EAST ASIA WORKSHOP: POLITICS, ECONOMY & SOCIETY
“Legality in Contemporary Chinese Politics”
Tom Ginsburg
University of Chicago Law School
Nov 21, Wed 12:00-1:30 pm
Pick Lounge, 5828 South University Ave.
Pizza will be provided
About the Presenter
Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago, where he also holds an appointment in the Political Science Department. He holds B.A., J.D. and Ph.D. degrees from the University of California at Berkeley. He currently co-directs the Comparative Constitutions Project, an NSF-funded data set cataloging the world’s constitutions since 1789, that runs the award-winning Constitute website. His latest book is How to Save a Constitutional Democracy (2018, with Aziz Huq), and his other books include Judicial Reputation: A Comparative Theory (2015) (with Nuno Garoupa); The Endurance of National Constitutions (2009) (with Zachary Elkins and James Melton), which won the best book award from Comparative Democratization Section of American Political Science Association; and Judicial Review in New Democracies (2003), winner of the C. Herman Pritchett Award. He is a member of the American Academy of Arts and Sciences. Before entering law teaching, he served as a legal advisor at the Iran-U.S. Claims Tribunal, The Hague, Netherlands, and he has consulted with numerous international development agencies and governments on legal and constitutional reform. He currently serves a senior advisor on Constitution Building to International IDEA.
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 highly legalistic way, empowering courts against other state and Party entities, insisting on legal professionalism, and bringing political powers 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, which show that, even if China is indeed deepening its dictatorship, it is nonetheless doing so through harnessing the organizational and legitimizing capacities of law, rather than circumventing it.
We argue that both top-down political considerations and bottom-up social demand 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 size of the country 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 law 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 popular political legitimacy.