China's Turn Toward Law

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 highy legalistic way, empowering courts against other state and Party entities, insisting on legal professionalism, and bringing political pourers 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. Thus, even if China is indeed deepening its dictatorship, it is doing so through harnessing the organizational and legitimizing capacities of lava rather than circumventing it.

We argue that both top-down political considerations and bottom-up social demands 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 side of the county 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 lava 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 populist political legitimacy.