Order of Power in China's Courts

Abstract

This article presents a theory of the order of power to explain the dynamics and interaction between the political and legal orders in China’s courts. This theory posits that the political order is embodied in the extensive administrative ranking system (ARS) of the PRC and has a systematic impact on the legal order regardless of the subject matter. The ARS is a system that regulates power relations between various institutional and personal actors in all key power fields, including courts. The order-of-power theory argues that the political order relativizes law during the processes of legal implementation, application, and enforcement. This theory provides a coherent explanation of judicial behavioral patterns in different subject matters, such as the centralization of criminal investigations in some crimes but not others, the distribution of corruption in China's courts and the outcome patterns of administrative litigation. This theory challenges the conventional wisdom that the political order and the legal order in China’s courts are partitioned based on the subject matter and asserts the opposite: the impact of the political order is systemic, comprehensive and applicable to the entire legal field across subject matters. This article fills a knowledge gap in Chinese law and politics, where the ARS has received little attention except in recent studies on administrative litigation. The article also identifies two distinct features of the ARS, its multi-dimensionality and interconnectivity, our current understanding of which is disproportionately poor in relation to their significance.

Keywords: Chinese law, comparative law, constitutional law, law and politics, authoritarian law

JEL Classification: K00, K10, K20, K30, K40, K41, K42