Judicial Review in China: A Positive Political Economy Analysis

This article uses a Positive Political Economy approach to understand the development of judicial review of agency decisions in China, where formal legal institutions are often supposed irrelevant to administrative governance. This article demonstrates that, although the National People’s Congress has tried to limit the competence of courts to exercise judicial review, the Supreme People’s Court has deftly circumvented it by handing down expansive readings of administrative statutes, thus maximizing the judiciary’s interests and using its superior legal expertise to lend the State Council (the Chinese executive) supplementary oversight mechanisms for reining in defiant agents. Counter-intuitively, given its origins as an instrument of the National People’s Congress and the Party-State security apparatus, the Supreme People’s Court has been acting with considerable autonomy to influence an ever-widening range of policy domains by strategically manipulating the decision costs of local bureaucratic agencies that take decisions contrary to the policy preferences of their State Council principals. The emergence of Administrative Judicial Interpretations, the Court’s policy vehicle of choice, embodies a strategic partnership between the Court and the State Council based on specialization and common interest, often at the expense of the legislature.