36 Pages Posted: 20 Apr 2011
Date Written: April 20, 2011
Is the PRC legal system pursuing a trajectory towards liberalization, or has it embarked upon a different developmental path? To provide an answer to this question, comparisons of China with an ideal legal order have been considered less useful than approaches able to account for differences, seeming aberrations or twisted paths towards the rule of law. Besides, legal change has been seen driven by historical or institutional legacies.
This paper attempts to make sense of seemingly contrasting dynamics by bringing cross-fertilization between political science and law one step further. In this work, I conceive of the legal system as an entity composed by a multitude of legal and non-legal (political) institutions and organizations which are to a certain degree autonomous, and to a certain degree embedded in networks of communication, control or dependence. Any change in a given institution or organization will set in motion a chain of change which will propagate across the system or areas thereof. Outcomes will be neither regular nor predictable. To observers, at any of its states the system will seem balanced on a precarious equilibrium between progress towards the law and shifts away from the law. Holistic perspectives of the legal system are implicit in conceptions of the law as an agent of positive change. But, such perspectives have also a potential to account for the opposite development.
As an illustration of how legal change can set in motion a turn for worse, I develop an analytical tool I label ‘legal erosion’ and use it to observe political-legal responses to protests, with a narrow focus on protests by petitioners.
A progress towards ‘formal legality’ can be observed in this area too. Until 2003, protests by petitioners were managed through shelter and deportation (shourong qiansong). As this measure was abolished, the need to provide a renewed and different response to protests arose. But, the newer response to the policing of petitions was by no means more liberal than earlier ones. The practice to ‘pick up’ petitioners and bring them back, something that existed in parallel to shelter and deportation, became dominant and witnessed a process of legalization. By 2006, innovations by local organs and politicized interpretations of the law allowed to “attach” ‘retrieval’ to legislation on public security, and create a new class of minor offences related to petitioning. Significant continuities with the past could be observed at each stage of this process. The eventual result was a severe limitation of the right to petition, and the beginning of a vicious circle of politicization.
This article begins by arguing that it would be useful to build on existing (and implicit) conceptualizations of the legal system as a complex adaptive system, to examine systemic properties that induce shifts away from the law, while of course not neglecting the study of virtuous circles of liberalization. In the second paragraph, I elaborate a concept to enable analyses of the legal system’s resilience to perturbations. In the remaining part of the article I outline the adaptive process born out of changes in the means to govern petitioners. It is not clear that current models of institutional transformation can fully account for this development, as the “birth” of retrieval involved features of antithetical models of change.
Keywords: China, law, petitions, rule of law
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