Constrained Legality A Theory of Authoritarian Law in china

Abstract

Contemporary observers of the Chinese legal system are often puzzled by the system’s striking contradictions. On the one hand, China’s legal order has expanded dramatically since the end of the Cultural Revolution in 1979, and the state continues to pursue positive legal reforms in line with its commitment to “governing in accordance with the law.” At the same time, state crackdowns on civil society in conflict with liberal conceptions of the ‘rule of law’ still dominate Western media headlines. Adopting Joel Migdal’s state-insociety method, this thesis draws on evidence from personal interviews, government documents, speeches, news articles, descriptive statistics, and secondary literature to equip China observers with a better understanding of the Chinese legal system, its functioning, and potential opportunities for change. After examining the growth of the Chinese legal order and the ways in which society interfaces with the state through law, I develop a theory of authoritarian law I call constrained legality. Under constrained legality, the Chinese state partitions its legal space to promote legal reform in statesanctioned areas but not others. Rather than using law to constrain government rule, this system instead constrains citizen actions against the government by cracking down on those the state perceives as system-threatening. Moreover, it constrains the development of a morally acceptable form of the ‘rule of law.’ Constrained legality thus explains how law can contribute to the resilience of authoritarian regimes. By complicating our general understanding of the ‘rule of law,’ constrained legality also raises important questions about how the U.S. and others conduct “rule of law” assistance abroad.