Chinese Legal Professionals and Gender Equality

20. October 2020
A new paper by Helle Blomquist
Fading propaganda: “Raise Women’s Status” (tigao funü diwei), spotted in Chaoxing, Zhejiang Province

The notorious gap between socialist ideals of gender equality on the one hand, and the patriarchal reality in the People’s Republic on the other has not been bridged by economic development: Particularly when it comes to political participation, women remain underrepresented. In a small but insightful case study (PDF available here), Helle Blomquist asked in how far legal professionals may play a helpful role to end the severe gender inequalities in Chinese society.

My case study in a Chinese provincial city has given me hopes for the Chinese legal profession and its work for the advancement of gender equality as a value in the modern Chinese state. If gender equality is a goal, lawyers in China may facilitate progress towards this goal in the Chinese population. They may accomplish this through communicating values of gender equality to their clients and thereby presenting feasible options that empower women. In doing so, they function as intermediaries between the modern state with a Marxist ideology of equality and a population with traditional values.

Why is this interesting? Over the years, Western Chinese studies have shown that even though the Chinese government has implemented laws to advance equality, culture has been a drawback. Equality is part-and-parcel of Marxist ideology, as Simone de Beauvoir’s works demonstrates. However, the cleavage between the high-flying Chinese government policy and a traditional population in some cases is too wide. The main finding from my case study points to legal professionals as a ‘missing link’ to bridge this cleavage. Their function however may depend on their individual awareness of their role, their support of gender equality, and their position vis-à-vis the state and party.

The professionals had varied positions: one law professor, a judge, a practicing lawyer, and two project workers. The law professor runs a legal clinic, where she influenced her students and suggested solutions for the clients seeking advice to solve their legal conflicts. The project workers aimed to empower villagers to organize. Both, the project workers and the law professor found solutions for their clients, based on the law and advancing the maximum of equality within the law. They planned their consulting sessions in a way that would encourage women to seek their own solutions and investigate their rights under the law rather than resorting to traditional mechanisms. The judge decided on divorce cases and she had the same aim, but saw herself limited by the law. The practicing lawyer represented clients at court in criminal and commercial cases. He also communicated gender values, even if more traditional ones. A reaction from a law student demonstrated that this made an imprint on her, thereby demonstrating that communication of values matter, in the case of the practicing lawyer the effect would more likely advance barriers against gender equality.

This brings me to the drawbacks I found. Firstly, the bias of the legal professional may influence the values communicated, independent of government policy. Other drawbacks are more subtle. In analyzing them, I drew on classical sociological theory, namely Talcott Parsons’ idea of malfunctions. The legal professional may be under pressure from the state, as for instance the judge in my sample, and in this resort to formalism that will impair her ability to communicate equality. The project worker may identify with his or her clients and exaggerate the client’s case. A practicing lawyer may be likely to adopt a position of self-interest and try to act as gatekeeper to the profession.

A case study cannot reveal anything concerning the extent of the findings, of course. I conducted my study in a single city at a specific time. The practice I detected may change, and it may turn out differently in other cities and government policy and pressures may change. However, my case study showed a potential. 

You may find the whole paper, as published in the Naveiñ Reet, Nordic Journal of Law and Social Research (NNJLSR), No. 9, 2020 here.

An Experimental Regulatory Approach to Encourage Open Public Data: A Chinese Experience

9. October 2020
A new paper by Cancan Wang and Kalina Staykova
SODA (Shanghai Open Data Apps), started in 2015, is one of the first open public data initiatives in Shanghai that encourages the opening of public data. Source: http://soda.data.sh.gov.cn/

Open public data, as a philosophy and a set of policies for increasing the access and use of the dataset of public bodies, has been advocated and implemented across the globe for its promise of increased public accountability among other benefits. Nonetheless, it is often neglected that public accountability is a desired, but not a guaranteed outcome.

Since the first attempt in Shanghai to broaden public data access in 2011, open public data initiatives have witnessed rapid development but also pushbacks from local municipalities and departments, among which lack of willingness in participation and low data quality are the two primary challenges to realize the benefits of local open public data initiatives. As a countermeasure, the local regulators of open public data initiatives in Shanghai have experimented with a novel approach, building on the assumption that the perceived risk of liability in disclosing data is a key barrier for the local municipalities and departments to engage actively with open public data.

In our paper “Decoupling Accountability and Liability”, published recently in Naveiñ Reet: Nordic Journal of Law and Social Research (PDF here), we explore this novel regulatory approach by looking into the recently announced Interim Measures for the Opening of Public Data in Shanghai and the context of their emergence. By unfolding the local regulators’ accounts of the development of the interim measures, we explore: how can interim regulatory measures reduce the perceived risk of liability among public bodies and contribute to accountability of open public data initiatives?

Our findings show that the adopted interim measures have managed to provide both clarity and flexibility to open public data entities, when it comes to opening their data. In particular, the measures institutionalized the roles and responsibilities of these entities by specifying the different categories in which they can be categorized and outlining clearly their specific duties and the circumstances under which they can incur liability. At the same time, due to their interim nature, the measures allowed for certain level of flexibility as they can be easily amended in case they are not optimal. This experimental approach towards regulating open data, which relies on interim, yet specific measures, reduces the legal uncertainty, which open public data encounter when opening their data sets. Thus, they potentially contribute to increased accountability.

In our paper, we also discuss the appropriate level to regulate open data initiatives, an issue which has implications for the ability of the legislators to achieve both, clarity and flexibility of the measures. While the majority of the measures on supra-national (e.g. European Union) or national level remain somehow general and lasting for the foreseeable future, we argue that they cannot substantially reduce the legal uncertainty experienced by public entities, which remain unwilling to participate fully in open data initiatives. In our research, we emphasize the importance of local legislative initiatives to achieve the necessary specificity of the measures, while also ensuring that they remain flexible enough.

The paper is available as a free PDF here.

Cancan Wang is an Assistant Professor at the Department of Business IT, IT University of Copenhagen, Denmark. She was trained in sociology, ethnology and information systems. Her current research interest lies in the sociomaterial development (e.g., governance, regulation, and organizational arrangements, etc.) of public digitalization (e.g., open data, artificial intelligence, social media, etc.). Feel free to contact her at cawa@itu.dk or over LinkedIn.

Kalina Staykova is an Assistant Professor at the Department of Digitalization, Copenhagen Business School, Denmark. She was trained in information systems, inter-national law and management. Her research investigates broad range of issues related to digital platforms (e.g., design, adoption, monetization, regulation, etc.) in various contexts (e.g., digital payments, e-commerce, open data, etc.). Contact her at kss.digi@cbs.dk or find her on LinkedIn.

With a “Pluralized” Approach Towards Predictive Policing

24. September 2020
A new paper by Daniel Sprick

Public security forces in the PRC push for an ‘informatization (信息化)’ of their work, and increasingly apply analytical techniques for not only solving past crimes but also preventing future crimes. Such measures are far-reaching and part of a highly integrated framework which, according to Xi Jinping, is part of a larger policy approach for which his administration coined the phrase ‘social governance (社会治理)’. More and more different policy fields are drawn into what has been described as a ‘pluralization of security work’.

While there is still no nationwide program or concept for predictive policing in China, there are however local projects that make use of analytical data technology (e.g. in Zhongshan, Guangzhou and Hangzhou, Zhejiang) and several specific crimes (e.g. drug-related crimes and telecommunication fraud) are targeted by predictive policing measures in China. Additionally, the pervasive surveillance of the entire (Muslim) population in Xinjiang produces high volumes of data that are used for operational purposes in China’s ‘People’s War against Terror’. Daniel Sprick‘s latest paper in the Nordic Journal for Law and Social Research (available for free here) asks: Can China overcome the problems and drawbacks frequently discussed in the context of predictive policing in general?

In his paper, Daniel Sprick gives an overview of ongoing predictive policing programs and related technology- and data-driven undertakings of the Chinese security apparatus in the context of China’s comprehensive approach towards maintaining order. Based on these observations, he analyzes China’s potential for an effective predictive policing by scrutinizing the availability of possible solutions for the inherent flaws of predictive policing that are frequently conceptualized in the existing English-language literature on the matter.

He finds that it is the propagandistic value of predictive policing, promising fairness and justice to be the single most important end possibly even unsurmountable obstacle in establishing an effective crime reducing system of this kind in China. The Chinese security apparatus appears systemically unfit to critically evaluate, acknowledge error, re-adjust methodologies and adapt responses, which is an indispensable process in making predictive policing work. If predictive policing is seen as an instrument to further target specific (dissident) groups however, China may be able to successfully employ Big Data technology for this particular objective, “It is however not conceivable that this technology will substantially change police operation and police culture in China, it will rather amplify pervasiveness and bias of its practices.”

The paper is available here.

Daniel Sprick is an Associate Researcher and Lecturer at University of Cologne’s Chair for Chinese Legal Culture. He has publicized widely on law and criminal justice in China. Find out more about his work and get in touch with him here or on LinkedIn.

Smart Courts: Vehicles for Genuine Judicial Reform?

31. August 2020
An analysis by Straton Papagianneas

The automation and digitisation of justice (司法信息化 ‘judicial informatisation’) in China has been ongoing for two decades. The latest development is the emergence of “smart courts” (智慧法院), which are part of the Chinese party-state’s efforts to reform and modernise its administration of justice and governance capacity. The advent of Smart Courts is an example of the willingness of the party-state to harness new technologies for its governance reform goals. However, the academic reaction has not been uniformly enthusiastic; there is scepticism about the benefits of increased automation and digitisation. Straton Papagianneas explores the phenomenon in the course of his PhD at Leiden University. In this post he sets out to map the academic reaction to some of the smart courts’ implications among Chinese scholars.

Chinese scholarly work has traditionally been a neglected group in academic discussions, including in the English-language literature on automated and algorithmic justice, whereas the latter is thoroughly cited and discussed by Chinese scholars. However, China is at the vanguard of judicial automatization and digitisation. The implications of its development can certainly be useful for other jurisdictions. Therefore, their academic discussion deserves attention.

A Brief Introduction to Smart Courts

The definition of a “smart court” is difficult to capture, partly because different courts use different technologies. Among the different official definitions, the clearest one, from the 2017 New Generation AI Development Plan (2017 AI Plan, translation here), states that a court can be considered ‘smart’ if it has a:

“[…] courtroom data platform that integrates trials, personnel, data applications, judicial disclosure, and dynamic monitoring, and promotes the application of artificial intelligence in evidence collection, case analysis, legal document reading and analysis; realising a smart court trial system and smart trial capacity.”

A smart court is not necessarily a court where everything is completely automated, with a self-learning ‘robot judge’ adjudicating over cases independently from any human interference. It is a court where judges use software applications to conduct the judicial process in a digital environment. ‘Intelligent legal applications,’ that is, applications that can render expert legal advice or decision making based on big-data analytics and without human interference, are still limited (Sourdin, 2018).

Central to the smart court is the human-computer interaction that results from integrating different technological applications supported by algorithms and big-data analytics into the judicial process. These applications range from systems that can automatically prompt similar cases as a reference for judges, to systems that can process and cross-examine all collected evidence, to ones that can automatically detect contradictions or relevant information for the judge to review (Cui, 2020). Ultimately, it is still the judge that adjudicates, albeit with the aid of technology.

Following the 2017 AI Plan, there are different degrees of smart courts. Some are more ‘intelligent’ than others. For example, there are three types of Internet Court, in Beijing, Guangzhou, and Hangzhou. These courts provide full online dispute resolution for limited types of e-commerce disputes (Xu, 2017). All activities, from the filing of a case through to the enforcement of a judgment, can be conducted online, with litigating parties and the judge all connecting remotely.

It is only later that these Internet Courts progressed to a ‘higher’ level of intelligence. Recently, the Hangzhou Internet Court introduced an AI judge that can take over simple functions during online court trial hearings, thereby assisting human judges, who still monitor the proceedings and make the final decision (Mei, 2019). According to its 2019 White Paper, the Beijing Internet Court developed an intelligent judgment generation system that is able to automatically generate standard instruments, as well as judgments, rulings, and settlements.

Hangzhou, where the PRC’s first smart court was established in 2017

Their Purpose

The 2017 SPC Opinion on Accelerating the Building of Smart Courts (translation here) explains that the purpose of judicial informatization and smart courts is to achieve the following judicial reform goals of making the judiciary more efficient and improving its transparency, consistency, and even autonomy from unwanted internal and external interference.

Remarkable is that technologies are treated almost like a ‘cheat code’ to bypass genuine, structural reforms, which requires an internalisation of norms and changes in behaviour that take a lot more time and effort. Introducing applications that force behavioural change is easier.

However, Chinese scholars are less confident. Smart courts and judicial informatisation are primarily framed as set to improve judicial efficiency and consistency. The advantages can be considered as evident, yet a review of the literature shows that there are doubts they can help achieve the ultimate aim: namely restoring the faith in and credibility of justice.

Efficiency

Efficiency (more output for less input) is low-hanging fruit and is therefore often mentioned as one of the advantages of these smart systems. Automation and digitisation will make the judicial process run smoother and faster, at a lower cost. In general, the efficiency benefits of judicial informatisation are left unquestioned (Guo 2017; Pan 2017; Qian 2018).

Chen and Sun (2019) show that digitisation has only gone so far, and that many judicial institutions have developed isolated data-silos. Many judicial departments have their own databases, but due to secrecy requirements, this data barely moves around between judicial organs. Additionally, for the data to be useful it still needs to be manually selected, cleaned, interpreted, and then finally labelled; increasing the workload of judicial officers after a case is done.

However, Wang (2019) notes that this efficiency discussion is only relevant for ‘traditional technology’, whereas smart technology driven by algorithms and big-data analytics are aimed to achieve much more, such as more accountability, more consistent adjudication, better monitoring and supervision of cases etc. The implications go far beyond an expedited judicial process.

By equivalating efficiency with “a more just and fairer judiciary”, reform goals of a more abstract level are implicitly achieved despite not being explicitly addressed. Technology is not a ‘magic weapon’ that will suddenly help achieve, for example, judicial credibility and fairness. An efficiently automated judiciary, does not, in and of itself, constitute a credible and just judiciary.

Consistency

A major issue plaguing the Chinese judiciary has been inconsistent adjudication, caused by the relative vagueness of laws and different interests trying to influence the judicial decision-making process to the detriment of consistent application of law (Ahl, 2019; Ng & He, 2017). Alongside previous judicial reforms (Ahl, 2014; Ahl & Sprick, 2017), smart courts are expected to enhance consistent adjudication or “similar judgments in similar cases” (同案同判).

Judicial databases feed into applications that conduct big-data analyses to provide adjudicating judges relevant references, or warn them that their judgment is deviating too much from the average judgment of previous, similar cases. Consistency is thus achieved, partly through automation, but also through the supervision of adjudication judges by these applications.

This has worried scholars. Technology should not be more authoritative than the human judges themselves (Y. Liu, 2019). Substantive justice is related to considering the unique circumstance of a case. Automated systems cannot maintain this balance between staying consistent while also considering unique factors. This is only something that human judges with sufficient judicial discretion can achieve. ‘Prefab’ judgments via nearly automatized decision-making would severely damage this (Pan, 2018)

Sun (2019) and Wang (2019) foresee the end of judicial discretion by this fully technologically embedded judicial process that minimises human interference. Judges would become screening bureaucrats that only concern themselves with inputting the right information in the automated system and reviewing its output.

The judicial system risks surrendering its power to technology, shifting the nexus of decision-making power to technical expertise. Judicial pluralism will be endangered by an exaggerated focus on uniformity and automation (P. Liu & Chen, 2019).

This can lead to ‘technological alienation’. Litigating parties can become frustrated by rigid automated system deciding over their cases, subverting the reform goals of restoring judicial credibility and faith (Jiang, 2019; Y. Liu, 2019).

Technology is being heralded as the bringer of a modern, efficient, and consistent judiciary. While this might be the case in most instances, a review of the literature shows the other side of the medal: The instrumental gains of judicial informatisation are no guarantee for a fairer and more credible judiciary.

What is clear from the literature is that judicial automation and digitisation needs to be accompanied by genuine reforms. ‘Cheating’ only gets one so far.

Straton Papagianneas explores China’s smart courts in the course of his PhD at Leiden University. Under the supervision of Dr. Rogier Creemers, he is part of the project called “The Smart State: Law, Governance and Technology in China”. Find him on LinkedIn here and follow him on Twitter.

Ahl, B. (2014). Retaining Judicial Professionalism: The New Guiding Cases Mechanism of the Supreme People’s Court. The China Quarterly, 217, 121-139. doi:10.1017/S0305741013001471

Ahl, B. (2019). Judicialization in authoritarian regimes: The expansion of powers of the Chinese Supreme People’s Court. International Journal of Constitutional Law, 17(1), 252-277.

Ahl, B., & Sprick, D. (2017). Towards judicial transparency in China: The new public access database for court decisions. China Information, 32(1), 3-22. doi:10.1177/0920203X17744544

Cui, Y. (2020). Artificial Intelligence and Judicial Modernization. New York: Springer Publishing.

Guo, S. (2017). Informatisation of the Judicial Process – Preliminary Study of Building Courts for the Internet Age (司法过程的信息化应对———互联网时代法院建设的初步研究). Jinan Journal (暨南学报)(10), 25-32.

Jiang, Q. (2019). The Scope and Limits of using AI in Judicial Adjudication ( 论司法裁判人工智能化的空间及限度). Academic Exchange (流)(2), 92-104.

Liu, P., & Chen, L. (2019). The Datafied and Unified Evidence Standard (数据化的统一证据标准). Journal of the National Prosecutors College (国家检察官学院学报)(2), 129-143.

Liu, Y. (2019). The Theory and Practice of Modernization of Trial System and Trial Capacity in the Era of Big Data (大数据时代审判体系和审判能力现代化的理论基础与实践展开). Journal of Anhui University (安徽大学学报)(3), 96-107.

Mei, Z. (2019, 14.06.2019). Hangzhou Internet Court Pilot Application of “AI Assistant Judge” (杭州互联网法院试点应用“AI助理法官”). Hangzhou News (杭州新闻). Retrieved from https://hznews.hangzhou.com.cn/jingji/content/2019-06/14/content_7210416.htm

Ng, K. H., & He, X. (2017). Embedded Courts: Judicial Decision-Making in China. Cambridge: Cambridge University Press.

Pan, Y. (2017). The Value and Position of AI Application in the Judicial Field(人工智能介入司法领域的价值与定位). Current Affairs Observations (时事观察)(10), 101-106.

Pan, Y. (2018). Analysis of Integrating AI into the Judicial Field (人工智能介入司法领域路径分析). Eastern Legal Studies (东方法学)(3), 109-118.

Qian, D. (2018). China’s Process of Judicial AI: Function Replacement and Structural Enhancement (司法人工智能的中国进程:功能替代与结构强化). Legal Review (法学评论)(5), 138-152.

Sourdin, T. (2018). Judge v. Robot: Artificial Intelligence and Judicial Decision-Making. UNSWLJ, 41, 1114.

Sun, D. (2019). Knowledge Deconstruction and Corresponding Logic of China’s Criminal Judicial Intelligence (我国刑事司法智能化的知识解构与应对逻辑). Contemporary Law (当代法学)(3), 15-26.

Wang, L. (2019). The Dangers and Ethical Regulation of Using Judicial big data and AI Technology (司法大数据与人工智能技术应用的风险及伦理规制). Law and Business Research(2), 101-112.

Xu, A. (2017). Chinese judicial justice on the cloud: a future call or a Pandora’s box? An analysis of the ‘intelligent court system’of China. Information & Communications Technology Law, 26(1), 59-71.

Entry bans, Exit bans

8. August 2020
Two new papers by Jasper Habicht

States reserve the right, derived from their sovereignty, to determine who can and cannot enter the country. While the entry of citizens to their home country is today enshrined in international law as inalienable human right, foreign nationals typically do not possess the right to enter a country. With the recent spread of the novel coronavirus SARS-CoV-2, this fact is once again clearly demonstrated: EU citizens who had become accustomed to free movement and open borders within the Schengen area are suddenly confronted with quarantine measures and travel restrictions.

In order to curb the spread of the novel coronavirus SARS-CoV-2, the People’s Republic of China has imposed an entry ban as of 28 March 2020, which severely affects the entry of foreigners to the country. Visas and residence permits valid at the time of the entry ban’s entry into force cannot be used to enter China until further notice, and new visas will only be issued for certain necessary activities. Such an entry ban announced at short notice is a considerable encroachment on personal freedom and poses unexpected challenges for individuals, especially in the context of employment. How should one act as a foreign employee in this case? What are the possibilities of circumventing or even challenging the entry ban? What possibilities do employers have in cases where a foreign employee is unable to appear at work due to the entry ban?

Immigration at Pudong Airport in Shanghai featuring a “Belt and Road” Lane

The essay “The current ban on entry into the People’s Republic of China due to the COVID-19 epidemic and resulting problems in the context of employment” (Zeitschrift für Chinesisches Recht 27(1), 18-27; preliminary version available on SSRN) by Jasper Habicht places the entry ban in its legal context and attempts to provide a rough first assessment. It concludes that foreign nationals have no access to legal remedies against restrictions of their entry to China, before they entered the country. It also assumes that individual solutions based on mutual agreements are probably the best choice to solve labour disputes in the context of the current situation.

However, the People’s Republic of China not only restricts the entry of foreign nationals in certain circumstances, but also their exit. Exit restrictions of foreign nationals are also known in other countries in the context of criminal investigation or the persecution of administrative or criminal offences. However, in the case of China, exit restrictions may also be a result of civil litigation.

In recent years, literature has pointed to the problem of exit restrictions that may be imposed upon defaulting debtors in China. The Civil Procedure Law allows courts to impose exit restriction as a measure to enforce judicial decisions, but the Exit-Entry Administration Law extends this regulation to pending civil cases. The practice of courts to apply exit restriction as a form of injunction exhibits a number of problems: the legal basis is vague, the scope of application to legal persons is unclear and courts often conduct only a formal examination of applications. As their aim is not to directly safeguard assets in dispute, it is debatable whether exit restrictions should be classified as preservative measures as applied by courts. When a legal entity is a defendant in a civil case, exit restriction can be applied to almost any of its managerial staff.

Habicht’s article “Exit restrictions in the context of Chinese civil litigation” (Asia Pacific Law Review 27(1), 83–101) concludes that exit restrictions are a considerable impingement on personal freedom and should therefore only applied where no other, less stringent measure is available. In practice, however, they are imposed by Chinese courts in a quick and severe manner and legal remedies are opaque. As a result, a high degree of legal uncertainty evolves, which may well discourage foreign individuals and enterprises from investing in China.

Chinese Courts and Criminal Procedure: Post-2013 Reforms

29. July 2020
A new volume edited by Björn Ahl
Kunming Intermediate People’s Court

Although many regard the post-2013 era as a return to unchecked authoritarianism that undermined the law and institutions, the current administration has introduced groundbreaking institutional reforms. Many of them have brought about the somewhat counterintuitive result of increased institutional autonomy.

Björn Ahl has edited a book on Chinese courts and criminal procedure that focuses on the post-2013 era. It combines a wide range of analytical perspectives and themes in order to investigate questions that link institutional changes within the court system and legal environment with developments in criminal procedure law. 

The edited volume includes the following chapters:

1. Post-2013 Reforms of the Chinese Courts and Criminal Procedure: An Introduction (Björn Ahl) (preliminary version already available on SSRN)

2. The Meandering Path of Judicial Reform with Chinese Characteristics (Yu Xiaohong),

3. Dimensions and Contradictions of Judicial Reforms in China (Fu Yulin),

4. How the Supreme People’s Court Drafts Criminal Procedure Judicial Interpretations (Susan Finder),

5.  Judicial (Dis-)Empowerment and Centralization Efforts: Institutional Impacts of China’s New Supervision Commissions (Meng Ye),

6.New Model of Habeas Corpus in China? Procuratorial Necessity Examination of Pre-Trial Custody (Alexandra Kaiser),

7. Live Witness Testimony in the Chinese Criminal Courts (Guo Zhiyuan),

8. Blood Money and Negotiated Justice in China (Kwai Hang Ng and He Xin),

9. Performance Evaluation in the Context of Criminal Justice Reform: A Critical Analysis (Michelle Miao),

10.  From Populism to Professionalism: The Media and Criminal Justice in China (Daniel Sprick). 

The book will be published by Cambridge University Press in 2021. A version of the introductory chapter is available on SSRN here.

Towards Genuine Dispute Solving: Taking the Heads of Administrative Agencies to the Courtroom

14. July 2020
An analysis by Nina Rotermund

Why is there so much ado about the responsible person of an administrative agency appearing in court? Nina Rotermund set out to look for answers in the latest interpretation of the Supreme People’s Court.

When the government of Zunyi City in Guizhou announced its plan to construct a highway close by, local residents had to fear expropriation. Mr. Ding decided to file a request with the Guizhou Provincial People’s Government for a reconsideration of the construction notice and its revocation. The provincial government rejected his reconsideration request because it considered the notice to be an internal administrative document. It argued that the kind of administrative actions that circulate within administrative organs do not directly affect the rights and obligations of a citizen, legal person or other organization outside the administration. Therefore, it rejected the reconsideration request. So, Mr. Ding filed an administrative lawsuit with the Intermediate People’s Court of Guizhou’s provincial capital Guiyang. During the court trial, the plaintiff presented the reasons and evidence supporting the revocation of the provincial government’s reconsideration decision. Surprisingly, Guizhou’s deputy governor, Mr. Chen, responded to the claims in court in person. The news of him attending the trial went viral. Mr. Chen confirmed that he participated in the trial in person to signal the government’s respect for the people’s rights and interests. He emphasized that the government accepted public and judicial monitoring.[1] Whereas making statements in administrative trials is usually a rather short part, the entire exchange in this trial lasted for an hour.[2]

Li Chaoyang vs. Xixia County (Henan Province)

This example highlights the symbolic meaning that is attached to the presence of the responsible person of an administrative agency in court. People, legal scholars, and politicians all attach great importance to the appearance of the responsible person of an administrative agency in court. But why does it seem to be such a big event at all?

Before the revised Administrative Litigation Law (ALL, with translation here) became effective in 2015, in general, administrative officials usually refused to appear in court and only sent their lawyers as representatives. Besides the regular administrative work, attending administrative trials seemed to be unworthy and a waste of resources. Traditionally, in China, it was common for people not to fight with magistrates (民不与官斗).[3] Rather, magistrates were regarded as taking care for the people like parents for their children (父母官).[4] This conviction still seems to be present somehow.

In 2011, Jiang Bixin, then vice-president of the Supreme People’s Court (SPC), emphasized that the presence of the responsible person of an administrative agency in court was an effective means to resolve the dispute between the people and the government and to understand the mood and emotions of the people.[5] In a similar vein, the State Council had also underlined its support for monitoring the lawful actions of the administration. It indicated that administrative personnel usually lacked legal knowledge, although it was essential to abide by the laws. Attending administrative trials seemed to be an excellent way to learn a lesson.

However, as mentioned before, the enthusiasm about the responsible person of an administrative agency appearing in court was not shared by the administration itself. In its 2015 annual report, the Supreme People’s Court (SPC) reflected on the situation of administrative trial work and found that main problems inhibiting successful adjudication in administrative litigation include leading cadres not treating administrative litigation correctly, not respecting the people’s right to sue, and not supporting courts in accepting administrative cases, as well as officials unwilling to appear in court or to make a statement, or to accept an unsuccessful outcome.

The political and legal proponents truly believed that appearing in court would benefit the resolution of administrative disputes. Eventually, they came to dominate the drafting process of the ALL: The third paragraph of Art. 3 of the Administrative Litigation Law states that the responsible person of an administrative agency, their deputy, or a relevant employee of that agency shall appear in court to respond to the complaint against them. However, the ALL remains vague and does not provide any further details: Who is a responsible person in the administrative agency? In what kind of cases do they have to appear in court? Are there exemptions from that obligation? How does the court handle a situation when the responsible person refuses to appear in court?

The latest Interpretation of the SPC concerning the application of the ALL (2018 SPC Interpretation, with translation here) offers answers. Its Art. 128 defines the “responsible person of an administrative agency” as either the head or their deputy or even a person charged with special responsibilities. According to the second paragraph of Art. 128, besides the responsible person, one or two litigation representatives can respond in court. But the head or their deputy has to appear unless they have a good reason for their absence. In that event, they shall authorize a relevant employee to attend. However, they are not allowed only to send a lawyer to participate in the trial.

Moreover, Art. 129 determines that the people’s court can propose in writing to the agency that the responsible person is to appear in court when the case involves significant public interest, generates enormous publicity, or is likely to cause a mass incident. The people’s court shall indicate that attendance is mandatory in the their notice, according to the second paragraph of Art. 129. Besides, Art. 132 stipulates that the court shall document any misconduct in the ruling and send a recommendation to the relevant agency in case the responsible person or the relevant employee refuse or fail to attend the hearing themselves and only authorize a lawyer to attend.

The SPC’s Provisions were necessary because of various regional differences in the interpretation of the Law. For example, in 2016, Li Huai from the University of Wuhan had looked at normative documents of about 51 local governments that specify in which cases the head of the alleged administrative agency should or must attend the trial. He indicates that local decisions focus on different aspects such as the significance of a case, the year of its filing etc. to determine when the responsible person must appear in court.[6] Unfortunately, Li Huai’s analysis offers no answers whether how many responsible persons actually appear in court. Some statistics of lower-level courts illustrate the impact of the system of responding to court proceedings. But the numbers are not representative for the entire country. For example, the government in Hangzhou presented some results. In 2017, the rate of appearance was still about 37,7% whereas in 2018, it increased to about 69.8% because the Standing Committee of the Hangzhou Municipal People’s Congress introduced supervision mechanisms. Their aim was to foster a change of thinking from “I have to appear in court” towards “I want to appear in court”.[7] In their study about the appearance rate in Mudanjiang City in Heilongjiang, intermediate people’s court judges Liu and Jiang conducted statistics and concluded that the appearance rate reached 100%, but the rate to make a statement was lower. For instance, in 474 administrative cases filed in 2017, the appearance rate was 100%, but only 69 representatives of the administrative agency made a personal statement, which account for 14,6%. They assume that the administrative representatives are afraid of making mistakes when they express their opinion. They do not want to be responsible for negative legal consequences or of losing the lawsuit.[8]

Still, the local differences underline that a nation-wide and uniform system was still lacking. Therefore, since 2018, the Supreme People’s Court conducted pilot work in Beijing, Shanxi, Chongqing, Jilin, Fujian, Hubei, and other places. It also collected opinions of the high courts, and suggestions of some front-line judges of the basic and intermediate people’s courts. Interestingly, it took 12 draft versions of the “Provisions on several issues concerning the responsible person of the administrative agency appearing in court” (Provisions, translated here), that include only 15 articles, until the final Provisions where agreed on.

Why are the Provisions necessary on top of the official 2018 interpretation? Was it not detailed enough? What are the differences between Section Nine of the 2018 SPC Interpretation (Art. 128-132), and the SPC provisions issued in March this year? The obvious answer is that the provisions constitute a special judicial interpretation intending to facilitate legal practice and to improve the application of the ALL (see Zhang 2020). In essence, the Provisions correspond to Section Nine of the 2018 SPC Interpretation, but the ALL and the 2018 SPC Interpretation are not as explicit as the Provisions, which the table below highlights.

Comparison of the 2018 SPC Interpretation and the Provisions:

2018 SPC Interpretation, Section 9Provisions July 1, 2020
 Art. 1 I: The responsible person must appear in court in first, second, and retrial proceedings, according to Art. 3 III of the ALL, exercise litigation rights and perform litigation obligations. II: The responsible person of an internal organization of the administrative agency authorized by the laws, rules, and regulations to exercise administrative power independently, [or the responsible person] of a dispatched agency or other organization shall appear in court. III: If it is added as another defendant and the plaintiff or defendant do not agree, the people’s court shall add the administrative agency as a third party, the responsible person shall appear according to the preceding paragraph.
Art. 128 I: The responsible person of an administrative agency” is either the principal or deputy or another person charged with special responsibilities. II: One or two litigation representatives can attend in addition; a relevant employee shall replace the principal or deputy; a lawyer as the only representative is not allowed.Art. 2 I: The responsible person includes the principal of the agency or deputy or another person in charge of the enforcement of the alleged administrative action or another responsible person. II: The responsible person of an entrusted organization or the lower-level administrative agency is not the responsible person who must appear in court.
 Art.  3 In administrative cases with co-defendants, the administrative agencies can consult to determine the responsible principal who must appear in court, or they can let the court decide.
Art. 129 I: Attendance is mandatory in the cases with a significant public interest, generating enormous publicity, possibly leading to mass incidents. II: The people’s court has to specify if appearance is mandatory in its notice for the agency. III: If the responsible person cannot appear, they have to give a proper reason, and the agency has to submit a statement that is sealed. IV: In case of refusal, the court may offer judicial recommendations.Art. 4 I: In cases involving significant public interests such as food and drug safety, the protection of the ecological environment and resources and public health safety, or, in cases generating enormous publicity, possibly leading to mass incidents, the people’s court must notify the responsible person to appear in court. II: In one of the following circumstances, the responsible person has to appear in court, the people’s court may notify the responsible person to appear: The alleged administrative action involves significant personal and property rights of the citizen, legal person or other organization,Cases concerning administrative public interest litigation,Normative documents of the higher-level agency require the responsible person of the agency to appear in court,Other circumstances where the people’s court deems it necessary to inform the responsible person to appear in court.
Art. 130 I: The relevant employee is an employee on the national administrative staffing or any other employee fulfilling their duties in accordance with the law. II: Any employee of the legal affairs department of the local people’s government or of the specific department taking the administrative action may be deemed as the relevant employee.Art. 10 I: The relevant employee specified in Art. 3 III of the ALL refers to staff members with special administrative functions and powers in the agency. II: Employees of organizations or subordinate administrative agencies entrusted by another administrative agency to exercise administrative functions and powers may be regarded as relevant employees. III: The people’s court shall refer to Art. 6 II of these Provisions to examine the identification materials of the relevant employees.
 Art. 5 I: The people’s court shall inform the responsible person of the agency about matters like their rights and legal obligations and the related legal consequences. II: When the court notifies the responsible person of an agency to appear in court, it shall send the notification letter three days before the hearing starts. It shall also inform the responsible person of the negative legal consequences if they do not appear in court III: If the agency requests to replace the responsible person that must appear in court before the hearing, the people’s court shall allow it.  
Art. 131 I: The administrative agency must to submit materials of identification. II: A relevant employee must submit a power of attorney sealed by the administrative agency.Art. 6 I: The responsible person that appears in court shall submit their identification documents before the hearing. The identification documents shall explicitly say the name, position, and other necessary information of the responsible person and shall be sealed by the agency. II: The people’s court shall examine the identification documents. If it deems that the conditions are not met, it shall notify the agency to make corrections. If they do not correct or supplement, which can influence the regular opening of the hearing, the people’s court regards this as if the responsible person did not appear.
 Art. 7 I: If the same case requires multiple hearings at the same instance of trial, it can be regarded as fulfilling the duty to appear in court when the responsible person appears in the first court hearing unless the court notifies them to appear again. II: If the responsible person appears in court in one trial of the procedure, it does not exempt them from their duty to appear in other hearings.
 Art. 8 I: Under one of the following circumstances, the responsible person as prescribed in Art. 3 III of the ALL cannot appear in court: Force majeure,Accidents,They need to perform official duties that others cannot replace,Other legitimate reasons for failing to appear in court.
 Art. 9 I: If the responsible person has a proper reason, they have to submit the relevant evidence and seal it with the administrative agency’s stamp or have the principal of the administrative agency sign an approval. II: The people’s court shall examine the reasons and supporting materials explaining why they do not appear in court. III: If the responsible person of the administrative organ fails to appear in court for proper reasons, and the administrative organ applies for postponement of the hearing, the people’s court may allow it; the people’s court may also decide to postpone the hearing by its authority.
 Art. 11 I: Litigation participants shall exercise their litigation rights and perform their litigation obligations, abide by court rules, and consciously maintain litigation order according to law. II: The responsible person of the agency or the relevant employee entrusted by the agency shall make a statement, reply, submit evidence, debate, issue a final opinion on the situation of the case, and explain the normative documents on which it is based. III: If a responsible person appears in court, they shall express an opinion on the substantive settlement of the administrative dispute. IV: If the participants in the litigation or others disturb the order of the court by means like an insult, verbal abuse, threats, the people’s court shall stop them and deal with them according to Art. 59 of the ALL[14].
Art. 132 If the responsible person does not appear in court, or only send a lawyer, the people’s court shall record and specify in adjudicatory instruments the failure to respond and may propose that the relevant agency conduct disposition.Art. 12 I: In any of the following circumstances, the people’s court shall provide judicial recommendations to the supervisory organ of the administrative organ or the administrative agency at the next higher level of the administrative agency taking the administrative action: The responsible person fails to appear in court and does not explain the reasons or the reasons are unfounded.The administrative agency has proper reasons to request postponement of the hearing. After the people’s court approved it, and the hearing starts, the responsible person fails to appear in court without proper reason.Neither the responsible person nor the relevant employee of the agency appears in court.The responsible person withdrew from court without permission to leave.The people’s court asks the responsible person to explain the relevant issues during the hearing, but the responsible person refuses to respond, resulting in the failure of court proceedings. II: In the event, there is one of the circumstances; the court has to record and specify in the judgment the failure to respond.
 Art. 13 I: If a litigation party objects the circumstances of the administrative agency as mentioned in Art. 12 of these Provisions, the people’s court may specify it in the transcript of the court hearing without affecting the regular trial procedure. II: If the plaintiff refuses to appear in court on the ground that the administrative agency acts according to one of the circumstances of the first paragraph in Art. 12 of these Provisions, or withdraws from the hearing without the court’s permission, the people’s court can treat it like withdrawal. III: If the plaintiff clearly refuses to make a statement because the administrative agency has a circumstance of the first paragraph in Art. 12 of these Provisions or refuses otherwise resulting in the failure of trial proceedings and still does not state their opinion after the court has explained the legal consequences, the court can regard this as renouncing the right to make a statement, and they shall bear the corresponding legal consequences.
 Art. 14 The people’s court may disclose to the public through an appropriate form the situation of the responsible person appearing in court. II: The people’s court may regularly conduct statistics, analyses, and evaluations of the appearance of the responsible person in court within its administrative jurisdiction and report to the people’s congress at the same level or to the people’s government at the same level.
 Art. 15 These provisions shall be in effect as of July 1. 2020.
Translation by Nina Rotermund

At first glance, we can see that the Provisions provide details on the pre-trial and trial procedure concerning the appearance of the responsible person. For instance, the Provisions emphasize that the responsible person has to attend first instance, second instance, and retrial procedures (Art. 1), but it acknowledges that administrative officials have limited time resources. That is why, Art. 7 says that in the same case that requires multiple hearings at the same trial instance, it is acceptable if the responsible person appears in the first hearing. However, it stipulates that the obligation to appear in court affects all cases. Hence, responsible persons cannot excuse themselves if they appeared in one case in the first hearing but fail to appear in the first hearing of another case. The explicit mentioning of the court’s obligation to examine identification documents (Art. 6) reveals that it is not enough to send anyone to court but the right responsible person. In case the actual responsible person cannot appear in court, another relevant employee of the administrative agency can be designated, but their name and identification must be submitted to the court for the examination beforehand (Art. 10).

But besides these specifications, the core answer to initial questions seems to be hidden in the third paragraph of Art. 11: “If a responsible person of an administrative organ appears in court, they shall express an opinion on the substantive settlement (实质性化解) of administrative disputes.” The keywording is a substantive settlement that conveys a political message: The grievances of the people are taken seriously to preserve social order. The responsible person, their deputy or other relevant employees must be committed to genuinely solving the dispute. The trial in court provides the platform to enter into an active dialogue with the people.[9] If the responsible person or any other entrusted person does not appear without proper reason that was announced before the hearing started, the court can sanction the misconduct according to Art. 59 of the ALL. Sanctioning misconduct does not only include internal supervision of the supervisory administrative organ, or the higher-level administrative agency (Art. 12) but public control as well (Art. 14).

To sum up, the ado about the responsible person appearing in court is justified for three reasons: In terms of psychological impact, the appearance in court is a signal of respect for the people and their need. In terms of substantive justice, the Provision guarantees substantive rights by demanding substantive settlement of the dispute. In terms of procedural fairness, the Provisions drew from judicial practice and pilot work to provide the people’s courts with an encompassing catalog about how to deal with the rights and obligations of the litigation parties in the trial.

Nina Rotermund is a PhD Candidate and a lecturer at Cologne University’s Chair for Chinese Legal Culture. Her research focus is the 2015 revised Administrative Procedure Law, she also explores the political system of the People’s Republic. Get in touch with her here or on LinkedIn.


[1] LI Huai (李淮), The appearance of administrative organ in court: status and prospect – Review of the third paragraph of Art. 3 of the new Administrative Litigation Law (行政机关负责人出庭应诉:现状与展望——兼对新《行政诉讼法》第3条第3款之检讨), in: Journal of the Administrative Institute of Gansu (甘肃行政学院学报) 2016, No. 4, 114-125, 116-117.

[2] MIN Jie (闵捷), Deputy governor appears in court – Guizhou ate the first “crab” (副省长出庭应诉,贵州吃了第一只 “螃蟹”), issued April 11, 2016; available at: http://www.gov.cn/xinwen/2016-04/11/content_5063062.htm [April 26, 2020].

[3] ZHANG Weiwei (张维炜), The legal revolution of overturning “noble officials and low people” – The birth of the administrative litigation law (一场颠覆“官贵民贱”的立法革命  — 行政诉讼法诞生录), in: The People’s Congress of China (中国人大) January 16, 2014, 21-23.

[4] LIU Hao (刘灏), The origin and meaning of “father and mother official” (“父母官”的由来与内涵), in: World of Literature and History (文史天地), August 4, 2007, 89.

[5] JIANG Bixin (江必新), Actively innovate the ideal system for an effective resolution of administrative disputes (积极创新理念机制 有效化解行政争议), issued April 27, 2011 in: Journal of the People’s Court (人民法院报), available at: http://fzzfyjy.cupl.edu.cn/info/1044/1794.htm [May 11, 2020].

[6] LI Huai (李淮), The appearance of administrative organ in court: status and prospect – Review of the third paragraph of Art. 3 of the new Administrative Litigation Law (行政机关负责人出庭应诉:现状与展望——兼对新《行政诉讼法》第3条第3款之检讨), in: Journal of the Administrative Institute of Gansu (甘肃行政学院学报) 2016, No. 4, 114-125, 116-117.

[7] HE Lei (何蕾), Delegate YU Yuemin talks about improving the ability of the responsible person of the administrative agency to appear in court – Promoting more prominently the head of administrative agency to appear in court (于跃敏代表谈提升行政机关负责人应诉能力 — 促行政领导出庭出声更出彩), in: Legal Daily (法制日报), March 15, 2019, available at: http://www.npc.gov.cn/npc/c30834/201903/20b975ca99c54fe19a3cc30efc042f75.shtml [July 12, 2020].

[8] LIU Zhongyuan (刘忠元), JIANG Lilong (蒋利龙), The responsible person of an administrative agency appearing in court – Taking Miganjiang City as an example (行政机关负责人出庭应诉研究———以牡丹江市为例), in: Journal of Heilongjiang Administrative Cadre College of Politics And Law (黑龙江省政法管理干部学院学报) , Vol. 6, 22-25.

[9] GAO Jiawei (高家伟), The appearance of the responsible person in court is a systemic innovation for fostering grassroot democracy (行政机关负责人出庭应诉作为持续稳定推进基层民主的一项制度创新), in: Administrative law enforcemtn and administrative trial (行政执法与行政审判), July 2, 2020, available at: https://mp.weixin.qq.com/s/BqsKN7AkecTDkzXBbUHMxg [July 7, 2020].

China’s “Campaigns + Law” Formula

25. June 2020

In the People’s Republic, campaigns are an established means for achieving political and legal aims. Since the beginning of the economic reforms, the country has developed rapidly economically, giving rise to both the constant development of the legal system and China’s attractiveness for workers from abroad. In response, two somewhat divergent strategies for handling immigration surged side by side, namely, campaigns and legislation.

In 2004, a fundamental revision of Chinese immigration law began. The old law could no longer meet the requirements resulting from the economic development that not only pushed the production of a detailed framework of administrative law, but also transformed China into a country of immigration. At the same time, reports about campaigns against illegal immigration and illegal employment of foreigners emerged in the media. In the context of these campaigns that targeted illegal entry, illegal stay and illegal employment of foreign nationals (so-called “sanfei” 三非 campaigns), the public was invited to report any suspicious activities related to illegal immigration to the police. Shortly before the revised law was promulgated, a large campaign against illegal immigration was deployed in Beijing.

The revision of immigration law and the deployment of campaigns against illegal immigration obviously took place during the same period, which suggests a relation between both. This raises the question: Why was it necessary to deploy campaigns when the law was already being revised? Apparently, the revision of the law would not suffice to strengthen control over immigration issues.

Jasper Habicht investigated the topic in detail in the course of his PhD project and found: law and campaigns are interrelated and dependent on one another.

His analysis of the internal structure of the campaigns and the embedding of the current immigration law in the context of Chinese administrative law showed that one the one hand, it was necessary to revise the law. On the other hand, its thorough implementation at the local level required the compliance of local police authorities. Because China is a centralistic state, control of the central level over local officials is often limited, especially in the police sector. Campaigns are an established means not only to communicate to the public that the central government has succeeded in strengthening control over a certain issue, but also to exert pressure on local police officials to comply with central-level norms.

The above-mentioned whistle-blower scheme, in the course of which the public reports illegal activities to the police, urges local police to act, resulting in higher compliance. The campaigns therefore not only tackle the issue of illegal immigration directly, but also by attacking regulatory failure or non-compliance of local police officials. On the other hand, the Chinese government understands that campaigns need to be legitimised by legal norms. Purely political campaigns would be harmful to the emerging economy.

In summary, it is precisely the combination of law and campaigns that is an effective means of governance in the context of immigration law.

Find Habicht’s careful examination of the role of campaigns in the context of China’s immigration law in his book “The Role of Campaigns in Law Enforcement: The Example of Sanfei Campaigns in Chinese Immigration Law” (e-book) recently published with Nomos. The print version can be purchased here.

https://www.nomos-elibrary.de/index.php?doi=10.5771/9783748907817

Taking Consumer Rights Protection Online

11. June 2020

The Chinese leadership has responded to the growing load of online-shopping related disputes by setting up a special type of court: The Internet Courts (互联网法院) not only specialize in issues brought about through the internet, but also conduct the entire proceedings online.

Since 2017, the Internet Courts in Hangzhou, Guangzhou and Beijing enable litigants to file a claim, attend the hearing, and receive the judgment all without needing to go to a court (check out the pioneer among them, the Hangzhou Internet Court, here). These digital courtrooms may be frequented for certain administrative and civil cases, such as lawsuits regarding sales contracts, including product liability matters, services and loans.

In his recent analysis, Max Planck Institute’s Benjamin Knut Pißler finds the Internet Courts to be a useful new tool in the hands of consumers to secure their rights. This new type of court, which ist likely to be replicated in several other cities in China in the near future, constitute the latest innovation in a rather young field of law in China with surging importance: costumer rights protection. As an addition to the legal mechanisms developed in the past decades, namely the individual actions, representative actions and public interest litigation, the Internet Courts appear to make lawsuits more accessible for the general public, “File a law suit in only 5 minutes”, as the Hangzhou Court advertises on its website.

However, in his analysis recently published in the German Journal of Chinese Law (article in German), Pißler also identifies fundamental problems. “There are some indications that defendants can avoid the proceedings relatively easily,” he points out, as it is unclear what the consequences are if the defendant does not act upon receiving the electronically transmitted notification that he or she has been sued. The relevant regulations laid down by the Supreme People’s Court leave several questions unanswered, and it remains to be seen whether for example a legal duty to regularly check emails and text messages will arise due to the fact that the Internet Courts rely on such communication channels instead of traditional mail.

Further, it is found that the courts are the result of a decision of the Communist Party and a judicial interpretation of the Supreme People’s Court and thus not created in line with the official procedures for founding courts, including a relevant motion on the part of the Standing Committee of the National People’s Congress.

Apart from their regular judicial adjudication work however, the Internet Courts also provide a field for experimentation with new technologies in court proceedings. As innovative institutions outside of the judicial bureaucracy of traditional courts, the Internet Courts could become the arena where the application of artificial intelligence in court decisions, which is vigorously researched in China, may find a testing zone, Pißler indicates.

Read Benjamin Knut Pißler’s Paper here (in German).

Carl Schmitt, Chinese Neo-Conservatism, and the Dark Sides of Constitutional Borrowing

25. May 2020
Cover of the Chinese edition of “Political Theology”, Shanghai Renmin Chubanshe, 2015. The text at the bottom introduces Schmitt as “the most controversial political thinker of the twentieth century” and “Europe’s last public lawyer”. “No matter whether one is a political thinker on the left, the right, or in between”, the text claims in an ominous tone, “it will be equally difficult to avoid his thoroughly paradoxical and dangerous intellectual spectre”.

If, at the time of Carl Schmitt’s death in 1985, one had by some unknown premonition declared that the enfant terrible of twentieth-century German Staatsrechtslehre would soon become a major source of inspiration for twenty-first-century Chinese neo-conservatives’ theorisation of China’s party-state…well, then most people would have dismissed this prediction out of hand as a plainly ludicrous thought. Yet, strangely (and perhaps disconcertingly), this is precisely the role that was assigned to the erstwhile “crown jurist” of the Reich in the past two decades. That the “wisdom of this dead Nazi”, as Martti Koskenniemi put it unforgivingly, now serves as a conceptual (and, for some, quasi-metaphysical) guidance in the interpretation of China’s constitutional order is no longer a secret, as attested by a growing body of research. 

Lucas Brang’s new paper (free draft here) taps into this ongoing debate about Schmitt’s unexpected reemergence to global intellectual prominence. Shifting between intellectual history, conceptual analysis, and constitutional theory, Brang traces Schmitt’s influence on Chinese liberal, left-leaning, and neo-conservative legal theorists. Rather than postulating a straightforward bearing on Chinese theoretical debates, however, his article finds that Schmitt’s persona functions as a kind of Jungian shadow projection – intellectual nemesis for concerned liberals, spiritus rector for neo-authoritarians – and hence leads to a variety of ideological performances of mutual suspicion. Likewise, Schmitt’s oeuvre, rather than being studied or adopted in its entirety, serves as a conceptual toolbox that lends itself to different normative projects.

Focusing in particular on Schmitt’s impact of the school of “political constitutionalism”, Brang shows how different authors employ different “strategies of reception” to make sense of Schmitt’s anti-liberal “challenge” and use of his terminological arsenal. For instance, Chen Duanhong draws on Schmitt’s constitutional theory for a “decisionist” and “existentialist” reading of the preamble of the Chinese constitution, thus providing a theoretically sophisticated view of party-leadership as China’s “fundamental law” and core constitutional value. Jiang Shigong, on the other hand, seems to adopt the Schmittian approach of “thinking in concrete orders” in his sociological account of China’s “unwritten constitution”. Gao Quanxi, finally, in a throwback to Ernst-Wolfgang Böckenförde’s post-war inquiry into the political preconditions of a liberal polity, attempts what Brang describes as a “conceptual inversion” of the Schmittian paradigm of the exception.

On the whole, the paper suggests that the history of Chinese political constitutionalism and the Chinese reception of Carl Schmitt is essentially one of an intellectual co-evolution – which serves as a stark reminder of the often-unexpected paths of contemporary legal globalisation.

You can find the paper published in the latest issue of the Cambridge University Press Journal Global Constitutionalism here. A free draft PDF ist online here.