Cage for the Birds: On the Social Transformation of Chinese Law, 1999–2019

In his book on legal reform in China after Mao, Stanley B. Lubman adopted the metaphor “bird in a cage” to describe the status of Chinese law at the turn of the twenty-first century. This article offers some general reflections on the social transformation of Chinese law since 1999, with the objective of explaining (1) how the legal bird has become a cage, and (2) how this new legal cage has been used to trap birds in Chinese society. It first traces the transformation of the legal bird into a cage in China’s reform era and then tells the stories of four species of birds currently confined in the legal cage, namely, hawks (state officials), crows (rights activists), sparrows (netizens), and ostriches (ordinary citizens). Laws related to the four species are concerned with combating corruption, political stability, internet control, and everyday life, respectively. By focusing on the four species of birds in the legal cage, this article offers a fresh understanding of how law interacts with various individuals and social groups in Chinese society and a sociolegal explanation of the social transformation of China’s legal system from 1999 to 2019.

With or Without You: Qing, Li, Fa, and Legal Pluralism in China

The concept of legal pluralism was introduced to China in the mid-1990s to address the conflict between state law and local norms and customs. More than two decades after its introduction, the scope of legal pluralism in China has shifted to the coexistence and interaction between state law and nonstate orders. In this article, I review theoretical discussions and empirical studies on legal pluralism in China. The existing studies on legal pluralism focus mostly on rural villages, which marginalizes the lived experience of urban residents who are also caught in China’s rapid legal transplantation in recent decades. At the same time, law and society scholars who study labor dispute resolution in urban China tend to frame the questions as legal mobilization, rather than legal pluralism. The term qingli 情理[commonsense feelings of justice] is a common theme underlying the scholarship of legal pluralism and legal mobilization in China, and thus it has the potential to bring them together and bridge the findings of the two bodies of scholarship. This article contributes to the literature on Chinese law and society by demonstrating the role that qingli plays in bridging different areas of sociolegal studies.

Land Dispossession and Women’s Rights Contention in Rural China

Taking the latest round of lawmaking in China as a point of departure, this article provides an in-depth examination of women’s land rights on paper and their dispossession of land in reality. To explain the gap between the two, I draw on the extant literature as well as my field research in southwestern China to illustrate the mechanisms responsible for unequal access to farmland between women and men. In illuminating these mechanisms, this article unpacks how, over the past four decades, the combination of ostensibly gender-neutral state policies, seemingly progressive legislation, and ingrained cultural prescriptions and practices has produced profoundly gendered disparities in land use. If state policies and legislation are indeed part of the problem, they must be part of the solution. Decisionmakers at the commanding heights, however, have showed little will to effect sweeping changes aimed at safeguarding women’s access to land. Instead, they have opted for piecemeal, fragmented, and localized measures in the hope of chipping away at gender inequality in land possession and management. These tepid measures will have grave implications for women’s land use and rights contention in the years to come.

Jia, as in Guojia: building the Chinese Family into a Filial Nationalist Project

The Chinese state acts in concert with the patriarchal family to sustain its authoritarian legitimacy, and both institutions are grounded in paternalistic cultural norms. The state also harnesses the “quality” of Chinese families through the law, which often saddles women with more burdens and responsibilities than it does men. From the 1950 Marriage Law to the 2015 Universal Two-Child Policy, the state has directly politicized the family through explicit mandates on marriage and reproductive control as well as repressive deployment of families as a tool for social stability and national security. To unpack this state-family project, this article addresses how the patriarchal state constructs and manages a filial nationalist population in order to secure its authoritarian rule. Through the lens of emerging Chinese feminist and queer scholarship on families, this article also asks how the state-family project has affected people and families that are intersectionally marginalized by gender, sexuality, class, household registration [hukou 户口], and so on. Lastly, this article spotlights new developments in feminist and lgbtq movements as they advocate for marginalized individuals and families.

Many Voices in China’s Legal Profession: Plural Meanings of Weiquan

Figuring prominently in prevailing portraits of activism and political contention in contemporary China are weiquan [rights defense] lawyers. Outside of China, the word weiquan emerged in the early 2000s and had achieved near-hegemonic status by the late 2000s as a descriptive label for a corps of activist lawyers—who numbered between several dozen and several hundred—committed to the cause and mobilizing in pursuit of human rights protections vis-à-vis China’s authoritarian party-state. This article challenges the dominant nomenclature of Chinese activism, in which weiquan in general and weiquan lawyers in particular loom large. A semantic history of the word weiquan, traced through an analysis of four decades of officially sanctioned rights discourse, reveals its politically legitimate origins in the official lexicon of the party-state. Unique survey data collected in 2009 and 2015 demonstrate that Chinese lawyers generally understood the word in terms of the party-state’s official language of rights, disseminated through its ongoing public legal education campaign. Because the officially-sanctioned meaning of weiquan, namely “to protect citizens’ lawful rights and interests,” is consistent with the essential professional responsibility of lawyers, fully half of a sample of almost 1,000 practicing lawyers from across China self-identified as weiquan lawyers. Such a massive population of self-identified weiquan lawyers—approximately 80,000 in 2009 assuming that the sample is at least reasonably representative—makes sense only if local meanings of the term profoundly diverge from its dominant English-language representations. Concluding speculations consider and call for further research on why this word was appropriated and redefined by activist Chinese lawyers in the first place.

The Rule of Law in Party Documents

This article reviews the development of three important themes in the Chinese Communist Party’s (ccp’s) description of the rule of law since China’s opening up and reform began in December 1978. It expands upon key Party documents that frame the meaning of the rule of law in ccp doctrine. It sets out the doctrine, identifies significant changes, and considers what they might mean for the Party’s present stance toward law and legal construction. It builds upon a broad literature that explores those documents and that doctrine, focusing on three connected points of tension in the Party’s articulation: the relationship between rule of law and rule by law, the relationship between the rule of law and Party leadership, and the relationship between the rule of law and Party discipline.

Governing the “Constitutional Vacuum” – Federalism, Rule of Law, and Politburo Politics in China

By focusing on the underlit corners of authoritarian governance in China, this article challenges the thesis that constitutions matter to authoritarian regimes because they provide solutions for problems of governance. We argue to the contrary: the constitution appeals to the Chinese Communist Party (the Party or the ccp) because it does not provide solutions to fundamental issues of governance. Instead, such issues are kept out of the constitution so that they can be addressed by the Party through other regulatory mechanisms outside of the constitutional realm. In support of our thesis, we provide a unique review of the most up-to-date authoritative research on three key constitutional issues: central-local relations, party-state relations and power relations in the Politburo. These three issues correspond to three distinctive fields in China studies that were treated only in isolation but here we consider them together under the single framework of authoritarian constitutional governance.

Punishing Polluters: Trends, Local Practice, and Influences, and Their Implications for Administrative Law Enforcement in China

Scholars and politicians often complain about how weak administrative law enforcement is in China. To better understand the challenges in law enforcement, as well as variation in actual practices and influences on such practices, the current paper analyzes Chinese pollution law enforcement data from the last two decades as well as in depth qualitative case studies of everyday enforcement practices. It finds that recently enforcement has become much more frequent and stricter. It finds that recent changes in national legislation, centralization reforms, increased citizen complaints, as well as enforcement campaigns all played a role in this. While this has helped strengthen enforcement, and maybe has played a part in recent pollution reductions, it has not fundamentally overcome structural enforcement impediments. The increased authority, independence, and pressure on environmental authorities for stricter enforcement, does not seem to be matched with sufficient investment in resource capacity and support for regular procedural enforcement practices. In addition, the ad-hoc pressure on enforcement has undermined regular legal procedure and stimulated greater socio-economic inequality. These findings about pollution enforcement force us to question simplistic static generalizations of administrative law enforcement and instead develop both large-scale studies that map change over time as well as in-depth case studies that provide a thorough picture of actual practices on the ground. Moreover, the paper concludes that a true picture of administrative enforcement must move beyond looking at the enforcement itself, to looking at how it arrives at the regulated companies and shapes their compliance.

Policing Modern China

The study of policing in China is a small but growing subfield with critical insights for law and society scholars. This article examines the fundamentals of policing, tracing the organization’s history and institutional basics before turning to a review of the emerging literature. Scholars have made headway analyzing topics like policing practices, social control, public relations, and police perspectives, but there is still much work to be done. Partly because research on the police faces methodological challenges, the literature is uneven, leaving gaps in our knowledge about key issues such as police corruption, regional variation, and the relationship between police and private security groups. By outlining what we do and do not know about policing in China, this article parses the field’s best answers to questions of how police officers and the Public Security Bureau enforce state mandates and respond to challenges on the ground.