Technology is racing ahead. And the music you hear fills you with dread—Is it really the voice you know, or just an AI putting on a show? AI songs stand at the crossroads of innovation and controversy. Recently, AI-generated songs that clone the real voices of celebrities have sparked intense debate globally. In China, songs mimicking famous Chinese singer Stefanie Sun’s voice have become particularly controversial. Fans create tracks in her style, despite her never having sung them, and share these on social media platforms without her consent. A popular tool for this is “SO-VITS-SVC,” an open-source program that can clone celebrity voices, enabling anyone to create an AI model that can “sing” in the trained voice.
Against this backdrop, the article first examines whether current Chinese law is resilient enough to adapt to new technology in granting celebrities control rights over these AI songs. In many jurisdictions, a person’s voice is seen as part of their identity and deserves protection. In China, it is widely accepted that a person’s unique voice is part of their identity, which entails certain personality interests, especially those related to dignity. However, scholars disagree on whether the law should give a separate right to voice or just recognize the personality interests connected to it. The PRC Civil Code, promulgated in 2020, took a small step in protecting individuals’ voices by acknowledging personality interests in unique voices, rather than creating a separate right to voice. This distinction between standalone rights and recognized personality interests is significant under the Chinese civil law system, as rights typically receive more systematic and extensive protection than personality interests. By interpreting the Civil Code, this article concludes that it is feasible to construe the relevant provisions in a way that grants celebrities control rights over AI songs.
However, apart from conducting doctrinal and descriptive analysis, this article delves into the larger theoretical question of whether at all and when celebrities should be allowed to control these AI songs. Should we adopt a strict interpretation of the Civil Code which is clearly favourable to celebrities? I draw on several theories, including incentive rationale, economic efficiency, labor theory, individual liberty and dignity interests, consumer welfare, and dilution theory, to answer the question. Most of these theories do not offer justification for celebrities to fully control AI songs created on the basis of their works. For example, while utilitarianism provides reasons for allowing individuals to control their own voices, doubts remain as to whether identity holders should receive all the benefits derived from their voices. Labor theory acknowledges the contribution of voice holders to AI songs but also emphasizes the contributions of other market participants, making absolute control questionable. Consumer protection is one potential justification for celebrities to control their voices in AI songs, as it could prevent confusion over the authenticity of the song on the part of the consumers. However, confusion is not typically an issue in the AI songs context, and there are more direct ways to address any potential ambiguity over a song’s creator. Some scholars invoke dilution theory to justify control rights over AI songs, arguing that it prevents weakening the association between celebrities and their voices. Yet, this article doubts whether such dilution by AI songs actually occurs in practice. Ultimately, the only plausible justification lies in dignitary interests, which may support a creator’s limited but not absolute control over AI songs.
None of these theories provides strong reasons to interpret the relevant provisions of the PRC Civil Code in the manner that is strongly favourable to the artists, as is the result of mere doctrinal analysis shown above. In China, where laws focus on dignitary interests, policymakers might naturally want to expand personality rights. However, while it is important to consider these dignitary interests of artists, the reference to other theories can help balance the many different interests involved. It is recommended that policymakers consider all these theories instead of just focusing on one or two.
Building on the doctrinal view and the discussion of relevant theories, this article then puts forward a short proposal for policymakers to serve as initiation for debates on future legislation. First, a general right to control AI songs is recommended to protect individual dignity and liberty of artists. Second, while decision-makers may be inclined to grant broad control rights as a way to reward the invested labor on the part of artists, they should also consider the contributions of other participants and design more balanced, qualified rights. Third, to prevent consumer confusion over the authenticity of songs, policymakers can implement more direct measures, such as requiring platforms or content uploaders to display clear indications for AI-generated products, rather than establishing new control rights. Finally, any general right to control AI songs based on dignitary interests should also take the public interest into account, incorporating exceptions for selected situations. Building on these insights, the article further proposes specific reform suggestions for the PRC Civil Code.
The question of whether celebrities should have rights to control AI songs is just one of many challenges policymakers face regarding personality rights in the new technological age. This article warns against the trend of sloppily broadening the scope of personality rights in China as a solution whenever there are issues arising from new technology. It recommends decision-makers to consider different theories and ideas when addressing new legal and technological issues to form a more balanced solution.
The paper “Is Chinese Law Well-Prepared for AI Songs? A Note of Caution on the Over-Expansion of Personality Rights” is published in the Cardozo Arts & Entertainment Law Journal Vol. 42(2), 2024 (SSRN draft available here). The author thanks Kaijing XU, a JD student at CityU School of Law, for the research assistance in preparing this post. Yang Chen is an assistant professor at the City University of Hong Kong. He has received an LL.B from China University of Political Science and Law, an LL.M from London School of Economics, and another LL.M and SJD from the University of Pennsylvania Carey Law School. Yang works primarily in the areas of intellectual property law, with a keen interest in particularly trade secrets law and right of publicity. He also researches trademark law and copyright law. His works have appeared in several journals such as the Columbia Journal of Law and the Arts, the University of Pittsburgh Law Review, and the University of Pennsylvania Journal of Business Law.
This paper explores the significant yet often overlooked role of local courts in shaping public policy, particularly within the context of China’s rapidly evolving economic landscape. While much of the existing literature on courts activity in policy making has focused on the Constitutional Court and the Supreme Court—highlighting their top-down influence through constitutional and legal interpretations—our study shifts the focus to the bottom-up contributions of local courts.
We propose that local courts function as “policy information discoverers” in the policy making process. Acting as passive recipients of a wide range of practical disputes, local courts engage deeply with evidence-based information during their daily operations. This engagement allows them to gather information on recurring issues in society and communicate critical insights to policymakers. The role of local courts becomes increasingly significant in today’s context of rapid economic and social change driven by the fast-paced evolution of digital technologies and emerging industries. These dynamics often leave governments struggling to comprehensively obtain information necessary for effective decision-making.
Our paper identifies three key mechanisms through which local courts uncover valuable policy information: collecting, scanning, and extracting.
Collecting: Local courts serve as platforms for diverse voices, providing accessible dispute resolution avenues for individuals and groups that might otherwise struggle to participate in the policymaking process. This inclusivity helps foster a more balanced and informed policy environment.
Scanning: The extensive trial activities conducted by local courts position them as vital information scanners. Insights gained from extreme or landmark cases can assist policymakers in understanding the boundaries and implications of public policy, particularly in complex and evolving areas.
Extracting: Through the rigorous examination of opposing claims and evidence-based trials, local courts can distill potential policy alternatives. This extraction process enables a more nuanced understanding of policy challenges and opportunities.
To illustrate these mechanisms, we analyze six cases adjudicated by local courts in China, focusing on emerging industries. These cases address crucial public policy issues such as platform liability, privacy protection, and data ownership, each of which presents distinct information challenges, including biased information sources, unclear identification boundaries, and a lack of feasible alternatives. Our data sources encompass court decisions and interviews conducted from July 2020 to January 2021 with a range of stakeholders, including three legislators, 14 judges, and 11 government officials.
By highlighting the role of local courts as active participants in the policy information landscape, our study aims to provide a more comprehensive understanding of the intricate dynamics between judicial actions and public policy formulation in China. This perspective not only enriches the existing literature but also underscores the importance of local judicial systems in addressing contemporary policy challenges.
The paper titled “The Court as a Policy Information Discoverer: Evidence from China’s Emerging Industries” was published in China Law and Society Review, 2024. Tianhao Chen is an associate professor at the School of Public Policy and Management at Tsinghua University, specializing in public administration and law, administrative law, public contract law, judicial governance, and technology ethics. His research has been published in esteemed journals such as The China Quarterly, The American Review of Public Administration, China Law & Society Review, and the Chinese Journal of Law (法学研究). He can be reached at chentianhao@mail.tsinghua.edu.cn.
Wei Xu is a PhD candidate at the School of Public Policy and Management at Tsinghua University, focusing on platform regulation, judicial governance, public administration and law. Her work has appeared in notable publications, including The China Quarterly, The American Review of Public Administration, and China Law & Society Review. Her email is xuw20@mails.tsinghua.edu.cn.
Jing Zhao (corresponding author) is an associate professor at the School of Public Policy and Management at Tsinghua University. Her research interests include policy process theory, new economic governance and industrial policy, as well as environmental governance and regulatory practices. Her work has been featured in journals such as Public Administration, Policy Studies Journal, and the Social Science in China (中国社会科学). She can be contacted at jingzhao09@tsinghua.edu.cn.
Guohua Hu (left) being interviewed after filing the first-ever patent in China on April 1st 1985, the first day the patent law went into force.
Recently, Chinese courts have played an increasingly significant role in global patent litigation, particularly in disputes involving standard essential patents (SEPs). Standard essential patents are patents on technologies that are essential to the implementation of a particular industry standard. This trend has been marked by the issuance of anti-suit injunctions, a legal mechanism that has become an important tool for preventing parties from initiating or continuing litigation in other jurisdictions. The Supreme People’s Court’s (SPC) decision in Huawei v. Conversant marked the first SEP-related anti-suit injunction in China and set the stage for lower courts to follow suit, especially in the fields of information and communication technology.
In China, the concept of anti-suit injunction has been integrated into the legal framework through “act preservation measures.” In the Chinese context, anti-suit injunctions have been applied under various legal provisions, including the Patent Law and the Civil Procedure Law. These laws enable courts to issue “act preservation measures” 行为保全措施 to halt alleged IP infringements until relevant disputes are resolved. In its 2018 guidance, the SPC outlined several factors courts should consider when handling requests for “act preservation measures”, including balancing potential damages to the applicant and the public interest.
The study reveals significant differences between the Chinese approach to anti-suit injunctions and that of common law jurisdictions. In common law systems like the US and the UK, anti-suit injunctions primarily aim at protecting the forum and preventing vexatious or oppressive litigation. In these jurisdictions, the courts are expected to evaluate the necessity of issuing an anti-suit injunction based on factors such as the suitability of forum and international comity considerations. In contrast, Chinese courts focus on the legitimacy of the applicant’s claims and the potential harm to parties’ rights and interests. This approach, while aiming to provide protection for applicants, might overlook broader considerations like preventing conflicting judgments or ensuring consistency in cross-border legal procedures.
The issuance of anti-suit injunctions by Chinese courts has evolved from initial restraint to a more assertive stance, reflecting China’s ambitions in the global IP landscape. Notably, the SPC’s decision in Huawei v. Conversant and subsequent cases have expanded the scope of anti-suit injunctions, both geographically and materially. For example, in Oppo v. Sharp, the court prohibited Sharp from initiating any new lawsuits or requesting injunctions in other jurisdictions against Oppo while proceedings in China were pending. This represents a significant expansion from suspending the enforcement of specific judgments to preventing future litigation across multiple jurisdictions. The evolution of anti-suit injunctions in China is also marked by vague procedural safeguards and criteria for issuance. In Huawei v. Conversant, the SPC introduced conditions for issuing anti-suit injunctions, such as the potential obstruction of domestic proceedings, irreparable harm to the applicant, and the balance of parties’ interests. These conditions have been further refined in the subsequent cases Xiaomi v. InterDigitaland Samsung v. Ericsson.
The study further explores potential restraints on the issuance of anti-suit injunctions by Chinese courts, including international comity and public interest. In the Huawei v. Conversant decision, the SPC highlighted three key factors for comity consideration: the sequence in which cases are accepted, the suitability of the reviewing court’s jurisdiction, and the effect on foreign legal proceedings. Generally, the Civil Procedure Law, which addresses both domestic and foreign jurisdictional conflicts, allows for parallel litigation. In the Oppo v. Sharp case, the SPC indicated that the sequence of case acceptance would likely not prevent the issuance of anti-suit injunctions in China. Besides, the SPC established broad jurisdiction in SEP disputes, making it difficult to deny anti-suit injunctions based on forum non conveniens (the common law legal doctrine through which a court acknowledges that another forum is a more appropriate venue for a legal case, and transfers the case). Meeting the six cumulative conditions required for forum non conveniens is challenging, especially in cases involving Chinese companies. The court decisions following Huawei v. Conversant frequently omit references to the impact on foreign proceedings in the comity assessment, focusing instead on the relationship between the dispute and foreign jurisdiction to argue against undue interference.
The study reveals a shift in Chinese courts’ approach to anti-suit injunctions, moving from tolerating anti-suit injunctions issued by foreign courts to proactively using them to assert their own jurisdiction in SEP disputes. Despite acknowledging “international comity” and “public interest” as potential constraints, Chinese courts’ interpretations of these factors are often formalistic and narrow. There are inconsistencies between judicial practice and statutory rules, broad discretion given to the judiciary, and a lack of clear legal basis for comity considerations given the specifics of global SEP licensing.
A new paper by Peter Chi Han Chan and Wanqiang Aiden Wu
The Supreme People’s Procuratorate in Beijing photo by EditQ
In 2020, China’s Supreme People’s Procuratorate (SPP) initiated a transformative reform in the performance evaluation of prosecutors that promises to reshape the legal landscape significantly. For decades, Chinese prosecutors were assessed mainly on the volume of cases they handled by their department leaders, also known as the “Line Appraisal” model. This approach emphasized quantitative metrics, like conviction rates and case closure speed, sometimes even at the expense of thoroughness and the quality of justice. The result was a prosecution system that tended to prioritize quantity over quality, raising concerns about fairness and the effectiveness of the legal process.
Recognizing these limitations, the SPP launched the performance evaluation reform of “Case-Process Ratio 案-件比”. This innovative approach shifts the focus from sheer numbers to a more nuanced evaluation of the prosecutorial process, aiming to reduce unnecessary procedures and improve the overall efficiency and quality of case handling. The “Case-Process Ratio” measures the balance between the number of cases and the procedural steps required, with an ideal ratio indicating that each case is handled with minimal yet sufficient procedural actions to ensure justice.
The “Case-Process Ratio” model introduces several key improvements to the prosecutorial system. By focusing on reducing unnecessary procedures, it encourages prosecutors to streamline their case management, saving time and resources. This change is expected to enhance the efficiency of legal proceedings and reduce the burden on all parties involved. Additionally, by incorporating the perceptions of the involved parties into the evaluation process, the model emphasizes the importance of public trust in the legal system—a crucial factor in maintaining social stability and the rule of law.
This new model deviates from the traditional result-oriented approach of the “Line Appraisal” model, which focuses mainly on departmental indicators such as conviction rate of the prosecution department and arrest rate of the arrest department. Drawing upon two universal experiences, the “Case-Process Ratio” pioneers a more holistic assessment, taking into account parties’ perceptions of the prosecution process and underscoring the socio-political implications of prosecutorial conduct. This is also an ambitious move for the SPP to gradually evolve from being a mere crime controller to a “social governor”, who clearly enjoys a more integrated jurisdiction and a wider reach in terms of institutional power.
This reform is more than a technical adjustment; it reflects a broader transformation in the role of Chinese prosecutors. Historically, prosecutors in China were seen primarily as crime controllers, focusing on conviction rates and the supervision of legal processes to maintain social order. However, the SPP’s new evaluation model is part of a broader set of reforms aimed at transforming prosecutors into “social governors”—figures who not only enforce the law but also contribute to the governance and well-being of society. This expanded role requires prosecutors to consider the broader social impact of their actions, manage cases in a way that is more attentive to the personal experiences of those under their jurisdiction, and ensure that the legal process is perceived as fair and just by the public.
However, the new model is not without its challenges. One of the most significant concerns is that while the “Case-Process Ratio” model aims to improve procedural quality, it may still inadvertently reinforce the prosecutor’s traditional role as a crime controller. For instance, the traditional metric of case closure speed has not been eliminated and remains one of the core indicators in the overall evaluation system, albeit less emphasized than before, prosecutors may still feel pressured to close cases quickly, potentially prioritizing speed over quality. The procedural controls introduced by the new model, while designed to ensure fairness and efficiency, could also limit prosecutors’ flexibility, forcing them to adhere to strict guidelines that may not always suit the nuances of individual cases.
On the whole, the “Case-Process Ratio” model is part of a larger wave of legal reforms in China, designed to modernize the prosecutorial system and align it with broader goals of national governance. These reforms include the integration of arrest approval and prosecution powers, the introduction of the plea leniency system, and efforts to enhance the standardization of legal processes. Together, these changes aim to create a more cohesive and effective legal system that can better respond to societal needs.
As China’s legal system continues to evolve, the “Case-Process Ratio” model represents a significant step forward in the quest for a more efficient, just, and socially responsive prosecutorial system. Its success will depend on how well it can balance the need for procedural integrity with the broader goals of legal and social governance. The shift from a caseload-driven model to one that prioritizes procedural quality marks a turning point in the role of prosecutors in China. It signals a move towards a more holistic approach to justice—one that recognizes the importance of fairness, efficiency, and public trust in the legal system. As this reform unfolds, it will undoubtedly serve as a valuable case study for legal systems worldwide, offering insights into the challenges and opportunities of modernizing prosecutorial practices in a rapidly changing society.
The paper From “Line Appraisal” to “Case-Process Ratio”: Will the New Case Quality Assessment System Facilitate the Changing Role of Chinese Prosecutor? was published in the Hong Kong Law Journal.A free draft is uploaded to SSRN.
Peter C. H. Chan is Associate Professor at the City University of Hong Kong, School of Law where he also serves as the Associate Programme Director of LLMArbDR programme. His publications and contact information can be found on SSRN.
Wanqiang Wu is a PhD candidate at Shanghai Jiao Tong University who is entering the academic job market and is open to employment opportunities. His research focuses on China’s criminal justice system, employing empirical research methods and socio-legal analysis. His publications and contact information can be found on Google Scholar.
The most contested question in the study of Chinese law is also its most enduring one: how should we characterize China’s legal system? In recent years, scholars have advanced a number of new theories that have contributed to our understanding of Chinese law. Few of these papers, however, make explicit the metrics that ought to be used to adjudicate between competing theories of Chinese law. Before we can decide which theory of Chinese law is best, it may help to reflect on what makes a theory of Chinese law good. This essay advances one possible answer to this question, and in so doing, it explains why two recent prevailing approaches to high theorizing about Chinese law are structurally predisposed to certain kinds of theoretical costs and benefits.
While there is no objectively correct theoretical approach to the study of Chinese law, it is fair to say that the dominant paradigm in recent years has been loosely social scientific. At bottom, this means that theories are a collection of assumptions, definitions, and concepts that we use to order complex social phenomena. A primary goal for social science theory is to generate testable propositions that can then be used to refute old theories or refine new ones. This is by no means the only way to theorize about Chinese law, but because most recent works have generally followed this approach, it helps to be explicit about what good social science theories entail. On this question, there is considerable consensus: a good theory is accurate, parsimonious, testable, coherent, precise, generalizable, and generative. There is further consensus on the relationship between these various theoretical virtues. Highly parsimonious theories, for example, tend to be more easily testable, more coherent, and more generative.
From here, it helps to observe two general categories of recent theorizing about Chinese law. The first category I term a kind of “monism” because these theories all share an affinity for employing a single construct to characterize China’s legal system. For example, Donald Clarke’s theory that China’s ostensibly “legal” system is best conceptualized under an “order maintenance” paradigm is monist because it employs order as a unitary analytic construct. So too with respect to the pure “legality” framework advanced by Taisu Zhang and Tom Ginsburg in noting recent judicial and constitutional trends since 2014. The second category of theories, in contrast, is best described as a kind of “pluralism” because these theories do not see a legal system that can be reduced to a single coherent principle; instead, they employ multiple constructs—often competing—to better capture Chinese law’s social complexity. The most well-known of these theories is legal dualism, inspired by Ernst Fraenkel’s book on Nazi Germany, that see China’s legal system as consisting of a rule-bound normative state and a discretionary prerogative state.
A largely unnoticed feature of recent theoretical debates is that monist and pluralist theories are structurally advantaged and disadvantaged in predictable ways. In the essay, I review a number of recent theoretical contributions in the light of basic insights from social science theorizing to make these analytic costs and benefits more explicit. Monist theories, I argue, tend to be more parsimonious, and therefore more coherent, falsifiable, and more provocative than other theories, and thus more generative overall. Monist theories also have a strong heuristic and prismatic usefulness, which facilitates efficient communication and creative re-interpretation of known data. But due to their inherent economy, monist theories about legal systems are often more limited in their explanatory breadth and depth; as a class, they cannot account for as much of what is studied as pluralistic theories; nor can they provide as detailed a portrait of causes, mechanisms, and patterns as theories that employ multiple parameters. Indeed, there is a sense in which monism’s disadvantages have become only starker in recent years, as China’s legal system has grown significantly more complex.
The contributions in this essay are ultimately quite modest. I do not come out in favor of one approach over the other. But I do hope a more explicit discussion of theoretical virtues and tradeoffs can improve the theoretical rigor of current debates, clarify points in which scholars may be arguing past one another, and help us better appreciate what we are predisposed to see, and to miss, at various stages of conceptual design.
The paper “High Theory in Chinese Law” is forthcoming in the Texas Law Review, Journal Vol. 103, 2024 (free draft available at SSRN).
Mark Jia is Associate Professor of Law at the Georgetown University Law Center and a Faculty Scholar with its Center for Asian Law. He specializes in comparative and transnational law, with a focus on China and the United States. His scholarship has been or will be published in the University of Chicago Law Review, the New York University Law Review, the University of Pennsylvania Law Review, and the Texas Law Review. He was previously a law clerk on the U.S. Supreme Court.
Commercial arbitration has become the major dispute resolution venue for Chinese companies doing business abroad as well as for foreign enterprises in China. According to a 2022 survey carried out by CIETAC, 70% of the surveyed Chinese companies include arbitration clauses in their contracts with foreign counterparts, while 86% indicated their preference for out-of-court settlement of commercial disputes arising out of their overseas business activities. The nation’s highest court, the Supreme People’s Court (SPC), also supports and promotes commercial arbitration. In its 2015 Opinions on providing judicial services and safeguards for the construction of the Belt and Road Initiative (BRI), the SPC called upon people’s courts to “support the resolution of disputes by the Chinese and foreign parties through mediation, arbitration, and other non-litigation forms” as well as to “accurately comprehend and apply the New York Convention” when faced with requests for recognition and enforcement of foreign arbitral awards in China.
What if, however, a contract containing an arbitration clause also contains provisions that may be contrary to the Anti-Monopoly Law (AML), as they may implement anti-competitive agreements or abuse of market dominance? Can a determination regarding compliance or non-compliance with AML be determined by the arbitrator(s) in the context of arbitration proceedings prompted by a contract-related dispute? The Chinese lawyers frequently caution that there is no consensus as to the arbitrability of AML-related issues, and the parties should be prepared for a stand-off in court even if their contract contains an arbitration clause. Furthermore, there are observable traces of a litigation strategy to intentionally stall or delay arbitration proceedings by launching AML-based claims before a court and calling it to declare the respective contract invalid.
This discussion is quite timely, as China is in the process of revising its Arbitration Law in a bid to improve the credibility of the country’s arbitration system. Currently, competition law issues do not feature among either arbitrable or non-arbitrable matters listed in Arbitration Law. The 2021 draft amendments released by the Ministry of Justice in 2021 provided for the possibility to expand the range of arbitrable matters through other laws by adding the following provision: “Where the law provides that a party may institute civil proceedings in a people’s court, without clearly stating that the matter involved is not arbitrable, the arbitration agreement concluded by the parties which complies with the provisions of this [Arbitration] Law shall be valid”.
As the legislators discussed the possibility of expanding the list of arbitrable matters by adding investment, intellectual property, and anti-monopoly disputes, the Supreme People’s Court (SPC) moved in the opposite direction by stipulating that “if the plaintiff files a civil lawsuit in a people’s court in accordance with the Anti-Monopoly Law, and the defendant raises an objection on the grounds that there is a contractual relationship between the two parties and that an arbitration agreement has been established, it will not affect the acceptance of the civil monopoly dispute case by the people’s court” (2022 draft amendments to the 2012 Provisions on civil anti-monopoly disputes). Under these circumstances, the courts have developed an inconsistent judicial practice featuring divergent approaches towards the arbitrability of AML-related matters. The cases analyzed for the purposes of the present study revealed various factors affecting courts’ assessments of the scope of arbitration agreements and parties’ invocation of AML infringements in contractual disputes.
To address the aforementioned inconsistencies in judicial interpretations, enhance compliance with and private enforcement of AML, and encourage the alignment of China’s arbitration system with those of its major trading partners where arbitrability of competition matters is well recognized, the paper advances a call for conditional arbitrability of antitrust-related contractual disputes. First, it proposes to reflect the increased significance of AML in the amendments to the Arbitration Law by affirming the arbitrability of contractual disputes involving AML matters. Second, the paper calls upon the SPC to provide detailed guidance on substantive and procedural aspects to guide the courts in cases where AML-related questions arise in the context of contractual disputes covered by arbitration agreements. Third, the Arbitration Law should preserve the centralized system of judicial review concerning requests for setting aside or refusing recognition/enforcement of arbitral awards on public policy grounds. The proposal echoes the statement of the SPC Vice President, judge Tao Kaiyuan, who acknowledged in 2022 that “anti-monopoly disputes can be included in the scope of arbitration, but they should be treated in a classified manner, and only civil and commercial disputes should be submitted to arbitration”.
Life is complicated. Theory is simple: democracy is good and authoritarianism is bad. What is more, democracy in a robust sense requires a foundation based on the rule of law. Authoritarian regimes too may have law; however, instead of being constrained by it they rely on it only for instrumental purposes.
These statements seem commonsensical and just like everyone else, I too agree with them. There is a problem, however. It is the strictly binary way in which they are constructed. To stay that democracy is preferable to authoritarianism is not an especially illuminating statement. First of all, neither term is self-defining. To start with, whenever we are talking about modern centralized states, we are always dealing with some kind of representative democracy. However, every form representative democracy entails necessarily some kind of distortion, with some people winning and other people losing. One Senator cannot literally “represent” the views of 20 million people, even if we put aside the problem of legalized corruption known as campaign finance. There is no pure democracy as such—except maybe a direct democracy on the model of the Athenian polis, and even there the people who were the loudest, tallest, and the sweetest talkers—let us call them demagogues—had a disproportionate influence (not to mention the wholesale exclusion of women and slaves).
Second, while democracy is, by definition, superior to authoritarianism, that does not mean that there could not be other worthwhile ways of organizing politics. Democracy, for all its potential, has serious limitations as well. At least in its electoral form, it is not well-equipped to address questions of intergenerational justice (the unborn do not vote), nor to attend to the relationship between humans and their environment (trees have no standing, as Christopher Stone famously said)—the most fundamental relationship of all, as we find ourselves careening toward environmental collapse.
Put differently, democracy is ultimately a historical category, not the transcendental telos of all politics, and it can take dramatically different forms. Accordingly, it can work relatively well or not, depending on historical, social, and political circumstances. In its contemporary manifestations, it is very difficult to separate democracy from the histories of nationalism and capitalism, most notably. When we talk about democracy today, we are usually referring to a political union between some kind of liberal democracy and some form of capitalism—a system where elections function more or less as a giant calculator whose main task is to aggregate individual preferences.
Whatever the virtues and the limits of this brand of democracy may be, what troubles is me that especially after the end of the Cold War this particular understanding of democracy been universalized. It has become essentially a religion, and a rather jealous one: a monotheistic faith that does not recognize any valid alternative. It has become a missionary project that aims at nothing less than the standardization of political forms and political subjectivities on a global scale.
In a recent article, I use Shucheng Wang’s excellent book Law as an Instrument: Sources of Chinese Law for Authoritarian Legality as a point of departure for reconsidering the conventional opposition between liberal and authoritarian forms of legality. I argue that this opposition is in turn embedded in an even more elemental distinction between different state forms. Turning to Montesquieu’s The Spirit of the Laws, I first investigate the historical and geopolitical processes by which modern political theory reduced the political universe into three species of states (republics, monarchies, and despotisms) and then merely two (democratic and authoritarian states). Next, I turn to the contemporary genealogy of the concept of rule of law, which arose first as a critique of the rise of the administrative state in the West and then became a means to delegitimize socialist conceptions of legality. Finally, I conclude by focusing on the People’s Republic of China to evaluate the utility of assessing its legal order in terms of authoritarian legality as well as in terms of democracy more generally.
We should most certainly continue to improve existing democratic institutions, but we should not allow ourselves to be completely dazzled by democracy, whether as a political idea or a political practice. It must not foreclose our ability to imagine other kinds of politics and other kinds of institutions. A constitutional democracy is one way of coordinating life among humans, but it cannot be the only, or final, form of politics, especially in an age where our most urgent and intractable problems are global. Insofar as we are looking for non-liberal forms of justice and politics, maybe—just maybe—the historical experience of China can help us imagine alternatives, especially as the limits of electoral democracy are being tested today all around the world.
Teemu Ruskola is Professor of Law & Professor of East Asian Languages and Civilisations at the University Pennsylvania. He is an interdisciplinary legal scholar whose work addresses questions of legal history and theory from multiple perspectives, comparative as well as international, frequently with China as a vantage point. Ruskola is the author of Legal Orientalism: China, the United States, and Modern Law (Harvard University Press, 2013), co-author of Schlesinger’s Comparative Law (Foundation Press, 2009), and author of numerous contributions to law reviews, from the American Journal of Comparative Law to the Yale Law Journal. He is also co-editor (with David L. Eng and Shuang Shen) of a special double issue of the journal Social Text on “China and the Human.”
On April 16th this year, a group of 20 leading scholars and experts, as part of a government-funded research project under the China Academy for Social Sciences, released a draft for an Artificial Intelligence Law. The draft law alongside translations into English, French, and Spanish can be found here. A first version was published mid-2023 (and commented on by experts here). Expert law drafts like these are typically first steps towards legislative action, however, the degree to which legislators choose to rely on and work with expert drafts has varied in the past. We talked to the drafters about the thinking behind making a law on the possibly most complex and consequential subject of our decade – artificial intelligence.
Is there a need for an Artificial Intelligence Law in China?
China now needs legislation specifically for artificial intelligence (AI). AI has the potential to significantly enhance productivity by empowering various industries and creating production methods and business models that were previously unimaginable. However, it also poses disruptive threats, such as the recent development of generative AI, which allows individuals to easily generate complex images or even videos through natural language interaction. This clearly exacerbates issues such as misinformation and polarisation online. Additionally, the increasing demand for training data and computing power by AI raises concerns about intellectual property protection and fair resource allocation.
Therefore, there is a need for dedicated legislation to both promote the development of AI, maximising its benefits, and mitigate its threats. Such legislation would establish institutional arrangements at a macro level to stabilise expectations from the government, market, society, and other stakeholders.
In fact, as early as May 2023, the State Council of China released the “Legislative Work Plan of the State Council for 2023,” which proposed the preparation of a draft AI law for review by the Standing Committee of the National People’s Congress. In response, in its Legislative Plan released in September 2023, the Standing Committee indicated that it will “promote scientific and technological innovation and the healthy development of AI, improve the legal system concerning foreign affairs, and formulate, revise, repeal, and interpret relevant laws, or make relevant decisions as needed by the National People’s Congress and its Standing Committee.”
What are the main societal issues this law addresses?
The overall approach is to both promote the development of the AI industry and address its potential negative impacts.
(1) The issue of how the artificial intelligence industry should develop:
To address the development of AI, it is necessary to formulate specialized development plans, proactively establish computing power infrastructure, design personal information protection systems compatible with AI development, and take measures to encourage more data to be utilized in AI training. Additionally, legislation should encourage universities to cultivate specialized AI talents, require all levels of government to allocate specific portions of the budget to support AI development, and establish special tax incentives for AI research and development providers. In particular, we encourage the establishment of AI special zones at the national level, where these zones can enact specialized legislation authorized by the National People’s Congress, even in the presence of flexible provisions regarding national legislation.
(2) The potential negative impacts of artificial intelligence technology:
This includes concerns regarding the security of AI usage and how AI can be understood by its users. It also involves efforts to prevent AI from discriminating against individuals and causing other potential ethical harms.
Who is the drafting team – did you consult practitioners, officials in regulatory agencies, lawyers or judges in the drafting process?
Our drafting team comprises legal scholars, industry professionals, personnel from international organizations such ISO, and government research institutions [a list of participants can be found in the draft law].
We extensively solicited input from practitioners and maintained constant communication with regulatory authorities. Court rulings were particularly insightful for us, especially in drafting Article 70, which addresses the balance between AI development and intellectual property protection when AI-generated content infringes upon others’ intellectual property rights. This was directly inspired by rulings from the Guangzhou Internet Court regarding disputes triggered by AI-generated content.
What are some of the key principles that appear in this law and why did you include them?
Firstly, in governing AI, we specifically stipulate the principle of coordinated development and security, implementing inclusive and prudent supervision. This draws from our valuable experience in developing emerging industries in our country. The development of emerging industries inherently carries uncertainties, often leading to breakthroughs in existing legal systems. By emphasising the premise of security, we aim to foster more cautious intervention through regulation, thus preserving greater space for the development of emerging industries empowered by AI.
Secondly, concerning the purpose of AI governance, we explicitly define the principle of human-centeredness. Specifically, it aims to “ensure that humans can always supervise and control artificial intelligence, with the ultimate goal of promoting human well-being.” This serves as the anchor value for all regulatory activities.
Thirdly, as an extension of the human-centric principle, we affirm the principles of fairness and equality. This requires that the use of AI must not result in unjust discrimination against specific individuals or organisations. Additionally, it should fully consider the needs of minors, the elderly, and people with disabilities to prevent AI development from exacerbating the digital divide. Furthermore, we emphasise the principles of transparency, interpretability, and accountability, requiring developers to provide explanations of the purpose, principles, and effects of the AI they develop and use. Organisations or individuals involved in the development, provision, and use of AI should also be accountable for its actions.
Finally, human applications of AI must be sustainable, hence we establish the green principle, which mandates the development of energy-efficient and emission-reducing technologies for AI applications.
We see that other nations continuously iterate laws and policies, promote public computing power and data sharing, and establish intellectual property rights systems compatible with AI development. AI regulation necessitates extensive international cooperation as AI concerns the well-being and security of all humanity. Principles of open collaboration and joint formulation of international norms and standards around AI are thus included.
What legal rights and obligations are put on the table, and in how far are they new in China’s overall legal framework?
As users of AI technology, each of us is relatively disadvantaged compared to AI developers and providers. To bridge the power disparity between the two sides, the AI model law prominently emphasises the obligations for AI developers and providers. These include obligations to ensure safety, to manage vulnerabilities, to offer remedial channels and to notify subjects when discovering risks, as well as obligations to establish risk management systems, and to conduct ethical reviews, among others.
We also establish negative list system for the obligations of AI developers and providers. For AI entering the negative list and serving as foundational models, we will further supplement and strengthen these obligations. The negative list, with its contents regularly updated, is laid down by the national AI regulatory authority based on the importance of the AI, as well as the potential harm to national security, public interests, social stability, environmental protection, etc., caused by attacks, tampering, destruction, or illegal theft and utilisation.
How can subjects raise rights violations, what procedures and mechanisms are there? What role can administrative litigation play, are there other, more feasible channels?
According to this question, we can distinguish two types of “subjects.” One type is AI developers and providers. According to Article 72 of the AI model law, if they disagree with administrative acts such as administrative licensing or penalties issued by administrative agencies, they can initiate administrative reconsideration or administrative litigation. The other type includes other subjects, such as AI product users or third parties affected by AI, such as those whose intellectual property rights have been infringed by AI products. For these subjects, if they are dissatisfied with the aforementioned administrative acts and have a direct interest in their own rights, they also have the right to initiate administrative reconsideration or litigation, such as demanding stricter supervision by administrative agencies. Of course, if the rights of these subjects are infringed upon, according to the provisions of Article 70, they can also file civil lawsuits to claim compensation.
It is important to emphasize that promoting AI development is a key objective of this law. Therefore, we have also established a system of compliance and exemption for AI developers and providers. Regarding civil liability, for cases where AI infringes upon others’ intellectual property rights, according to Article 70, as long as the provider of the AI product that infringes upon others’ rights can prove that they have labeled the AI-generated content, notified users through user agreements not to infringe upon others’ intellectual property rights, and established rules for intellectual property protection and a complaint mechanism within their own organization, then the provider may not be held jointly liable with the developer. Regarding administrative liability, if the internal compliance construction of AI developers and providers meets effectiveness standards after assessment, according to Article 75, they may be exempted from punishment or given lenient punishment. Similar provisions apply to criminal liability.
China’s internet regulatory agencies have been issuing regulatory documents related to AI and data in recent years. These regulatory arrangements are exploratory in nature and provide valuable experience for future specialised AI legislation. Our drafting of the AI model law weaves in these regulations. For example, the requirement for marking AI-generated content originates from regulatory documents concerning generative AI issued in 2023.
Compared to existing regulations related to AI, the AI model law is more systematic. If we consider existing AI-related regulatory documents as “patches” where a document is issued to address a specific problem, then the AI model law is akin to a “tailored suit” designed based on the characteristics of AI technology. It aims to provide systematic and structural solutions for AI governance.
What legislation from other countries did you consult, what do you think China’s AI law can learn from laws elsewhere?
We have referenced legislation and regulatory policies related to AI from the United States, the European Union, and the United Kingdom. These countries universally emphasise the threats posed by AI but are simultaneously committed to its vigorous development. Concerning AI threats, issues such as discrimination, misinformation, and intellectual property are widely acknowledged. In terms of regulatory strategies, we have drawn inspiration from the EU’s tiered classification management of AI and its institutional design for AI open-source to some extent.
Legislators globally deal with similar issues when it comes to regulating AI. What contribution can the ideas in this model law bring to the frontiers of AI legislation?
In my opinion, the AI model law primarily demonstrates innovation in both intellectual property protection mechanisms and open-source governance.
Regarding intellectual property protection, Article 10 of the AI model law emphasises the need to protect intellectual property rights in the AI field while also advocating for the development of statutory licensing and fair use systems compatible with AI development. This reflects the balance between rights protection and technological advancement. It authorises the national intellectual property regulatory authority to establish supporting systems, addressing the issue of fair and reasonable distribution of benefits arising from AI technology development. Article 71 further specifies the allocation of civil liability in cases of AI infringement of intellectual property rights. In principle, both AI providers and users should bear joint liability for AI infringement of intellectual property rights. However, the law also establishes conditions for the exemption of liability for AI providers if they 1. appropriately label AI-generated content; 2. notify users through user agreements not to infringe on intellectual property rights; 3. establish intellectual property protection systems, with measures such as warning or punishment for infringement, and 4. establish an intellectual property complaint mechanism. These provisions are to encourage AI providers to make more compliance efforts by reducing legal liability, thus seeking a balance between technological development and rights protection. It is worth noting that this legislative design to some extent draws on the latest judgements of the Guangzhou Internet Court.
Regarding open-source governance, we believe that open-source will benefit the further development of AI technology. Therefore, the law encourages open-sourcing of AI technology as a policy orientation. The state encourages the establishment of open-source development platforms and the setting up of open-source AI foundations. Promoting secure and compliant applications of open-source software projects is recognised as a goal that the law should foster. Specific encouragement policies include Article 21, which encourages governments at all levels and state-owned enterprises to procure open-source AI products that comply with national standards. Article 22 authorises the State Council to establish special tax incentives for open-source AI. Article 59 stipulates that the national AI regulatory authority should develop specific compliance guidelines for open-source AI developers. Article 71 also provides liability exemptions for AI where it provides open-source resources. Specifically, for certain code modules of AI, as long as their functionality and security risks are clearly disclosed, no legal liability will be borne for damages caused by them. For AI itself, as long as the provider can prove that a sufficiently strict governance system is in place and relevant security governance measures are implemented, liability can be mitigated or exempted.
Which state organs are relevant actors in the legal framework you envision?
Given the broad scope of AI governance, we recommend establishing a dedicated national-level AI regulatory agency. Additionally, we suggest setting up corresponding AI regulatory agencies within provincial-level governments and some municipal governments.
How does the path forward look like – what do you hope to achieve by publishing this model law?
This is the second version of an AI model law. We aim to propose a comprehensive legal framework that provides guidance for legislators to advance related legislation, anticipates market and industry development, and seeks to harness the wisdom of scholars from around the world to collectively improve the governance system surrounding AI.
We thank Tianhao Chen from Tsinghua University and the drafting team for sharing their thoughts.
The main entrance of the Supreme People’s Court of China in Beijing Photo by Rneches
How does the Chinese political-legal system operate in the Xi Jinping era? This article published in the China Law and Society Review provides a detailed discussion of the poorly understood operations of the Supreme People’s Court (SPC) including its intricate interactions with central Party and state institutions, against the background of strengthened Party leadership. It provides insights into specific aspects of the Party’s leadership of the judiciary and its implications, usually unseen functions and operations of the SPC, and the link between Party policy, the judiciary, and the development of Chinese law.
I focus on the roles of the SPC in supporting “foreign-related rule of law” as an example of how the work of China’s highest court has evolved in the Xi Jinping New Era to support more robustly major national strategies. The article examines functions of the SPC little explored previously, because some are only partially transparent. I first summarize developments concerning the strengthening of Party leadership over political-legal institutions, because those have a direct and indirect impact on the SPC’s foreign-related judicial work. I highlight the greater focus on the SPC’s leadership’s fulfillment of political obligations and responsibility to the Party leadership. Providing appropriate judicial support for national strategies is an important way in which the SPC as a political-legal institution fulfills its political obligations to the Party leadership.
The SPC functions identified as most important in developing foreign-related rule of law are, first, policy-making and guidance of the lower courts; second, “law-making;” third, case hearing and selection; and fourth, coordinating and cooperating with central Party and state institutions. The characterization of the functions is original to this article. The non-case hearing functions are linked in some way to hearing cases and are ones the SPC has always performed.
In contrast to most apex courts globally, the work of the SPC in supporting “foreign-related rule of law” is more focused on policy-making and influencing legal and judicial policies; providing guidance to the lower courts, what this article describes as “law-making”; and coordinating and cooperating with other central Party and state institutions, rather than making judicial decisions.
First, part of the SPC’s role is to create, amend, and implement judicial policy in response to or in anticipation of the impact of changes in Party and state policy or other social, economic, or legal changes. One of the principal ways in which the SPC publicizes new or amended judicial policy is by issuing judicial policy documents. These documents guide and inform the lower courts about new or readjusted judicial policy and inform related central Party and state institutions about these developments. They also signal to the Party leadership that their initiative is being implemented. In some areas of law, the SPC leads the legal and judicial policy initiative, while in others, it provides its expertise when other institutions take the lead. The policy documents and any typical cases issued in addition to or in lieu of a policy document contain both political and substantive guidance intended to guide lower court judges both in frontline and leadership roles. These documents may not be cited in court judgments or rulings but may have an impact on judicial thinking.
Second, an important but less-understood part of the role of the SPC in contributing to the development of China’s foreign-related legal system is “law-making.” This characterization is meant to convey the SPC’s contribution to legislation described by the SPC as “actively cooperating with foreign-related legislation” (积极配合涉外立法), not as a formal assertion that the SPC makes law. This contribution takes several forms, not all of them formalized in law. The first type is provided by the Legislation Law which authorizes the SPC to submit legislative bills to the National People’s Congress (NPC), and the NPC Standing Committee. The second type is by drafting and issuing judicial interpretations, as authorized by the Organic Law of the People’s Courts and the Legislation Law. The SPC has the authority to issue meeting minutes (conference summaries) and similar documents which have a less certain formal authority but are highly persuasive in practice.
Two other types lack specific legislative authority but are important ways in which the SPC contributes to legislation, particularly foreign-related legislation: providing support to the NPC and the NPC Standing Committee when it drafts legislation; and providing support to the Ministry of Justice and other Party and state institutions when those institutions draft legislation that is eventually submitted to the NPC or the NPC Standing Committee. These two ways combine the SPCs indirect law-making role with its cooperation role. The extent to which the SPC participates in “law-making” in foreign-related matters is not entirely clear because related documents are made public sparingly.
The people’s courts are a highly political professional institution, and a highly professional political institution (人民法院是政治性很强的业务机关，也是业务性很强的政治机关)
Official SPC media channels
Third, the SPC decides some cases involving foreign-related commercial law and issues some cases as guidance, either as guiding or typical cases. It decides some cases relating to arbitration through an administrative procedure, others through retrial or second instance procedures, and others when certain selected SPC judges sit as panels of the China International Commercial Court. Additionally, the SPC issues cases as guiding, or more often typical cases as a form of guidance. The SPC occasionally issues guiding cases but more often issues typical cases to provide political and substantive guidance for the lower courts, sometimes linked to a policy document.
Fourth, one of the unrecognized functions of the SPC is coordination with other central Party and state organs regarding specific legal issues, based on bureaucratic custom. This work is only partially visible. The SPC has coordinated and cooperated with other central Party and state institutions on a broad variety of legal matters for many years, but it appears to be little discussed in English-language literature. The coordination and cooperation take a variety of forms, and which institutions and departments are relevant depends on the matter under consideration. For example, the SPC provides support to the Ministry of Foreign Affairs or other ministries that lead treaty or convention negotiations, such as the Ministry of Commerce.
The article concludes that the SPC’s foreign-related legal expertise, as shown by the Politburo’s November, 2023 collective study session on foreign-related rule of law, has become significantly more important to China’s political leadership and other central-level Party and state institutions. Its significance to the political leadership is in its work in creating a body of foreign-related law. Given that the Party leadership increasingly stresses political leadership of the courts and political competence of members of the judiciary, carrying out the functions described above requires SPC judges dealing with foreign-related matters to have both a high degree of political consciousness and technical expertise. Why? As the SPC media often say, “the people’s courts are a highly political professional institution, and a highly professional political institution” (人民法院是政治性很强的业务机关，也是业务性很强的政治机关).
Susan Finder is a long-standing observer of the Chinese judicial system with more than 30 years of experience. She is a member of the international commercial expert committee of the China International Commercial Court (CICC) of the Supreme People’s Court and on the committee of the Shanghai International Arbitration Center. The views expressed in this article are her own, not those of either institution. She is a Distinguished Scholar in Residence at the School of Transnational Law of Peking University (Shenzhen), where she teaches about judicial reform in comparative perspective. Her blog, the Supreme People’s Court Monitor, is arguably the most authoritative scholarly resource on developments around the People’s Republic of China’s highest court. Follow her on Twitter @SPCmonitor or get in touch per email at susan.finder[at]outlook.com
In response to an apartment fire in Urumqi which killed eleven residents in November 2022, Shanghai residents took to the city’s Urumqi Road, protesting peacefully against China’s zero-covid policy. While the protests resulted in the official end of nearly all Covid-19 related restrictions, several participants were detained and sentenced for picking quarrels and provoking trouble (Criminal Code Art. 293). Photo by Cinea467
However, picking quarrels is not confined to politically sensitive cases. Authorities also employ it to enforce state-approved moral standards, leading to the criminalization of individuals for morally contentious actions or speech on social media. For instance, a Douyin (Chinese TikTok) creator received a prison sentence for pretending to engage in a fictional fight against imaginary opponents, deemed as provoking social disorder by local police ((2019) 湘1124刑初119号).
Picking quarrels is legally defined in Article 293 of China’s Criminal Code, encompassing the following actions:
(1) Arbitrarily attacking people with particularly grave circumstances;
(2) Chasing, intercepting, or berating others with particularly grave circumstances;
(3) Forcibly taking, destroying, or occupying public or private property with serious circumstances;
(4) Making a commotion and causing serious disorder in a public place.
Penalties range from supervised release to five years of imprisonment, with up to ten years for those repeatedly inciting others to disrupt social order.
However, the broad and vague application of this offense makes it difficult to establish a direct link between Article 293 and many specific picking quarrels cases. Sub-category 4, “making a commotion,” acts as a catchall within a catchall, allowing authorities to prosecute objectionable acts or speech under the pretext of causing disorder in public venues. Importantly, despite whether a case is politically motivated or not, picking quarrels is applied arbitrarily in both situations. This raises an intriguing question: to what extent is the boundary between political and non-political spheres significant within an authoritarian legal system like China’s?
Today, scholarly debates on “authoritarian legality” in China offer varying views. Optimists view the centralization of power through legalistic means positively, while critics argue that the Chinese legal system, as a whole, deviates from the rule of law, especially under Xi Jinping’s leadership. The theory of legal duality suggests the coexistence of a genuine legal order and a political agenda-driven state. However, many of these arguments assume China’s authoritarian legality is inherently tied to how strong the political nature of the issue is—whether it’s deemed “political” or not.
Despite ongoing debates, the significance of law in governing authoritarian systems is widely acknowledged—and it becomes crucial to grasp the essence and characteristics of authoritarian law. This article introduces the concept of legal rationality to illuminate authoritarian legality. It proposes that, whether a system is democratic or authoritarian, legal rationality denotes the intrinsic value of law that is publicly accessible, transparent, and consistent, serving to restrict the arbitrary discretion of individuals in positions of authority. Thus, if there is a decline in legal rationality within an authoritarian system, then it probably does not solely result in more political prosecutions but could also lead to heightened arbitrariness in non-political domains as well.
In China, post-Mao legal reform (since 1978) aimed to establish legal rationality for prosperity, stability, and regime legitimacy, and of course—also with the hope of helping to prevent political catastrophes like Mao Zedong’s Cultural Revolution. However, under Xi Jinping’s leadership, there has been a decline of legal rationality in both political and non-political spheres. This article offers two explanations for this decline. First, in an authoritarian system, officials tend to exercise arbitrary power as a convenient means to not only exert political control but also address governance issues (they often benefit personally from such actions as well). Second, China’s partial legal rationality has been mainly maintained through self-restraint by the CCP in the post-Mao era. As this self-restraint weakens, both political and non-political spheres are increasingly vulnerable to prerogative power erosion.
The example of picking quarrels vividly illustrates the decline of legal rationality in Xi’s China, leading to arbitrary actions within the political realm and routine criminal justice system. Throughout Mao Zedong’s reign from 1949 to 1978, hooliganism functioned as a versatile crime, diverging from legal rationality by being widely applied across both political and non-political contexts. China’s 1997 Criminal Code has replaced hooliganism with picking quarrels. “Subsequent efforts in the 2000s and early 2010s aimed at rationalizing picking quarrels through clarification of legal terms, moral detachment, and to a limited extent, depoliticization.
However, as mentioned earlier, Xi Jinping’s tenure saw a regression, reversing the trend of rationalization observed in earlier reforms. In both political cases and cases with less political nature, this excessive application of picking quarrels comes at the cost of the rationalization of China’s criminal legal system that had been developed during the reform era. This erosion extends beyond hyper political cases, affecting everyday legal and governance systems, blurring the line between political and non-political realms.
The decline of legal rationality across political spheres and ordinary justice in the case of China highlights the necessity of reevaluating our understanding of authoritarian systems—it might be the (ir)rationality of the law, rather than its political nature, that defines authoritarian legality.
Luo Jiajun is a Research Scholar in the Equality Rights Program at the Faculty of Law, University of Hong Kong. Luo recently received a Dissertation Year Fellowship from HKU for his outstanding (5%) PhD thesis titled “Chinese Courts: Unequal Justice”. From 2021 to 2023, he was a China Law Fellow at Georgetown University.He can be emailed atjiajunlok[at]gmail.com.
