European Chinese Law Research Hub

The Infrastructure of Control: Rethinking Party Discipline in China’s Political-Legal System

6. February 2025

A new book proposal by Shuyu Chu

The headquarters of the Central Commission for Discipline Inspection / National Supervision Commission at 41 Pinganli West Street (平安里西大街41号) in Beijing

When Xi Jinping came to power in 2013, he spoke of institutional cages to constrain public power. While many saw this as signaling a move toward legal constraints, the reality has evolved quite differently. Instead of strengthening external checks, the Chinese Communist Party (CCP) has developed an elaborate disciplinary apparatus that simultaneously constrains and shapes its members’ behavior.

My research examines a fundamental puzzle: why does the CCP persist with its opaque, Party-centered disciplinary approach despite widespread criticism? Drawing on Party regulations, news reports, propaganda TV programs, internal cadre training materials, Chinese and English scholarship, and interviews with Party disciplinary officials, I argue that the answer lies in understanding the dual nature of Party discipline (党纪). While commonly viewed as a regulatory system of rules and punishments, Party discipline also functions as what I call a “disciplinary infrastructure”, a Foucauldian framework, in that it simultaneously shapes Party members’ behavior and deters misconduct. This duality reveals that the CCP uses discipline not just as a control mechanism, but as an elaborate apparatus for producing political compliance.

The metaphor of infrastructure is purposeful. Much like urban infrastructure shapes city life while remaining largely invisible, the Party’s disciplinary mechanisms operate through everyday practices and routines that fundamentally mold behavior. This infrastructure becomes apparent mainly when it malfunctions, as its influence permeates all aspects of Party life. Consider how water systems shape urban development – similarly, the Party’s disciplinary infrastructure determines the flow of power, the patterns of behavior, and the development of political culture within the organization.

The system’s effectiveness stems from four distinctive characteristics. First, it functions productively, actively shaping behavior rather than merely constraining it. This is exemplified by the Party’s “comprehensive and strict governance” (全面从严治党) approach, which integrates political education with detailed conduct regulations. Cadre training programs, for instance, don’t just teach rules; they create experiences that reshape how officials understand their role and responsibilities.

This leads to the infrastructure’s second key characteristic: it addresses not only external behavior but also seeks to transform the “soul”. The Party’s rhetoric of “curing the illness to save the patient” reflects this deeper aim. The goal is inner transformation, not just external compliance. Study sessions, self-criticism meetings, and political education serve to reshape members’ fundamental orientations rather than just their outward compliance. This therapeutic approach transcends simple deterrence, aiming instead to manufacture compliance through deep psychological transformation.

The system also generates comprehensive knowledge about its subjects, creating a power/knowledge nexus that reinforces Party control. Beyond tracking professional performance, the Party maintains detailed records of personal connections, political attitudes, and daily behavior. This accumulated knowledge enables precise calibration of control mechanisms, allowing the Party to shape conduct through carefully targeted interventions. The depth and breadth of this information collection creates full legibility of the members- a condition where every aspect of member behavior becomes potential data for evaluation and control.

Finally, drawing on the concept of the panopticon, the system creates an environment of constant potential oversight that converts external monitoring into internalized self-discipline. Party members are acutely aware that supervision can occur at any moment—whether through inspection teams, peer monitoring, or documentation reviews. This unpredictability, combined with calculated isolation, promotes self-regulation as members internalize disciplinary standards. The system’s brilliance lies in how it creates an automatic, self-sustaining disciplinary mechanism where members effectively police themselves, significantly reducing the need for costly direct oversight.

This framework helps explain several paradoxes in the CCP’s approach to discipline. Consider the Party’s handling of official misconduct through internal disciplinary system. While seemingly lenient compared to criminal prosecution, this “therapeutic” approach actually optimizes power by preserving valuable human capital while reinforcing the Party’s authority to discipline and reform. The official is isolated, made to study Party documents, write self-criticisms, and undergo “thought reform” – a process aimed at producing not just compliance but loyalty.

The disciplinary infrastructure’s interaction with China’s legal system reveals its calibrated design. At one level, it creates fine-grained behavioral controls that operate beneath legal thresholds – regulating matters too subtle for formal law to address. It also maintains parallel oversight mechanisms outside legal frameworks, allowing the Party to address conduct that might be politically problematic but not legally wrong. Most intriguingly, it sometimes supersedes legal protections in service of Party control, as seen in special investigative procedures and detention powers. The recent establishment of the National Supervision Commission institutionalizes these dynamics in new ways.

Understanding this infrastructure helps explain several puzzling aspects of Chinese governance. Why do legal reforms often falter against Party discipline? How does the Party maintain control over its massive membership? The answer lies in how this disciplinary infrastructure shapes behavior through multiple, reinforcing mechanisms that formal law cannot replicate. By revealing the dual nature of the CCP’s power as both coercive and productive, this framework offers a new paradigm for understanding how modern authoritarian organizations maintain control.

Consider how this plays out in practice. When local officials implement policies, they’re motivated not just by legal requirements but by an internalized understanding of Party expectations, shaped through years of disciplinary training and oversight. Their behavior is guided by both formal rules and informal norms, enforced through a complex web of organizational practices that constitute the disciplinary infrastructure.

This analysis offers crucial insights for understanding the CCP’s resilience and the sophistication of its political control mechanisms. Rather than relying solely on coercion, the Party has developed an intricate disciplinary infrastructure that fundamentally reshapes member behavior through comprehensive oversight and systematic interventions. This helps explain why the CCP has maintained such effective control over its massive bureaucracy and why Western observers often underestimate its organizational capabilities.

For scholars of Chinese politics and law, this framework illuminates why conventional legal reform models based on Western experiences often fail to capture the reality of China’s party-state system. The Party’s disciplinary infrastructure operates beyond the bounds of formal legal institutions, creating a comprehensive environment for behavior modification that works simultaneously through political, organizational, and institutional channels. This explains both the durability of Party control and the limitations of viewing China’s governance solely through the lens of formal legal institutions.

These insights are particularly relevant as China continues to refine its governance model under Xi Jinping. The multifaceted nature of the Party’s disciplinary system demonstrates how modern authoritarian regimes can maintain control through complex institutional mechanisms that go far beyond the simple repression emphasized in traditional authoritarian regime theory. This analysis thus contributes not only to our understanding of the CCP’s intra-Party disciplinary regime but also to broader theoretical debates about authoritarian resilience and state capacity in contemporary authoritarian regimes.

Shuyu Chu, former China Law and Policy Fellow at Georgetown University (2021–2023), completed her PhD at the University of Hong Kong’s Faculty of Law. Her doctoral thesis, “Beyond Anti-Corruption: The Chinese Communist Party’s Disciplinary Infrastructure,” was ranked in the top 5% and awarded the HKU Dissertation Year Fellowship (2024) and nominated for the prestigious Li Ka Shing Prizes for Best PhD thesis. Drawing on unique access to internal Party materials, extensive empirical research, and an innovative application of Foucauldian theory, this groundbreaking study offers unprecedented insights into China’s disciplinary systems. It is now being developed into a book manuscript. She welcomes discussions with publishers interested in bringing this timely analysis to market. She can be reached at chushuyu@connect.hku.hk.

The Authoritarian Commons: Q&A with Shitong Qiao

23. January 2025

Shitong Qiao’s book The Authoritarian Commons: Neighborhood Democratization in Urban China was published with Cambridge University Press in January 2025.

Voting boards of homeowner associations in 2024

How did you find your way into the world of homeowners in China?

Around 2017, I noted that many of my friends in China, former classmates from Beijing who now work for companies or the government, began complaining about their property management companies. Some deliberated establishing homeowner associations. This group of professionals is generally busy with work and their families, have little spare time and are not interested in discussing politics. But here they came forward, spending a lot of time working on creating homeowner associations (业主委员会，HoAs), to that end actively engaging in bargaining and negotiations that sometimes had them threatened by government officials and property management companies. I wondered, what is their motivation? There is no money to be made from this, and the social capital to be gained is rather small or guaranteed. I realized that the phenomenon is very broad in China.

Why should we care about homeowner associations (HoAs) in China?

Anywhere, HoAs are fascinating – some property law scholars go as far as to argue that HoAs are probably the most important kind of quasi-private organizations, in the USA just as in China. They are like a government in the neighborhoods, an important institution in everyone’s daily life.

In the Chinese case, the emergence of property rights and with it the HoAs are probably one of the most important results of China’s market-oriented reforms. If you compare urban Chinese life in 1978, 1979 to today, the most important and visible consequence is that people now own their homes. For most middle-class families, their apartment is their most important investment. As a popular saying went back then, the three most important things to Chinese families are “儿子、票子、房子 (a child/son, cash, a house).

In addition to the right to own property, the right to associate is a notable development because it is a right of which there are not many, even in today’s China. The other case that comes to mind are the villager’s committees, which were much in the focus of scholars who saw them as potential roots for democracy. While that hope barely materialized, the urban version of them – the homeowner associations – played out very differently. They were not based on lineages, bound into the old cultural traditions of hierarchies and authorities like villager committees in rural China. HoAs are formed by urban citizens who bought apartments from all over China without prior connections. The moment they move into a condomium, they are strangers to one another, but need to learn how to solve their common problems together. In urban residential compounds, one’s social status, like who your father is and where you work doesn’t matter as much. Neighbors had to learn how to communicate with others on an equal ground.

How are HoAs different from other non-government organizations?

“Non-governmental organization” is a broad term, they are not necessarily democratic. Many operate more like corporation: A leader, employees, structures. HoAs make decisions together by voting, and members are volunteers. HoAs also have their own independent source of funding, unlike most NGOs who rely on external funding.

Can you give us some historical context: How did the HoA wave set off and how has the relationship between HoAs and local governments evolved over time?

The background is the urban land reform starting in the 1980s, and the nationwide housing reform in 1984. The first HoA was established in 1991 in Shenzhen. The reason was that some of the residential compounds were still paying the industrial electricity price, which is higher than that for residential electricity. The homeowners realized that they cannot negotiate with the electricity company one by one, and as the entire building was affected, sought to team up with their neighbors. Some of the first homeowner activists I talked to, now in their 70s, explained that there were a lot of different problems in the neighborhood such as with sloppy property management companies, but the companies refused to talk to individual residents. The condominium living structure that emerged in cities in China really forced homeowners to bond.

In 2003 the State Council promulgated the Real Estate Management Regulations, the first national-level law that officially recognized HoAs and gave them a legal basis. One issue debated leading up to this was a mass of complaints of consumers about apartments they bought being defect. Hence, it was the Ministry of Construction 建设部 (now: Ministry of Housing and Urban-Rural Development) which came up with the plan of granting HoAs power to better discipline the real estate developers, to solve the problem of low quality house construction. Housing issues were thus characterized in Chinese media as part of the “consumer rights” movement that was taking off to counter the wave of low quality products and fraud in the marketplace. Back then, the Ministry of Civic Affairs protested during the consultation process of the Regulations, arguing that HoAs might clash with the Residence Committees (居委会), which are grassroots governance organizations inscribed in the Constitution. The response by the Ministry of Construction was to say that they are private organizations seeking to support the sound development of the real estate industry and open to aid the Residence Committees where they could. This somehow settled the tension.

Frankly speaking, there are a lot of overlaps between HoAs and Residence Comittees. HoAs hire their own security guards, cleaning services and so on. There is indeed a direct competition of power between the HoAs and the Party-state (in the form of the Residential Committees) right in the neighborhood.

The key conflict that your research explores is the Party-state’s constant quest for maintaining social stability and homeowner’s interests in self-governing their private surroundings. What are typical cases in which these two positions clash?

There is an incentive for the government to support HoAs, they hope that HoAs can resolve local issues quickly and smoothly. Local governments rely on the HoAs to take care of many things. The street-level government branches (街道办) hope to maintain the status quo, or are even supportive of the HoAs. They call upon on the HoAs for instance when enforcing restrictions during the Covid-19 lockdowns. On the other hand, the HoAs can grow “out of control”. I conceptualize this tension as the authoritarian dilemma.

One issue of contestation is when HoAs want to switch property management companies. In one case for instance, protests by homeowners including threats and even physical violence unfolded in a typical middle-class neighborhood in Beijing because of that. The municipal government intervened and cast the homeowners as trouble-makers. Homeowners then created platforms to connect with peers across the city in solidarity. Eventually, a deputy mayor of Beijing backed down and apologized. Such stories happened in quite a lot of neighborhoods where the local government had decided to side with the property management companies rather than grant HoAs requests.

Another type of conflict is the requirement to establish party cells in HoAs. A central Party document encouraged to do so and in some places, especially smaller cities, local branches have translated that into binding rules. For instance, Huizhou required that 60% of a HoA’s board members to be Party members. Most HoA members aren’t Party members, so the requirement isn’t feasible to begin with. A Huizhou homeowner, not a Party member but much supported by his neighbors, contested Party member quotas. He initiated a legality review of relevant local policies at the provincial People’s Congress. He received a favorable reply and managed to force the local government to officially abolish the Party member quotas. His argument was straightforward: He said that neither the Property Law nor the Civil Code mentioned a requirement of minimum Party member quotas, and thus the respective local policies are not lawful.

So the Party’s measures to impact HoAs from the inside largely failed. Are such plans now shelved permanently?

I don’t think the Party center paid much attention before, but in 2017 the CPCCC and the State Council jointly issued a first Opinion specifically addressing neighborhood governance. Now they realized that getting a hold on the HoAs is part of what the Party calls controlling “the last inch of governance”. But can they succeed? Not 100%, unless there is a war-like emergency situation where the market can be totally disregarded temporarily. But even then, I doubt that the Party-state has the resources to exercise direct control over so many neighborhoods in the country for a long time.

Covid-19 was an illustrative example case: Based on my fieldwork, the lockdowns were not realized by placing police everywhere, but by relying on the homeowners to govern themselves. In a case I observed, the HoA successfully refused to place paid security at the gates that would enforce the lockdowns. One of my interlocutors in charge of a HoA said: “A smart leader doesn’t have to do things by himself. A smart leader has people take care of their own business.” Given the limited resources the government has, I don’t think they could directly exert much control. Otherwise the residence committees would have been much better equipped and resourceful. The ongoing fiscal crisis of local governments exacerbates this situation.

A homeowner association’s protest shirt reading “return my property owner rights, return my home”

Let’s talk about fieldwork in China. You really created a 360 degrees account of the HoA-Party state relationship by talking to and gathering documents from a wide range of parties involved. What challenges did you face in data collection?

I think it helps that I like listening – to people’s stories and problems. Property management is a topic that many homeowners don’t deem sensiitive and that they have something to say and complain about. Getting to know leaders of their networks really helped. It takes Patience and time to build interpersonal connections and trust ,but it doesn’t always work. I ended up joining one potential interviewee on a very long morning run to build trust, but ended up not getting the interview even after 10 kilometres running together. His neighborhood had been in the news, that is probably a reason he was cautious.

A challenge was my affiliation with a university in Hong Kong during the years of social unrest in Hong Kong, people sometimes saw it as sensitive. Later, the affiliation with an American university did not exactly help. Generally speaking, in recent years, people have become much more cautious in terms of who they talk to. That even goes for a formerly not sensitive topic such as property management in residential compounds.

Overall, what role do courts play in neighborhood democratization? At least for the part of administrative litigation, I discovered that a notably large proportion of cases are related to facility management companies in urban residential compounds.

This research really changed my understanding of courts in China. Previously, from my work on small property, I concluded that courts just seek to maintain the status quo. They weren’t exactly at the frontier of social change.

I now found that legal rights and courts actually matter a lot. Courts across China have a huge impact in shaping the fate of HoAs: there are many thousands of case decisions, from both civil and administrative litigation. In one chapter, Rule of Law and Democracy, I explain the big differences regarding the rates of HoAs in Beijing (12%), Shanghai (94%) and Shenzhen (41%). One major reason are courts.

Courts in Shanghai for instance are much more supportive of homeowner autonomy. The Civil Code passed in 2020 imposes stringent requirements on HoAs, for instance that their resolutions are only effective if at least 2/3 of the members participated in a vote. Achieving that is a difficult task: Even just collecting signature from homeowners, often a few hundreds or thousands, is not easy. However, before the Civil Code established this requirement, Shanghai already had a local practice of allowing homeowners to pass resolutions according to the rules they stipulate in their charters. Hence, when the Civil Code came out, in order to not radically break with the established practice, Shanghai courts interpreted the Civil Code provisions very broadly, deciding in favor of homeowners. So Shanghai courts developed a legal reasoning stressing original intent and fundamental spirit of the Civil Code as supportive of private autonomy. The issue has also been brought before the Supreme People’s Court, the local people’s congress and administration, but it was the Shanghai courts that provided a pragmatic solution, demonstrating the unique advantages to local judicial craftsmanship in handling the conflicts between national law and local practices.

Last but not least: What are research questions, suggestions, ideas that you take away from this project?

The first one is a more comprehensive study of the right to associate. So far, it has barely been taken seriously. There are many studies about collective actions, like protests, but I think there is a difference between these and the legal right to associate. HoAs are active in all sorts of things, such as help bargain compensation after the Tianjin explosion in 2015, as our colleague Benjamin van Rooij pointed out.

Secondly, I want to do a comparative study of HoAs across different cultures. How do homeowners resolve problems together? That can tell us a lot about how societies are organized. If anyone is interested participating in this, do reach out to me.

Shitong Qiao’s book The Authoritarian Commons: Neighborhood Democratization in Urban China was published with Cambridge University Press in January 2025. Shitong Qiao is a Professor of Law and the Ken Young-Gak Yun and Jinah Park Yun Research Scholar at Duke Law School. He also holds the title of Honorary Professor at the University of Hong Kong and is a core faculty member of the Asia/Pacific Studies Institute at Duke University. He was previously a tenured professor at the University of Hong Kong, a Law and Public Afffairs (LAPA) fellow at Princeton University, and the inaugural Jerome A. Cohen Visiting Professor of Law at NYU.

The Juridification of Government Accountability in China: Addressing Mass Actions

13. January 2025

A new book by Congrui Qiao

“Don’t expect judges in China to have studied at a law school.”

Every time I tell my students at Dutch and Belgian law schools, I see the same reaction: confusion, shock, and a hint of disbelief spread across the classroom. It sounds bizarre but the absence of formal legal training is a long-standing aspect of the Chinese legal landscape. Since 1982, government officials and military officers – with no formal legal education, simply classified under the public personnel administration status of ganbu (干部) or “cadres” – had been transferred into the courts as assistant judges or administrators.

Later in 1983, the Zhejiang Provincial Court requested guidance from the Supreme People’s Court: could assistant judges, some without formal legal training, serve as trial panel members or even presiding judges? The answer came back – yes, they could. That simple approval enabled those who had no legal background to occupy key roles in the judicial process until the 2000s.

As I completed my PhD at Utrecht’s international and European law department, one question kept haunting me: how can the law truly be taken seriously in society? According to Dicey’s classic theory, the absolute supremacy of law necessitates the judiciary to regulate the conduct of government powers and protect individual rights. But as I explored further and learned more about the factors external to the legislature and judiciary—such as political pressure, institutional power dynamics and social norms, I asked myself: is there something more to it?

China, while maintaining the supremacy of political leadership of the CPC, has seen a remarkable legal evolution in recent decades. In 2019, nearly a quarter of court cases challenging government conduct were decided in favour of applicants, a fourfold increase from 2010. This apparent paradox inspired me to develop a new framework to explain and assess the development of law in China —a concept I term juridification.

In my recent book titled Chinese Rules and Procedures for Addressing Mass Actions, I introduce the juridification framework. It builds on a content analysis of a corpus of legislation, court decisions, administrative regulations, political resolutions and media reports from the late 1970s to the mid-2010, texts of over 13 million Chinese words in total. The framework focuses on three core dimensions of the development of government accountability law in China:

Formalisation – How government accountability rules are developed and codified to establish formal accountability of government conduct.
Institutionalisation – The extent to which government bodies, judiciary and semi-official associations conform to these rules, willing and able to adhere to them in practice.
Socialisation – The degree to which social members view personal and public issues through a legal accountability lens, making their decisions in line with legal principles.

Under this framework, I look into three types of “mass actions” in China: collective petitions, labour actions, and farmers’ protests aimed at challenging government decisions. Each type is selected based on four criteria: (a) their claims point to flaws in government policies, or implementation procedures; (b) they take a collective yet non-violent form; (c) their goal is to get the authorities to address their losses or grievances; and (d) they have been widely reported in the Chinese media, reflecting sustained public concern.

By examining the juridification of government accountability law in these cases, this book provides a timely exploration of how legal rules operate and socialise within an authoritarian context, with implications for understanding government-citizen dynamics, and the evolution of government accountability in China.

Dr. Qiao Cong-rui is the Research and Engagement Director of Law4Sustainability, a research initiative dedicated to advancing culturally sensitive approaches to ESG compliance. She holds a PhD in International and European Law from Utrecht University (2018) and has over a decade of experience bridging European and Chinese perspectives on human rights, labour protection, and corporate social responsibility. Dr. Qiao’s academic contributions include over 20 research articles and a monograph in these fields. A BKO-certified educator from VU Amsterdam (2023), she is a senior lecturer in human rights law, governance and business transition, and comparative legal history. She has taught at several prominent law schools, including VU Amsterdam, the University of Amsterdam, the University of Antwerp, Nankai University, and Northwest University of Political Science and Law.

Is Chinese Law Prepared for AI Songs?

5. December 2024

A paper by Yang CHEN

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.

The Court as a Policy Information Discoverer: Evidence from China’s Emerging Industries

12. November 2024

A new paper by Tianhao Chen, Wei Xu and Jing Zhao

Hangzhou Internet Court, Zhejiang Province

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.

Anti-Suit Injunctions in Patent Litigation in China

11. October 2024

A new paper by Alexandr Svetlicinii and Fali Xie

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. InterDigital and 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.

The paper The Anti-Suit Injunctions in Patent Litigation in China: What Role for Judicial Self-Restraint? was published in the Journal of Intellectual Property Law & Practice.

Alexandr Svetlicinii is Associate Professor of Global Legal Studies at the University of Macau, Faculty of Law where he also serves as the Programme Coordinator of Master of Law in International Business Law. He is the author of the monograph Chinese State Owned Enterprises and EU Merger Control. Fali Xie is PhD candidate at the University of Macau, Faculty of Law.

How to Evaluate Prosecutors? China’s Shift from “Line Appraisal” to “Case-Process Ratio”

20. September 2024

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.

High Theory in Chinese Law

14. August 2024

A new paper by Mark Jia

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.

Consensual Settlement of Competition Disputes in China: a Call for Conditional Arbitrability

8. July 2024

Alexandr Svetlicinii

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”.

The paper Consensual settlement of competition disputes in China: a call for conditional arbitrability was published in the Asia Pacific Law Review. Alexandr Svetlicinii is Associate Professor at the University of Macau, Faculty of Law where he also serves as the Programme Coordinator of Master of Law in International Business Law. He is the author of the monograph Chinese State Owned Enterprises and EU Merger Control.

A Funny Thing Happened on the Way to Democracy: Who Eliminated All Other Political Systems?

21. June 2024

A new paper by Teemu Ruskola

^{From a motion picture, 1920, USA. Library of Congress}

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.”