Legality in Contemporary Chinese Politics

64 Pages Posted: 9 Oct 2018

See all articles by Taisu Zhang

Taisu Zhang

Yale University - Law School

Tom Ginsburg

University of Chicago Law School

Date Written: September 17, 2018

Abstract

The picture of Chinese law that many Western scholars and commentators portray is an increasingly bleak one: since the mid-2000s, China has been retreating from legal reform back into unchecked authoritarianism. This article argues that, much to the contrary, Chinese politics have in fact become substantially more law-oriented over the past five years. The Chinese Communist Party under Xi Jinping has indeed centralized power and control to an almost unprecedented extent, but it has done this in a highly legalistic way, empowering courts against other state and Party entities, insisting on legal professionalism, and bringing political powers that were formerly the exclusive possession of the Party under legal authorization and regulation. In fact, nowhere is this “legalism” more powerfully expressed than in the 2018 amendments to the Chinese Constitution, which show that, even if China is indeed deepening its dictatorship, it is nonetheless doing so through harnessing the organizational and legitimizing capacities of law, rather than circumventing it.

We argue that both top-down political considerations and bottom-up social demand are driving this recent turn towards legality: first, as a purely instrumental matter, governing China in a centralized, top-down manner requires a strong commitment to bureaucratic legalization. The sheer size of the country and its population creates severe principal-agent and resource allocation problems that force central authorities to either recognize some version of de-facto federalism, or to combat local corruption and abuse through rigorous law enforcement. With the recent political turn away from decentralized administration, the Party leadership must pursue the latter strategy of investing in legality. Second, and perhaps more interestingly, the Chinese population increasingly seems to attach significant amounts of sociopolitical legitimacy to law and legality. As a result, empowering legal institutions and positioning the Party leadership as a champion of legality against traditional bureaucratic corruption has been a major source of both personal status and popular political legitimacy.

Keywords: Legality, Authoritarianism, Populism, Political Control, Judicial Professionalism, Chinese Legal Reform

JEL Classification: K10

Suggested Citation

Zhang, Taisu and Ginsburg, Tom, Legality in Contemporary Chinese Politics (September 17, 2018). Virginia Journal of International Law, Forthcoming; Yale Law School, Public Law Research Paper No. 657; U of Chicago, Public Law Working Paper No. 689. Available at SSRN: https://ssrn.com/abstract=3250948

Taisu Zhang (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Tom Ginsburg

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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