The State as Actor Holding the state accountable
The State as Actor • Holding the state accountable – Administrative Litigation Law courts • Judges have very little discretion • Judge may only rule a specific action to be illegal • Judge – Cannot invalidate an administrative agency’s policies – Cannot force the agency to rewrite its procedures – Cannot prevent the agency from continuing the contested practice in other instances • Judge’s decision has no precedential value • Judge’s decision is binding only on case at hand
Administrative Litigation Law • What is the purpose? – Peerenboom (403): “one of the main purposes of administrative law is to protect individual rights and interests” – Peerenboom (403): “government officials [must] act in accordance with… the law”
Cultural vs. Institutional Hurdles to Administrative Litigation • Culture – Confucianism • Hierarchical social roles • People to defer to superior judgments of government officials who knew best the interest of whole society – Cultivated Confucian elite knew better – Vanguard Chinese Communist Party knew better
Cultural vs. Institutional Hurdles to Administrative Litigation • Institutions – Courts subordinate to party state – Wu Chuntao (co-author, Will the Boat Sink the Water? ) • “I used to wonder how it was that Chinese people were so spineless. But then I realized they have no other way of dealing with problems” • Go to ALL Cases by Disposition
The State as Actor • Holding the state accountable – Petitioning administrative agencies • “The Story of Qiu Ju” • “Petitioning…a traditional means of seeking justice firmly rooted in Chinese history” • “Defined broadly as an effort to “go past basic-level institutions to reach higher-level bodies, express problems and request their resolution” • Petitioning parallels, overlaps, and replaces formal legal channels • “Letters and visits bureaus” xinfang bumen 信访部门 – But also party/government offices in general, like township
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