Authoritarian Legal (Ir)rationality:The Saga of 'Picking Quarrels' in China

Abstract

This paper seeks to enhance our understanding of authoritarian legal systems and broaden our comprehension of the generic concept of legality. It explores ongoing discussions about the authoritarian legality of the People’s Republic of China. While China seems to be "turning to law" in the present context, it is crucial to examine the nature and quality of the authoritarian legality. This paper introduces the concept of "legal rationality," signifying a state where the discretion of dominant officials is constrained by legal rules that are publicly accessible, clear, and consistent. In this paper, I argue that legal rationality is a fundamental element for any functional legal system, even within an authoritarian framework.

The paper examines legal rationality in post-Mao Zedong China, with a specific focus on its decline under the administration of Xi Jinping. In doing so, the paper challenges the conventional assumption of “dual state”, which posits that the existence and expansion of prerogative power in an authoritarian system are confined solely to its politicized sphere, marked by political prosecutions. Instead, this article argues that the decline of legal rationality in an authoritarian legal system leads to the arbitrary discretion of dominant officials infiltrating both political and non-political domains. It illustrates this point through the example of "picking quarrels and provoking trouble," a notorious catch-all crime exploited by Chinese authorities in both political prosecutions and routine criminal cases. This contributes to our understanding of authoritarian legality and demonstrates how the erosion of legal rationality has adversely impacted both the politicized realm and routine legal order in Xi’s China.