On Court’s Function Of Determining Public Policies

Courts have been playing different roles and assuming different duties in its development. Historically courts were established to address various social disputes. The modern courts are turning ever independent and extending beyond its traditional domain to include new functions: one being discretionary power and the other denotative functions. Some scholars conclude that all types of courts have the following functions: firstly, the literal function of settling disputes and secondly, the metaphorical function of managing society and public authority and determining public policies.With the emergence of judicial activism, the discretionary power of judges is intensified. Without specification, judges can innovatively explain and establish new precedents under the guidance of the general rule of equity and justice and social conceptions. This complements the inadequacy of law, clarifies its obscurity and synchronizes it with reality. The discretionary power unbinds its application from specific cases, and unroots the social causes of the cases, influencing policy-making. Verdicts influence not only specific cases, but also social and political issues on the government’s side. This renders courts pre-occupying in public policy making. Modern courts’ participation in public policy making is widely approved of, therefore it is urgent to probe into this respect. This thesis focuses on public policy making function of courts.Chapter one mainly concentrates on the introduction of court functions, with a focus on detailed discussion of public policy formulation function, and elaborates its jurisprudence basis. From the perspective of court function, section one puts forward that the court has other extensive functions besides the basic function of settling down disputes. Then, the section elaborates what public policy is and gives an explanation of the definition of public policy formulation function. Section two provides the jurisprudence basis of public policy formulation from the perspectives that the rise of empiricism makes for the active practise of court, the rebalance between judicial restraint and judicial activism, and the reason-ability and advantage of court’s formulating public policy.Chapter two mainly focuses on the background, current situation and predicament of Chinese court’s formulating public policy. Section one analyzes the current background of Chinese court’s formulating public policy. This section studies the practical basis of the Chinese court’s formulating public policy from the aspects of the development of science and technology, social transformation, interest pluralism, the increase of modern lawsuit, the backwardness of legislation and the change of court’s task. Section two shows the reality of Chinese court’s especially the Supreme Court formulating public policy. Section three finds out five main obstacles to the public policy formulation, they are the staleness of juridical philosophy, institutional defect, perverted justice vision, deficiency of specific knowledge and irregularity of interest groups.Chapter three starts from the the mechanism of foreign court’s formulating public policy, first compares the differences between two legal system of court’s formulating public policy, and then investigates the methods of American and European court’s formulating public policy. Next, the chapter summarizes popular methods of court’s formulating public policy in developed countries, and the methods are review of constitutionality, creating case law and legal interpretation. Finally, the chapter makes a feasibility analysis of transplanting foreign experience into China.Chapter Four continues the above analysis and studies current ideal outlets for Chinese courts and puts forward some rational suggestions for Chinese court’s formulating public policy. The suggestions are the renovation of judicial philosophy, the imitation and modification of Amicus Curiae, the consummate of the Supreme Court’s law case directing mechanism, the proper implementing of law precedent system, the expansion and limitation of court’s the legal interpretation power, the restriction of discretionary power of judges.