similarly resolve statutory ambiguities.118 Judicial interpretations tend to be general rule-like pronouncements whose drafts are often precleared with the NPC, especially when they border on the “legislative,”119 while guiding cases are fact-specific and selected through a process that contemplates no formal role for the NPC.120 Some guiding case proponents have argued that the more “abstract” judicial interpretations often enable issuers to shape the law according to political interests, while guiding cases are less susceptible.121 It would seem, however, that because guiding cases are still selected in top-down fashion with judicial policymakers rewriting the facts and extracting the “Main Points of the Adjudication,” all under the directive of promoting “good social and legal outcomes,” these distinctions may be less sharp than they appear. Still, the procedural and other differences do suggest that guiding cases can enable the SPC to respond more nimbly and more independently to emerging legal gaps in lieu of the formal consultations required of other guidance instruments.
Finally, there is the larger question of whether guiding cases might alter the balance of power between courts and other legal and political actors. The SPC’s Hu Yunteng has lamented that the guiding cases issued so far have been fairly “safe”; it would be better, he argued, if guiding cases had more of a “breakthrough” quality, so as to promote judicial activism and exploration (sifa nengdong zhuyi).122 Whether this emboldened role is achievable will depend largely on the SPC’s ability to navigate difficult political terrain. The tendency toward “safe” cases likely reflects not only policy incrementalism, but also caution in the face of carefully guarded NPC interests as well as the Party’s historic skepticism of over-empowering judicial actors.123 As Professor Fu Hualing notes: “Rule of law and judicial professionalism are possible to the extent they may strengthen and legitimize the CCP’s rule.”124 Guiding cases have been billed as a means of standardizing judicial decisionmaking, a goal that the Party has endorsed; but if the new system entails a marked expansion of judicial authority, it will likely meet resistance.125 For now, the SPC is unlikely to issue “breakthrough cases” that threaten to upset existing allocations of power.
II. Guiding Cases in Comparative Context
Part I mapped out several of the distinctive features of guiding cases: their top-down selection, their status as something less than “law,” as well as the SPC’s politically uncertain place in carving out for them a more definitive role. With that as background, Part II turns to a comparative question — whether guiding cases are appropriately characterized as something resembling a common law transplant.126
Early scholarly literature in China focused heavily on Anglo-American analogies,127 while top SPC officials later justified the adoption of guiding cases partially on comparative grounds. In 2007, then–SPC Research Chief Judge Shao Wenhong prefaced remarks on guiding cases by noting that the differences between common and civil law systems were becoming “increasingly small,” and that higher levels of mutual borrowing were part of a broader trend of global legal convergence.128 Perhaps for these reasons, rhetoric surrounding guiding cases — including in English-language scholarship — has been highly comparative,129 with terms like “stare decisis–like authority,”130 “[c]ommon [l]aw with Chinese [c]haracteristics,”131 or the word “precedent” appearing as shorthand descriptors for guiding cases themselves.132
Legal-family concepts such as “civil law” and “common law” are analytical devices133 — taxonomies — that form a part of a broader “grammar of . . . legal discourse.”134 If deployed appropriately, they can help us frame our understandings of legal phenomena and enable productive communication between disparate legal orders.135 But to be gainful, the inquiry must be disciplined, or else invocations of foreign legal models can mislead more than they inform. This section seeks to bring analytic clarity to how we classify and speak of guiding cases — first by demonstrating that they actually resemble certain civil law constructs more than they do common law precedent; and second, by highlighting a few limited ways in which common law comparisons might still be helpful.
The temptation to make comparisons to common law is unsurprising. In a somewhat exaggerated version of conventional wisdom, common law is almost exclusively judge-made law, while civil law is almost exclusively the law of systemized codes. In this telling, common law jurists are viewed as law-dispensing fountainheads — “culture heroes” like “Coke, Mansfield, Marshall, Story, Holmes, Brandeis, [and] Cardozo”136 — while the civil law consigns judges to the role of “a kind of expert clerk.”137
To be sure, these essentializing characterizations have some significant basis in truth. Common law systems trace back to a tradition in which “judges overtly make the law”138 through deciding individual cases that, once rendered, become legally binding as precedents under the principle of stare decisis. The common law judge is in constant dialogue with the past and with the future.139 In her exercise of applying, extending, refining, distinguishing, and fashioning rules from specific facts, she joins with her many colleagues as actors in a relatively decentralized model of legal evolution.140 In contrast, civil law traditions, which trace their roots in some form or another to Justinian’s Corpus iuris civilis and later codifications, regard systemized legal codes as their primary source of law.141 As such, civil law judgments are generally not themselves new sources of formal law.142
While generalized distinctions of the sort above make for useful shorthands, they can do violence to how both legal systems operate in practice. American law, to take an obvious example, is heavily statutory.143 Precedents cannot easily substitute for the complexity, or the democratic legitimacy, of the U.S. Code.144 Likewise, the variegated civil law systems of the world are administered by jurists who engage in more than the work of mere “expert clerk.” Contrary to the “folklore”-ish belief that “systematic legislation would be clear, complete, and coherent,”145 even the great civil codes and statutes146 do not self-evidently possess determinate meanings at every turn. Like their common law brethren, civil law jurists must necessarily “fill gaps and resolve conflicts in the legislative scheme.”147
Absent a binding system of precedent,148 how do civil law countries prevent judges from divergently applying ambiguous law? As a general matter, many systems rely on fear of appellate reversal to enforce consistency. This mechanism has helped give rise in some systems to a doctrine of jurisprudence constante, which gives authority to a series of cases that continuously and uniformly apply the same rule of law.149 While constituting something less authoritative than legal precedent,150 jurisprudence constante nonetheless crystallizes legal rules through autonomous judicial action. In that sense, it is similar to other civil law doctrines that have created “effective precedent.”151 Other civil law jurisdictions’ treatment of case law has been more top-down. For instance, Taiwan’s Supreme Court compiles select adjudications into “precedents” that are generally followed by lower courts.152 A Committee for the Compilation of Precedents is responsible for reviewing and selecting candidate cases, and the final compilations are heavily edited down to the level of legal principles.153
Viewed in this light, speaking of guiding cases as something analogous to a common law precedent would misrepresent much of what the system is today. First, in a formal sense, guiding cases are not themselves sources of law. This means, among other things, that all guiding cases must have a statutory hook, whereas many areas of the common law trace back only to judicial pronouncements.154 Second, while common law judges are decentralized lawmakers who “proffer the individualized judgment as a statement of a rule or proposition that can be applied . . . to a generalized category of similar cases,”155 Chinese judges wield vastly less authority in their relationship to guiding cases. Even decisions ultimately designated as “guiding” do not become binding upon completion of judgment. Chinese judges are thus far less likely to be forward looking in the way of common law judges, who must always — one would hope — consider the precedential implications of their interpretation moving forward. Third, guiding cases are heavily edited; top-down selectors abstract holdings out of cases and rewrite the facts and reasoning in a much more centralized process of judicial policymaking.
Finally, guiding cases do not share many of the common law’s underlying normative commitments. Consider Professor Douglas Edlin’s observation that “[t]he common law’s preoccupation with reason and judgment stems from its public claim of the intersubjective validity of the applications of reason in judgment, for if a particular judgment is valid for a given instance then it should be valid in all instances.”156 In other words, the “reasoned judicial opinion” is itself a “form of public discourse” that in each iteration serves as a continuing justification for the common law’s ongoing legal authority.157 Guiding cases, however, are not expressions of metanorms exalting reason, nor do they derive legitimacy from a “public claim of . . . intersubjective validity.”
Rather, China’s guiding cases bear more than a passing resemblance to several civil law practices that have also sought to promote uniformity in legal application. Like other civil law jurisdictions that cannot constitutionally regard judicial interpretation as legally binding, China has given de facto binding effect to decisions instead. And by mandating the inclusion of a “Related Legal Rule(s)” section in each guiding case, the SPC has made clear that guiding cases must have some basis in codified law, reinforcing the code supremacy of the Chinese legal system. Moreover, civil law judges do not typically view themselves as wielding a forward-looking lawmaking function; even in jurisdictions that adopt jurisprudence constante or its equivalents, judicial decisions only become softly binding after a higher court recognizes a trend of similar judgments. Meanwhile, Chinese judgments never automatically convert into “guiding decisions,” and are instead selected and edited in a process resembling Taiwan’s. The concept of a “civil law varietal” better approximates guiding cases’ less authoritative role within China’s legal system, as well as the fact that they have not altered other aspects of its civil law system — from the lesser authority of its judges to the monopoly of legal codes on sources of law.
To be clear, the claim of the previous subsection was not that commentators who make common law comparisons have all somehow imputed false elements to guiding cases. But because such comparisons are pervasive, our use of them should be disciplined so as to not unwittingly create false impressions. Indeed, common law comparisons can be helpful so long as they are appropriately limited in scope.
One can, for instance, speak of the common law case method as sharing some important parallels with guiding case reasoning. Professor Edward Levi defined precedential reasoning as “a three-step process” in which, first, “similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case.”158 At that level of generality, the description approximates the analogical reasoning required of Chinese jurists, except that the relevant “rule of law” has already been derived for them in the “Main Points of the Adjudication.”159 These parallels help justify the SPC’s decision to seek training on the case method from foreign institutions steeped in the Anglo-American legal tradition.160 Such partnerships have the potential to promote more rigorous application of guiding cases, so long as expositors of common law reasoning adapt their instruction to a localized context.161
Second, both guiding cases and common law precedents exist, at least in part, to promote uniformity and predictability. Unsurprisingly then, official Chinese rationales for constructing a case-guidance system have at times echoed justifications for stare decisis in Anglo-American law. Writing for the Supreme Court, Chief Justice Rehnquist once defended stare decisis on the grounds that it “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”162 Compare this reasoning to the preamble to the 2010 Provisions on guiding cases, which aim “to summarize adjudication experiences, unify the application of law, enhance adjudication quality, and safeguard judicial impartiality.”163
Lastly, one might simply observe the functional overlap between common law judging and guiding case adjudication in their respective treatment of legislative ambiguity. In filling in statutory gaps,164 guiding cases have applied a range of approaches, including what American scholars would call “textualist” and “purposivist” methods of statutory interpretation.165 In GC 9, for instance, the SPC adopted a “strict textual reading of statutory articles,”166 while in a variety of other cases, the approach has been decidedly more purposivist.167 Such approaches are not foreign to civil law jurisdictions, but the functional overlap may suggest another area for educative exchange, as well as an area where “judicial activists” might be able to assert greater SPC authority by developing a body of model interpretive approaches.
Problems of interpretive ambiguity and adjudicative consistency are nothing new. The use of case law to help unify legal application has played an important role in a number of legal traditions. In spite of these longstanding practices, or perhaps because of them, China’s new guiding cases system has generated an unusual amount of attention and optimism. Still, many challenges remain. Low rates of case issuance and usage will require sustained effort from policymakers, as will the more politically delicate task of defining the system’s scope of authority amid competing institutional and ideological interests. The future of guiding cases will therefore hinge upon the political savvy of various institutional actors, as well as the Party-state’s still-evolving vision of what role courts should play in ordering Chinese society.