The Experimentalist Court: The Supreme People’s Court and the Making of Commercial Legal Institutions in China
China’s economic experiments have attracted sustained scholarly attention, while the experiments in the judicial domain have received little notice. This article examines how the Supreme People’s Court (SPC) has emerged as a rule-maker through judicial experimentation. In contrast to the relatively modest legislature—the National People’s Congress (NPC)—the SPC has proactively issued judicial interpretations and documents to construct foundational legal norms in the private and commercial sector. Once proven effective in practice, many judicial rules will be codified into formal legislation by the NPC.
Situating the SPC within broader judicial development in Asia, this article identifies the distinctiveness of China’s judicial experimentalism. Unlike other Asian courts that derive rule-making legitimacy from constitutional mandates or common law traditions, the SPC operates with limited legislative authorization and legitimacy. It can even generate binding norms without any case basis. This article argues that, as part of China’s broader governance logic of “crossing the river by feeling the stones” in the post-Mao era, the legitimacy of judicial experimentalism is grounded in legal pragmatism and instrumentalism rather than formal legality. More broadly, this study may also contribute to judicial power expansion in Asia by highlighting how courts strategically construct authority within restrictive institutional environments.