This Article proposes a reunderstanding of what is conventionally called China’s legal system. It argues that a number of observations about its institutions are not plausibly explained using the conventional vocabulary and concepts of legality. When we see inconsistencies, we tend to explain them as signs of the immaturity of the legal system, or as mistakes, or as unrepresentative aberrations. This kind of explanation is driven by a conscious or subconscious convergence theory.
But we have to take these inconsistencies seriously and come up with a theory does not require us to treat them as inconsistencies; a theory that treats them as features, not bugs. This Article argues that China has been building a system for the maintenance of order and the political primacy of the Chinese Communist Party (“CCP”), not for the delivery of justice. It urges that we should not make ethnocentric assumptions about how various institutions in China—or indeed in any society with which we are not familiar—do or should operate merely on the basis of similarity of (translated) name or apparent isomorphism. If too many observations don’t fit the model, then it’s time to change the model, not to dismiss the observations.
The argument presented here—that we should look beyond the “rule of law” model as the sole way of analyzing and measuring a society’s order maintenance institutions—has implications for our understanding of authoritarian governance beyond just China. It is customary to locate authoritarian, non-democratic states at a midpoint on a spectrum with no rule of law at one end and perfect rule of law at the other, the midpoint being labeled “rule by law.” But “rule by law” turns out to be a thin and unsatisfactory concept. Applying this label amounts to saying not much more than that the institutions in question don’t measure up to the rule-of-law standard. We must learn to look for the apparent outliers, the errors and imperfections, and to ask ourselves whether they can be incorporated into a different paradigm that treats them as normal and expected. We might well find that the variety of human institutions is far richer than we had imagined.
a. Professor of Law and David A. Weaver Research Professor, George Washington University Law School. I would like to thank Mary Gallagher and Nicholas Howson for organizing the conference at which this Article was first presented. For very helpful comments and suggestions, I thank Bill Alford, Sarah Biddulph, Nick Cheesman, Rogier Creemers, Mike Dowdle, Matthew Erie, Mary Gallagher, Weifang He, Xiaoqian Hu, Jed Kroncke, Ke Li, Ling Li, Ben Liebman, Michael Palmer, Shitong Qiao, Teemu Ruskola, Samuli Seppänen, Sue Trevaskes, Frank Upham, Lynn White, and Qianfan Zhang. They are not, of course, responsible for the content. I would also like to thank the staff of the University of Illinois Law Review for their excellent editorial assistance. This Article was inspired in part, and is informed, by my experiences in interpreting the Chinese legal system for the purposes of the U.S. legal system, including testimony as an expert witness in litigation and the submission of an amicus curiae brief in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co., 585 U.S. ___, 138 S. Ct. 1865, 201 L. Ed. 2d 225 (2018). The brief is available at https://perma.cc/MQ63-GZ6C.
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