China’s Legal System

Introduction

The Chinese government’s sudden detainment of the famous lawyer Xu Zhiyong in July 2009 sent shock waves through the international community and rattled lawyers and scholars invested in China’s evolving legal system. Dr. Xu, a lawyer and activist renowned for his work on behalf of China’s most disadvantaged and his commitment to advancing the rule of law in China, was hardly a legal gadfly out to provoke the Chinese Communist Party (CCP) or challenge one-party rule. Quite the contrary, he had a clear record of support for incremental reform, both in his litigation that aimed at the enforcement of guarantees already enumerated in the Chinese constitution, and because he had run for and won a seat in his local People’s Congress in Beijing’s Haidian District (one of a handful of contested elections nationwide). He was also roundly considered to be a man of strong ideals and impeccable integrity, and this sterling reputation made the grounds of his formal arrest, “suspicion of evading taxes,” very difficult to swallow.

What can Xu Zhiyong’s experience tell us about the state of legal reform in China? In the first instance, it is a blunt reminder that “rule by law” in China (or put less charitably, “rule of man”) has yet to evolve into substantive rule of law. It is also a stern admonition to the country’s expanding lawyerly ranks: steer clear of politically sensitive cases, the kind that Xu and other “rights protection lawyers” (weiquan lüshi) find alluring, or face the wrath of the state. That lawyers and activists are sensitive to this kind of overt political pressure underscores the uneven development of China’s legal system and its continued subordination to the whims of powerful political actors.

This pessimistic view, however, overlooks other more encouraging trends in Chinese legal reform. Indeed, the mere fact that Chinese authorities felt the need to foist a façade of legality upon Xu’s case suggests the extent to which legal norms have already permeated Chinese society. After listening to their leaders stress the importance of law and order for thirty years, the Chinese public has come to expect, at the very least, a thin patina of legal reasoning to justify state actions. Moreover, while Xu’s prosecution is certainly a striking, if altogether too familiar, instance of an authoritarian state arbitrarily wielding extralegal power, it is taking place against a backdrop of decades of slow but steady improvements to the legal system. In addition to the gradual accumulation of workaday laws and enforcement procedures, a mundane but important process in its own right, four key trends bode well for the future of China’s legal system: the steady accumulation of China’s body of laws, the blistering growth of the legal profession in general, its increasing economic autonomy and sense of professionalism, and the rapidly rising number of Chinese political elites, including some senior CCP leaders, who received their academic training in law.