Activist Lawyers in Post‐Tiananmen China

What do the activities of twenty‐first‐century Chinese lawyers tell us about the origins and prospects of legal activism under authoritarianism? This essay fits China's Human Rights Lawyers (2014) into an emerging literature on authoritarian legality. The book offers an insider view of a circle of lawyers interested in using China's newly accessible courts as a platform for social activism. It highlights the difficulty of rights lawyers’ day‐to‐day work against the backdrop of the Chinese state's long‐term experiment in how to harness the power of law without ceding political control.     

Construction of a policy arena: the case of public health in France

In this article we examine the transformation over the past two decades of public health as a policy arena in France from a backwater of little interest to politicians, bureaucrats, the media, and the public into a central preoccupation of the state. Recent dramatic health crises (the scandal over HIV-contaminated blood, mad cow disease, etc.) have substantially raised the political profile of (and corresponding state investment in) public health in France, offering opportunities and incentives for political actors not traditionally associated with public health to enter the field and challenging more traditional actors to galvanize themselves and compete for this newly attractive policy terrain. We use the occasion of the passage of a public health law in 2004, labeled by its proponents as the "first" public health law in one hundred years, to show how, in a context of national struggle to contain both risks and costs, "public health" -- chameleonlike -- has taken on various meanings and forms to serve highly conflicting political interests.     

Quarantined judicial expansion: The environmental legal entrepreneurship of Chinese courts,procuratorates, and NGOs

Although judicial empowerment has become increasingly common worldwide, the expansion of judicial powers in authoritarian countries faces persistent obstacles, such as institutional dependence, lack of political clout, and the repression of civil society. Through empirically examining three cases of environmental legal entrepreneurship under China's new public interest litigation (PIL) system, this study aims to reevaluate the patterns and limits of judicial expansion under authoritarianism. It finds that Chinese judges, prosecutors, and NGOs have been able to leverage the PIL system and their respective institutional advantages to substantially expand judicial oversight on eco-environmental protection. However, the state has established boundaries for such legal entrepreneurship in terms of subject matter, institutional autonomy, and geographic reach, effectively confining them within political spheres considered unthreatening to the regime. Such quarantined judicial expansion shields relevant actors from authoritarian governments' tendency to suppress legal mobilization and thus may be a more viable form of judicial expansion in nondemocratic settings.     

Caught in an Authoritarian Trap of Its Own Making? Brazil's ‘Lava Jato’ Anti-Corruption Investigation and the Politics of Prosecutorial Overreach

The negative and corrosive impacts of corruption in the fields of economics, politics, and law are widely discussed. Less understood are the potentially negative impacts of anti-corruption struggles and strategies themselves. This article presents a case study of Brazil's ‘Car Wash’ (‘Lava Jato’) scandal from a legal and political perspective. Although the subsequent Operation Car Wash investigation was widely regarded as remarkably successful, supposedly buttressing the rule of law through high-profile prosecutions of leading politicians and businesspersons, the article argues that legal due process, wider constitutional law, and the political process were undermined. While the use of media leaks to strengthen the investigation proved tactically successful, when coupled with new legal instruments it undermined the presumption of innocence and contributed to a climate in which political and legal debates themselves became increasingly subordinated to simplistic polarizing anti-corruption discourses, thereby undermining an already fragile political and institutional environment.     

Mapping the development of China's data protection law: Major actors,core values,and shifting power relations

This Article seeks to map the possible paths of the development of China's data protection law by examining the changing power relations among three major actors - the State, digital enterprises and the public in the context of China's booming data-driven economy. We argue that focusing on different core values, these three major actors are the key driving forces shaping China's data protection regime. Their dynamic and multidimensional power relations have been casting the development of China's data protection law with various uncertainties. When persuing different, yet not always conflicting values, these three major actors may both cooperate and compete with each other. Based on our careful analysis of the shifting power relations, we identify and assess three possible paths of the development of China's data protection law. We are much concerned that the proposed comprehensive data protection law might be a new attempt of the State to win legitimacy abroad, while actually trying to reinforce massive surveillance besides economic goals. We argue that a modest alternative may be that this law might show some genuine efforts for protecting data privacy, but still with poor enforcement. Last, we argue that the most desirable development would be that this law could provide basic but meaningful and effective protection for data privacy, and lay a good foundation for further development.     

Relational legal consciousness in the one-child nation

This article draws from a qualitative study of people's responses to China's population control policies to analyze the relational formation of legal consciousness within and across different types of relationships. It demonstrates that our expectations of others and theirs of us regarding how to respond to law change significantly when we situate ourselves in different types of relationships. The fluid boundaries of relationships in Chinese society also make it essential to think and plan relationally and holistically across different types of relationships to come up with strategies to resist or comply with the law. During this process of relational formation of legal consciousness, law interacts with and reshapes social norms to determine the (un)availability of alternative mechanisms based on the individual's social and financial status.     

Crossing the Rubicon? The implications of RCEP on anti‐monopoly enforcement on dominant E‐commerce platforms in China

The rapid development of e-commerce has markedly influenced the daily lives of the Chinese people over the last two decades. The rise of dominant e-commerce platforms and accompanying alleged abusive practices may impair competition and cause harm to online consumers. Although China's Anti-Monopoly Law and E-commerce Law provide a legal basis to deal with these practices, Chinese competition regulators rarely undertake investigations into these platforms. The inability of the law to keep pace with digital advancements is compounded by outdated rationales and traditional practices. China's problems relate to e-commerce competition and its regulation, such as the old-fashioned anti-monopoly rationale and some abusive practices conducted by dominant platforms. The Regional Comprehensive Economic Partnership (RCEP), concluded in late 2020, provides specific provisions regarding e-commerce and competition, requiring its 15-member states to promote a competitive and integrated e-commerce market in the region. This article critically examines the potential implications the RCEP may have on China's anti-monopoly enforcement of dominant e-commerce platforms and argues that, despite China's recent efforts to regulate e-commerce competition, these developments are still insufficient to fulfil the requirements of the RCEP.     

Singapore's Culture War over Section 377A: Through the Lens of Public Choice and Multilingual Research

The 2007 debate over the retention of Singapore's male sodomy law provision set off a vigorous and passionate public debate reminiscent of the US culture war. However, the Singapore government's final decision reflects an interesting compromise. The law was retained, but its moral content was severely curtailed. This article critically examines this episode and explores the political dynamics driving the compromise. Enriching public choice theory on interest group capture, this article argues that the ruling party's political dominance coupled with limited but real political competition is surprisingly effective in aligning the government's position with the preference of the majority despite concerted pressure from well‐mobilized minority interest groups. Current legal scholarly work on this debate has focused on the “vigorous debate” in the English‐language forums. In this article, the examination of the contemporaneous discourse in Chinese and Malay newspapers enables a more accurate and comprehensive appreciation of this culture war episode.     

The Indirect Influence of Politics on Tort Liability of Public Authorities in English Law

The scope of negligence liability of public authorities in English law has undergone significant changes in the Post‐World War II period, first expanding and then, from the mid‐1980s, retracting. This article tries to explain why this happened not by focusing, as is common in most commentary on this area of law, on changing doctrinal “tests,” but rather by tying it to changes in the background political ideology. My main contention is that political change has brought about a change in the law, but that it did so by affecting the scope of the political domain, and by implication, also the scope of the legal one. More specifically, I argue that Britain's Post‐War consensus on the welfare state has enabled the courts to expand state liability in accordance with emerging notions of the welfare state without seeming to take the law into controversial territory. When Thatcher came to power, the welfare state was no longer in consensus, thus making further development of legal doctrines on welfarist lines appear politically contentious. The courts therefore reverted back to older doctrines that seemed less politically charged in the new political atmosphere of the 1980s.     

Punishing Bodies,Securing the Nation: How Rule of Law Can Legitimate the Urbane Authoritarian State

Although authoritarian rule of law may seem an oxymoron, strategic reconfigurations of the “rule of law” can produce acceptance of law that observes procedure while erasing rights. By bringing into conjunction critical discourse theory and scholarship on the legal professions and political liberalism, this article shows how rulers can deploy rhetoric and legislation to produce derogations from the liberal content of rule of law while sustaining a state legitimacy built on claims to state realizations of rule of law. A close analysis of Singapore's Vandalism Act shows that silencing the critique of lawyers and constraining the power of judges has been crucial to a legitimation of the surveillance and criminalization of dissenters. The consolidation of state power effected via law and discourse might be seen as making the nation a notional panopticon—corporal punishment, even if conducted behind prison walls, becomes instructive public spectacle conveying the state's seeming omniscience and monopolistic command of law.     

Mobilizing the Law in China: "Informed Disenchantment" and the Development of Legal Consciousness

This article critically examines the development of legal consciousness among legal aid plaintiffs in Shanghai. It is based on 16 months of research at a large legal aid center and in‐depth interviews with 50 plaintiffs. Chinese legal aid plaintiffs come to the legal process with high expectations about the possibility of protecting their rights; however, they also have only a vague and imprecise knowledge of legal procedure and their actual codified rights. Through this process of legal mobilization, plaintiffs' legal consciousness changes in two separate dimensions: changes in one's feelings of efficacy and competency vis‐à‐vis the law, and changes in one's perception/evaluation of the legal system. Put another way, the first dimension is “How well can I work the law?” and the second is “How well does the law work?” In this study I observe positive changes in feelings of individual efficacy and competency that are combined with more negative evaluations/perceptions of the legal system in terms of its fairness and effectiveness. The positive feelings of efficacy and voice provided by the legal process encourage labor dispute plaintiffs in the post‐dispute period to plan new lawsuits and to help friends and relatives with their legal problems. Disenchantment with the promises of the legal system does not lead to despondency, but to more critical, informed action. This study provides new evidence on the nature of China's developing legal system with a focus on the social response to the state‐led “rule of law” project.     

Explaining the variations in legal mobilization of environmental nongovernmental organizations in authoritarian China: A fuzzy set qualitative comparative analysis

Despite the growing literature on legal mobilization under authoritarianism, the variations of legal mobilization in authoritarian regimes have been less studied. Drawing on a fuzzy set qualitative comparative analysis of 175 environmental public interest litigations from 2009 to 2019, as well as in-depth interviews with environmental nongovernmental organizations (NGOs) representatives, this is the first article to present how organizational, political, legal, and social forces (which are demonstrated by six conditions: capacity, political embeddedness, political endorsement, access, legal stock, and alliance) combine to explain the variations of NGOs' environmental legal mobilization through the use of strategic and nonstrategic litigation in authoritarian China. Although the state's policy to pluralize regulatory actors to improve environmental governance has set up a relatively friendly institutional backdrop for environmental legal mobilization, this study finds that political forces such as the relationship between NGOs and the state and the ambivalent attitudes towards environmental protection between central and local government have significantly influenced the behavioral patterns of NGOs' legal mobilization. Moreover, this study uncovers four types of legal mobilization of Chinese environmental NGOs: allied mobilization, progressive mobilization, steered mobilization, and symbolic mobilization. This study enriches the understanding of the behavioral patterns of nonstate actors in legal mobilization in authoritarian regimes and beyond.     

The Emergence of Penal Extremism in California: A Dynamic View of Institutional Structures and Political Processes

This article examines legal and political developments in California in the 1970s and early 1980s that led to extreme changes in the state's use of imprisonment. It uses historical research methods to illustrate how institutional and political processes interacted in dynamic ways that continuously unsettled and reshaped the crime policy field. It examines crime policy developments before and after the passage of the state's determinate sentencing law to highlight the law's long‐term political implications and to illustrate how it benefited interest groups pushing for harsher punishment. It emphasizes the role executives played in shaping these changes, and how the law's significance was as much political as legal because it transformed the institutional logics that structured criminal lawmaking. These changes, long sought by the law enforcement lobby, facilitated crime's politicization and ushered in a new era of frenetic and punitive changes in criminal law and punishment. This new context benefited politicians who supported extreme responses to crime and exposed the crime policy process to heightened degrees of popular scrutiny. The result was a political obsession with crime that eschewed moderation and prioritized prison expansion above all else.     

Rule of Law with Chinese Characteristics: The Role of Campaigns in Lawmaking

China increasingly relies on its legal system to regulate a broad spectrum of social and economic activity. There is, however, widespread failure to observe the law, which periodically leads to social crises and popular unrest. The Chinese state is not, of course, alone in experiencing this, but it responds to enforcement failures in distinctive ways. This article examines one such response. In this article, we explore the role played by the enforcement campaign in the development of the Chinese legal system. We focus on one campaign in particular: the campaign that was waged between 2004 and 2007 to redress the chronic failure to pay wages. Chinese enforcement campaigns are not simply directed at securing greater compliance with existing law. They are integrally linked to cycles of law reform in the PRC. Whilst their main impact is on enforcement, they also have an important role in influencing the drafting of legislation and the interpretation of law. This article documents the impact of this campaign on the production of law: in speeding up the iterative process of lawmaking, interpretation, and implementation, with production of important reforms to existing labour law in 2007 and 2008. It is the strong “planned” nature of the campaign and its emphasis on state leadership of lawmaking and enforcement that continues to shape the development of China's particular version of the “rule of law.”     

中国宪法实施的双轨制

与许多西方国家的宪法实施模式不同,宪法审查并非中国宪法实施的主要方式。中国司法机关不能根据宪法直接审查立法的合宪性,而作为有权机关的全国人大常委会,也没有做出过宪法解释或宪法判断。这是中国宪法实施的真实状况,但不是中国宪法实施的全部。从比较法角度看,中国宪法更像一个政治纲领式的宣言,更多依靠政治化方式实施。伴随着法治化进程,中国的宪法实施逐渐由单一依靠政治化实施,过渡到政治化实施与法律化实施同步推进、相互影响的双轨制格局。宪法的政治化实施体现为执政党主导的政治动员模式,而宪法的法律化实施则是以积极性实施为主、消极性实施为辅的多元实施机制。在比较法的意义上,政治化实施和法律化实施的双轨制,可以为描述中国宪法实施提供一个理论框架。     

Judicial authority through the experiences of crisis

This article is concerned with law’s experiences and making sense of crisis. When we talk about law’s response to crisis, we refer to law not as an abstract set of rules but as an embodied and animated assemblage of relations and practices. This way, law needs to make sense of any crisis to respond to it. The article draws on cultural legal studies to explore the constitution of judicial authority in the context of a democracy in flux. The article relies on fieldwork data collected in the interviews conducted by the author with Lithuanian judges in 2019. Highest in more than two decades, public trust in the judiciary in 2018 indicated a remarkable achievement for Lithuania, a country whose judicial system had been in a state of flux since the end of the Soviet era. However, after an unprecedented and highly mediated judicial corruption scandal in 2019, the rates of public trust plummeted, uncovering complex dynamics between the image of courts, mass media, and the public. Against this backdrop, the article explores how judges make sense of crisis that develops on the intersections of provocative reality judging and formal judicial institutions. It shows how judicial authority is constituted in the conditions of crisis on the tension between law and culture. Emerging from a crisis of authority is the changing face of judging. A post-colonial vantage point and theatrical jurisprudence are used to respond to a development of a desire of power under a mask of rationality, objectivity, and universality. The article concludes by contemplating how this authority shapes our lifeworlds.

     

Government lawyers and the training of senior civil servants. Maintaining law at the heart of the French state

To assess the influence of law and jurists in the conduct of contemporary French state, this article examines the role of the Council of State at ENA (École Nationale d'Administration), the main school for top civil servants. Although the study reveals the decreasing part of law in the bureaucratic capital over the past fifty years, it also shows how government lawyers have resisted this downsizing process. The teaching of a subject called ‘legistics’ provides top officials with a different view of law. Dedicated to promoting the political utility of law, legistics complies with managerial values while it sticks to the Weberian model of bureaucracy. As a result of the introduction of legistics, new techniques of legal drafting have been spreading within French public administration. Legistics thus plays a role in the contemporary reshaping of public legal practices, as well as in the renewing of legal legitimacy in the reform of public affairs.     

The Chinese mafia: private protection in a socialist market economy

Gambetta's theoretical framework focuses on two important aspects directly relating to the birth and development of mafias, namely a demand for private protection and a supply of the same. In the Post-Mao era, China started its transition from a centrally controlled economy to a market-directed economy by adopting reform and opening-up policies. The widespread creation of property rights has exponentially enlarged the demand for protection. However, property rights are ambiguously defined in the Chinese legal system, and the state is unable and unwilling to provide efficient and sufficient law enforcement mechanisms for needy people because of the rampant corruption of government officials and the weak judicial system. In this case, the mafia that is interested in the private provision of protection developed into an alternative enforcement mechanism for ‘securing’ property rights in China's economic transition. The most important service offered by the mafia in China is not only to assist business enterprises in monopolising the market, but also to assist local government in China's economic reform.     

Relational legal consciousness in the punitive welfare state: How Dutch welfare officials shape clients' perceptions of law

With a growing number of strict obligations and harsh sanctions for welfare recipients, the Netherlands has increasingly become a punitive welfare state. This article looks at what this means for welfare clients and their commonsense understandings of the law. To analyze how welfare officials shape clients' legal consciousness, I draw on an online survey among Dutch welfare clients (N = 1305) and a correlation analysis. The findings show that there is a clear relationship between welfare clients' own legal consciousness and their assessment of welfare officials' beliefs about the law. However, not all elements of their legal consciousness are relationally influenced by the same factors. Also, clients' self-reported compliance behavior is less relationally influenced than other elements of their legal consciousness. This study adds to our understanding of the mechanisms that constitute the production of relational and second-order legal consciousness and it contributes to the development of new research methods to study people's perceptions of law.