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Editorial

Touching the Proverbial Elephant: The Multiple Shades of Chinese Law
Hualing FU
p. 3-9

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In a powerful speech to celebrate the 40th anniversary of China’s reform and opening-up policy, Xi Jinping declared: “We must resolutely reform what should and can be changed, and we must resolutely not reform what shouldn’t and can’t be changed” (gai gai de, neng gai de, women jianjue gai; bu gai gai de, bu neng gai de, jianjue bu gai 该改的, 能改的, 我们坚决改; 不该改的, 不能改的, 坚决不改).

Xi’s speech captures and explains the dilemma in which, on one hand, China has initiated the most repressive campaign against political dissidents, real or perceived, as show-cased in the continuous crackdown on lawyers, journalists, religious believers, and civil society activists, among others; and, on the other, has jump-started the most systematic and structural legal reform, unprecedented since Chinese reform started 40 years ago. Xi’s speech also reflects the duality of Chinese reform: sustaining and strengthening the political system with the leadership of the CCP at the core and liberalising the economic and social system.

China continues to face and struggle with a dilemma similar to that observed by Roberto Unger four decades ago: economic development demands certainty and rule-based governance, but political control necessitates flexibility and political expediency (Unger 1976). Politically, China has turned decisively toward an illiberal and anti-liberal order, with further concentration of political power reflecting the true nature of a well-disciplined and well-ordered party-state, as Lenin originally designed. Socially and economically, vibrancy has continued in the private sector and semi-autonomous social spheres; both under the guiding hands of the Party, of course. Yet, despite the recent overreach of the party-state and attempts to restrain the private sector and narrow social space, China’s semi-autonomous social and economic spheres remain resilient. While the mighty Party continues to shape and direct those semi-autonomous spheres, it has shown a degree of deference to profit-driven market logic and the spontaneous order of society.

Dual state theory, which unfortunately originated in, and was based on, the political practice of Nazi Germany, has been used to conceptualise authoritarian legality and guide our understanding of China’s political and legal development (Fraenkel 2010; Schmitt 2005). There is a prerogative state in which authoritarian leaders rule hands-on according to political expedience, but leave conventional matters to regular legal rules. In the Chinese case, the duality in the political economy makes a dual legal system. As neo-authoritarianism advances, the Party moves to the front stage and becomes hands-on in managing important affairs, crowding out legal rules and institutions. It has expanded and solidified a prerogative state to solve politically sensitive matters through substantively extra-legal methods. Media governance is, except for a limited range of private law issues, entirely in the hands of the Party to be handled politically, leaving the state little role to play (Lei 2018; Stockmann 2013). Since the end of 2018, in the name of restructuring party-state organs, religious and ethnic affairs and a few other subject matters have been effectively wrestled away from the hands of the state. In regulating the media, religion, and ethnic affairs, the law is now silent, and the irrelevance of law over the mass internment in Xinjiang offers a perfect example of an exceptional state at work. The newly created exceptional items are added to a long list of sensitive matters over which law and legal institutions have little control, ranging from collective/mass disputes, terrorism, and national security, to major corruption (Pils 2019).

In the shadow of, but largely parallel to, the extra-legal regime, there is a normal legal system, less politicised, reform-oriented, and semi-autonomous, which continues to evolve toward maturity and grow in institutionalisation and sophistication by offering rules-based solutions to a wide range of social conflicts. Private law in post-Mao China has prospered, growing in form and substance toward a global converging path. In solving ordinary cases relating to the bread and butter issues of ordinary people, the court operates in a large realm of freedom within the parameters set by the Party while factoring political considerations into the exercising of judicial discretion. Among others, He Xin’s research on courts in general and divorce litigation in particular (He and Lin 2017a, 2017b) offers illuminating examples of this point. Even the police, the traditional arm of Party repression, are showing more deference to a trial-centric legal process (Guo’s article in this issue; see also Nesossi and Trevaskes 2018; Lewis 2011).

How to explain the co-existence of two parallel and potentially opposite norms, institutional designs, and practices? For the Party-state, the prerogative state is necessary for the maintenance of order and stability in the normal state, and without the extra-legal power of the Party in the background, and increasingly in the forefront, any legal normalcy that people desire and the market demands will collapse. There has always a siege mentality in China’s Party-state, and it has been gaining new momentum in recent years. Indeed, the Party’s de facto sovereign power is used to keep its challengers, real or imagined, at bay, thus maintaining China’s political stability, protected from the threat of internal and external instability.

For its critics, the Party creates and sustains a normal legal system for legitimacy, governance, and economic growth. While there may be little, if any, moral commitment to rule of law, in particular the use of law to curb arbitrary power, a well-functioning legal system renders credibility to the otherwise undemocratic and more than occasionally repressive system. Ironically, China’s success in achieving a higher degree of rule by law legitimises the Party-state that is intrinsically hostile to it. The common ground between the Party and its critics is that the normal legal system in China is not autonomous, and it exists largely, if not principally, to serve a particular instrumental value. If law is simply another tool that the Party uses to govern, the duality is a superficial distinction without theoretical difference, and is bound to collapse for lack of theoretical support.

In the field of Chinese legal studies, there is the methodological tension between research focusing on mainstream legal practices and that focusing on China’s exceptionalism. Like the proverbial elephant that was touched by a blind man, Chinese law, reflecting Chinese political and socio-economic realities, takes different shapes. It is highly compartmentalised, and depending on where it is touched, one finds expanding gaps where law is largely irrelevant; legal traps where a thin legal veil tries to cover political repression; and legal practices of varying levels of institutionalisation but largely compatible with counterparts in any mature legal system. Focusing on the stability imperative and the resulting repressive and preventative measures, one sees a clear authoritarian revival and an enhanced Chinese exceptionalism (Minzner 2018; Biddulph 2016); but by shifting attention to routine legal practices and institutional building, one sees commonalities, compatibilities, and convergences of Chinese law in a global context (Liebman 2015; Zhang 2012). This Introduction puts forward the argument that while the Party has been expanding and consolidating an exceptional or prerogative state in China, it has also recognised, and to a significant degree offered protection to, a normal legal system, full of Chinese characteristics, of course. While private law is subject to political control, it has also maintained a high degree of autonomy, which is necessary and indispensable in the current social and economic context. A symbiotic relationship thus exists between the normalcy and its exception, with each depending on the other for its existence. Articles in this special issue encourage an academic dialogue between research on the exceptional state of affairs and that on routine legal practices. (…)

In this increasingly Schmittian world, how should China’s rule of law project be assessed? With the Party’s political power expanding exponentially, is there a higher degree of autonomy in private law in China? Given that China’s well-known duality in economic growth takes place side-by-side with political restriction, the intention may be to quarantine political crackdowns in public law zones and leave private law breathing room to facilitate market transactions. After all, is autonomy of private law ever possible in the Schmittian conceptualisation of the dual state, and will the fragile autonomy of private law in China be able to survive the sustained assault of the prerogative state?

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References

Bibliographical reference

Hualing FU, « Editorial », China Perspectives, 2019-1 | 2019, 3-9.

Electronic reference

Hualing FU, « Editorial », China Perspectives [Online], 2019-1 | 2019, Online since 19 March 2018, connection on 23 May 2019. URL : http://journals.openedition.org/chinaperspectives/8629

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About the author

Hualing FU

Fu Hualing is Warren Chan Professor in Human Rights and Responsibilities, Faculty of Law, the University of Hong Kong.hlfu@hku.hk

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