Judicial Lawmaking in China? Judicial Lawmaking by Sub-National Courts in China

Judicial Lawmaking in China? Judicial Lawmaking by Sub-National Courts in China

The relationship between the roles of the legislature and of the judiciary in the development of law in a legal system is a subject of enduring interest. The traditional comparative law scholarship regards the different relationship between statute law and judge-made law, and in particular the different role of the judge, as ones of the 'characteristic differences' between the common law and the civil law traditions. In the conventional view, civil law is mostly a codified system where the role of the judge is primarily to interpret and apply a written body of statutes, whereas common law is made and developed in large part by judges through judicial precedents, not legislators. This traditional dichotomy between common law as judge-made law and civil law as code law plainly 'oversimplifies and misrepresents', and it has been challenged by a large and growing literature. It is true that the inter - relationship between legislation and judge-made law differs from one jurisdiction to another; so does the role of the judge in the creation, formation and development of legal rules. This difference is, however, one more of degree than of fundamental nature.