Document Type
Article
Publication Date
Fall 2025
Abstract
The Communist Party’s influence over the Chinese legal system is generally assumed to be behind the scenes, largely invisible to outside observers. Since General Secretary Xi Jinping came to power in 2012, there has been renewed attention within and outside of China to the relationship between the Communist Party and the legal system. Much of this recent writing has emphasized the degree to which Xi’s efforts to affirm Party superiority and break down barriers between the Party and the State reflects a profound shift in governance and a reversal of a decades-long effort to distinguish between Party roles and those of State actors, including the courts.
In this Article, we add to this literature on the relationship between the law and the Communist Party in Xi’s China by examining two debates within China about the definition and form of law. We begin with actual court practice, examining whether and when Chinese courts cite Party-issued documents in their decisions. For much of the reform era, the dominant narrative among legal scholars was that courts should not cite Party regulations or documents in their decisions. Party influence should remain in the shadows. Our analysis of actual court practice between 2014 and 2018 tells a different story: courts rely on Party documents as a legal basis for their decisions in a wide range of cases. We identify and analyze approximately 5,000 cases from a database of 42 million court judgments. Chinese courts’ reliance on Party documents is striking given the near-consensus within legal academia in China that Party documents should not be the legal basis of a court’s holding. The cases suggest that courts turn to Party documents for a mixture of reasons: resolution of historical disputes, gap-filling and necessity, shifting of responsibility for decisions to Party entities, and alignment with Party policies. Yet much of the Party regulation we observe through the lens of court practice is routine or mundane. Despite the recent focus on shifts in Party oversight of courts, our findings suggest that courts have been treating Party documents as law all along.
We then turn to a recent theoretical debate among legal scholars in China about the legal status of Party documents in the Chinese legal system. Over the past decade, a group of prominent scholars has begun to argue both for increased study of Party regulations and for recognizing Party documents as law. This line of argument marks a break from the longstanding mainstream view that Party documents are not law. This new academic conversation suggests that the idea of law in China is being destabilized. Yet the debate has also inspired pushback from those who believe that maintaining separation between the Party’s internal rules and the legal system is vital to the rule of law.
The debates we track in this Article provide two windows into a foundational question: What is the definition and role of law in contemporary China? Examining court decisions demonstrates the need for scholars to focus in greater depth on the actual norms that Chinese courts apply. Excessive attention to whether courts follow the law obscures the question of what counts as law, as well as actual practice. Theoretical debates provide a window into a different but related question: What are the aspirations for law in China? The fact that the definition of law remains a contested fault line reveals unresolved tensions over the role of law in China’s authoritarian system, despite nearly five decades of legal construction. Our findings regarding both actual practice and academic debates suggest a strong likelihood that Party documents will play a growing role in court adjudication in the future, as well as likely increased Party regulation of routine or mundane matters. How these debates play out, and their effect on actual practice, will inform understandings of the role of law in China and of authoritarian law and governance more generally.
Disciplines
Comparative and Foreign Law | Courts | International Law | Law
Recommended Citation
Benjamin L. Liebman, Eva Gao, Xiaohan Wu, Rachel E. Stern & Margaret Roberts,
Out from the Shadows: Party Documents in Chinese Courts,
43
Berkeley J. Int'l L.
99
(2025).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/4699