Using the Law as a ‘Harmonious Weapon’: The Ambiguities of Legal Activism in Favour of Migrant Workers in China

Abstract

Legal mobilization has spread in China over the past 20 years and is generally considered by both activists and scholars as a way to advance democracy and rule of law. Focusing on the mobilization in favour of migrant workers and on politically moderate practices, which are both more frequent and widely held as more successful, I argue to the contrary that resistance and reproduction of political domination are mutually constitutive. Public interest litigation and administrative litigation appear as new forms of political participation that constitute an internal regulation to the authoritarian regime, thus contributing to explain the regime's capacity to adapt and its durability. This article also accounts for new strategies developed by some lawyers that shun the courts and use law to ‘empower civil society’ and that thus do not contribute to structural reproduction. Though activists are struggling to turn their strategies into more institutionalized practices, they remain an ad hoc mechanism of internal control.     

The Clash between Security and Liberty in the U.S. Response to Terror

This study examines U.S. public opinion on civil liberties and security in response to the politically pivotal events of September 11, 2001—what shape it is in, what shapes it, and what it shapes. Public opinion is a critical restraint on political and administrative action today because so many regulators, rule makers, and law enforcers are making decisions or advocating policies that directly affect the balance between liberty and security. The general importance that is popularly attributed to terrorism is gauged by its ranking among the most important problems. The ostensibly contradictory public attitudes toward civil liberties are analyzed, as is the supposed inconsistency between perceived personal impact and the general significance attributed to the attacks. The data rebut the allegation that the public is readily disposed to restrict civil liberties as the price of security. Findings show the public does not perceive a personal or immediate threat to civil liberties. The implications for further research and good governance are laid out.     

Who Inherits the State? Colonial Rule and Postcolonial Conflict

Postulating grievance‐based mechanisms, several recent studies show that politically excluded ethnic groups are more likely to experience civil conflict. However, critics argue that endogeneity may undermine this finding since governments' decisions to include or exclude could be motivated by the anticipation of conflict. We counter this threat to inference by articulating a causal pathway that explains ethnic groups' access to power independently of conflict. Focusing on postcolonial states, we exploit differences in colonial empires' strategies of rule to model which ethnic groups were represented in government at the time of independence. This identification strategy allows estimating the exogenous effect of inclusiveness on conflict. We find that previous studies have tended to understate the conflict‐dampening impact of political inclusion. This finding suggests that grievances have been prematurely dismissed from conventional explanations of conflict, and that policy makers should consider conflict resolution methods based on power sharing and group rights.     

Pluralism and the Hobbesian Logic of Negative Constitutionalism

According to an essentially Hobbesian account of political order, the claims of cultural and national minorities within a state to some form of constitutional or institutional recognition are morally suspect and politically undesirable. Underlying this Hobbesian logic is a particular understanding of the relation between law and politics. 'Negative constitutionalism' is focused primarily on limiting the damage government can do. However the pursuit of constitutional minimalism runs up against the challenges presented by deeply diverse political communities. By investigating the manner in which Hobbes has been invoked in arguments concerning the relation between the rule of law and the 'politics of recognition', I argue (i) that the distinction between the rule of law and politics is fundamentally unstable, and (ii) that in invoking Hobbes, modern theorists have missed an important element of Hobbes's own argument—namely, his appreciation of this instability. As an example, I examine the way Hobbes is used in some of John Gray's recent writings on pluralism and liberalism.     

Towards a professional civil service in post‐transition Romania

To what degree and under what conditions can a young democracy build a competent, politically neutral public bureaucracy? A crucial component of the transition from communist party rule to democracy is the creation of a professional civil service. Success along this dimension of state‐building generates administrative capacity: non‐elected public officials ensure the implementation of reforms initiated by political leaders. In the communist party‐led regimes of Eastern Europe, forging this new administrative class from its highly politicised predecessor took place as new democracies sought to overcome historical legacies and integrate with the European Union. A case study of administrative reform in Romania during the post‐1989 period suggests the importance of external influences in forming a civil service more closely adhering to the Weberian ideal of an expert, rules‐based bureaucracy. Through analysis of survey data from a nationally representative sample of the Romanian civil servants, the public bureaucracy has professionalised insofar as educational and training credentials rather than political affiliation are significant predictors of salary levels. Copyright © 2009 John Wiley & Sons, Ltd.     

The Influence of Partisan Motivated Reasoning on Public Opinion

Political parties play a vital role in democracies by linking citizens to their representatives. Nonetheless, a longstanding concern is that partisan identification slants decision-making. Citizens may support (oppose) policies that they would otherwise oppose (support) in the absence of an endorsement from a political party—this is due in large part to what is called partisan motivated reasoning where individuals interpret information through the lens of their party commitment. We explore partisan motivated reasoning in a survey experiment focusing on support for an energy law. We identify two politically relevant factors that condition partisan motivated reasoning: (1) an explicit inducement to form an “accurate” opinion, and (2) cross-partisan, but not consensus, bipartisan support for the law. We further provide evidence of how partisan motivated reasoning works psychologically and affects opinion strength. We conclude by discussing the implications of our results for understanding opinion formation and the overall quality of citizens’ opinions.     

Between the Letter and the Spirit: International Statebuilding Subversion Tactics in Burundi

This article explores the appropriation dynamics of international statebuilding in Burundi, with a focus on the period from 2010 to 2015. If international statebuilding is most commonly presented (and debated) as practices leaning towards the achievement of a liberal democracy, this article argues that it can also be used towards undemocratic ends. The central claim is the following: the (most) recent authoritarian trend observed in Burundi’s main political force in government, the National Council for the Defence of Democracy – Forces for the Defence of Democracy (CNDD-FDD), did not only occur against international statebuilding but also through its appropriation and, more specifically, through self-reinforcing subversion tactics of appropriation. The article conceptualizes these tactics, examines the factors of emergence and conditions of existence, and presents the main expressions along three major editorial lines of international statebuilding: pluralist democracy, vibrant civil society and respect of the rule of law.     

Does politics crowd out professional competence? The organisation of ministerial advice in Denmark and Sweden

The use of politically appointed ministerial advisors has increased noticeably in many Western countries, but we know little about how this development has affected the civil servants recruited on merit. The article asks whether political appointees accentuate or blur the line between politics and administration. Do political appointees take over political-tactical advice and leave policy advice to the permanent civil service, or do they cause permanent civil servants to be even more influenced by political considerations? And do political appointees make it easier or more difficult for the permanent civil service to be politically responsive? A Most Similar Systems Design comparison of Denmark and Sweden allows an assessment of the effects of political appointees. It is found that a large number of political appointees decreases functional politicisation of the permanent civil service; that functional politicisation tends to crowd out tasks related to more classic policy advice; and that functional politicisation increases political responsiveness.     

Sophocles'Antigone and the History of the Concept of Natural Law

This paper focuses on two related questions. The first of these is a general question. Where are the origins of the concept of natural law to be located in the history of political thought? The second is more specific. Sophocles puts into the mouth of the eponymous heroine of his Antigone an argument justifying her disobedience to an edict of her uncle Creon, who forbade her to bury her brother Polyneices. Does this argument involve an appeal to the concept of natural law? The paper takes issue with the claim, first made by Aristotle in his Rhetoric , that Sophocles' Antigone is indeed an early example of the application of the concept of natural law in political argument and debate. This interpretation of the political message of the Antigone is inconsistent with what we know about Sophocles' attitude towards the fundamental questions of Athenian politics in the classical era of Periclean democracy during the fifth century BC.     

Public Service Neutrality in Hong Kong: Problems and Prospects

Before 2002, Hong Kong's higher civil servants were required to play the dual role of quasi-ministers and civil servants. In such a context, can we make sense of the claim that Hong Kong's civil service has all along been politically neutral? What role has neutrality played in the governance of Hong Kong? Informed by Kernaghan's model of political neutrality and Oakeshott's idea of civil association, this article argues that the public service should not be regarded solely as an effective instrument of the government in power. In conclusion, this article proposes some institutional measures to strengthen the neutrality of the public service in Hong Kong and argues that properly understanding this will help prevent excessive or illegitimate partisan political power.     

Power-sharing negotiation and commitment in monarchies

While military and civilian dictators tend to rule through fear, absolute monarchies do not depend exclusively on it and can also derive legitimacy from the historical, cultural and religious roles they play. That opportunity provides absolute monarchs with an option (constitutional monarchy) that is unavailable to other types of dictators. On the one hand, the institutional flexibility of that option might facilitate negotiations between an absolute monarch and the regime’s elites. On the other hand, it might complicate power-sharing, as the monarch may fail to commit to the principle of non-interference, while the regime’s elites may attempt to disempower the monarch. By formalizing a power-sharing game between a monarch and the regime’s elites, this paper argues that the threat of civil disobedience contributes to the resolution of commitment problems and also explains the reasons some constitutional monarchs hold and on occasion exercise substantive political powers despite the fact that their ability to survive presumably depends on their commitment to non-interference.

     

The Kantian Liberal Peace (Revisited)

Democratic peace studies have traditionally identified Kantian "republicanism" with procedural democracy and largely ignored liberalism and constitutionalism, which are even more fundamental for Kant's reasoning behind the liberal peace. A closer look into his major political works reveals that peaceful relations are expected from states with the protection of individual freedoms (liberalism), the rule of law and legal equality (constitutionalism), and representative government (democracy). Only when all three constitutive elements are jointly considered can we uncover the multifaceted nature of Kant's approach to the domestic sources of international peace. In this way, we not only find that monadic and dyadic expectations are consistent with Kant's theory, but also that both normative and interest-based explanations for international peace can equally draw on Kant as their theoretical precursor. We further demonstrate that it is plausible to infer that the Kantian legacy is related to civil peace as well. The propositions we derive from our theoretical reexamination of the Kantian legacy are strongly supported in our quantitative empirical test. Moreover, constitutional liberalism, rather than democracy, shows to be both more central for Kant's theory and empirically more robustly related to international as well as domestic peace.     

Lobbying and (de)centralization

This paper presents a positive theory of (de)centralization of policy decisions in an international union -defined as a supranational jurisdiction that may exercise a policy prerogative on behalf of member countries. I build a benchmark model where national lobbies can coordinate (i.e. form a trans-national lobby) at no cost and show that lobbying does not affect the fiscal regime. On the other hand, when interest groups cannot coordinate, decentralization emerges as a political equilibrium with lobbying. Policy centralization hurts national lobbies by increasing competition for influence. At a constitutional stage, interest groups induce politically motivated governments to reject centralization. Three extensions show that this result depends on the level of cross-border externalities; the voting rule at the constitutional stage; and the details of the institutional decision mechanism under centralization.     

Politics by denunciation: Political whistleblowing against members of parliament in Italy

Judicial investigations into politicians are a fundamental component of politics, with these investigations often leading to public scandals. Yet, empirical evidence of the strategic determinants of judicial investigations is intrinsically hard to gather, a problem that has significantly limited the study of this important phenomenon. This paper studies the politics behind judicial investigations by leveraging new data on prosecutors’ informants in 1125 episodes of misbehavior of Italian MPs involved in different crimes (1983–2019). Results provide evidence in favor of a political use of denunciations for corruption crimes: when a party weakens, the likelihood that political enemies denounce past misbehavior of members of the weakened party increases, suggesting that the political use of denunciation is elastic to changes in the electoral performance. Furthermore, weakened MPs are more likely to be accused of misbehavior that happened a long time before the accusation, which further supports the argument that accusations are politically motivated.     

Rousseau's General Will: Freedom of a Particular Kind

Had Rousseau not been centrally concerned with freedom, some of the structural features of his political thought would be unaccountable. Above all, the notion of general will would not have become the core of his political philosophy. Rousseau's reasons for using 'general will' as his central political concept were essentially philosophical. The two terms of general will - 'will' and 'generality' - represent two main strands in his thought. 'Generality' stands for the rule of law, for civic education that draws us out of ourselves and towards the general (or common) good. 'Will' stands for Rousseau's conviction that civil association is 'the most voluntary act in the world', that 'to deprive your will of all freedom is to deprive your actions of all morality'. And if one could 'generalize' the will, so that it 'elects' only law, citizenship, and the common good, and avoids 'willful' self-love, then one would have a general will in Rousseau's particular sense. The distinctiveness of Rousseau's general will is further brought out through a comparison with Kant's 'good will' about which Rousseau would have felt severe doubts.     

Who riots? An empirical examination of the “new urban black” versus the social marginality hypotheses

Much of the research on the socioeconomic characteristics of rioters has centered around the question of whether rioters were the dispossessed fringes of the black community who rioted for fun and profit or the more upwardly mobile segments of the black community who used civil violence as a means of political influence. This study presents evidence that willingness to participate in civil violence is fairly evenly distributed across income, educational, and occupational strata, thereby disconfirming the social marginality hypothesis. However, militancy involves nonviolent protest as well as civil violence. In order to explore the complexities of this concept, the authors use discriminant function analysis to demonstrate that, while violence propensity is related to age but not socioeconomic status, the willingness to participate in nonviolent protests is associated with higher socioeconomic status. A tentative explanation of this pattern of relationships is offered, with the more politically motivated militancy of higher status groups being linked to their desire to eliminate various forms of racial discrimination.     

Political instability in Africa: A rent-seeking approach

The foregoing analysis developed the paradigm of self-interest motivated revolutionary activities. In effect, the construct presented differs from the by-product theory developed by Tullock only in its specific modeling of government-created rents as the engine which drives the violent political behavior. The empirical test of the positive relationship between rent creation by the government and the amount of destabilizing political activity yields strong support for the structuring of politically destabilizing activities as rent-seeking in nature. It is the authors' hope that further empirical investigation and a more general and rigorous modeling of revolution as a rent-seeking activity will become an important part of the literature in public choice.Finally, some policy implications should be discussed. The policy emphasis for the governments of Africa countries should be on opening the economy to competition. Instituting programs to make the economic system more accessible to all segments of society would result in reduced opportunities for rent-seeking. Reducing rent-seeking should result in increased political stability. A reduction in government market intervention would also reduce the costs of government regulations on individual entrepreneurs inducing them to increase their participation in economically productive activities. Taken together the result would be increased political stability and higher rates of economic growth.     

私法在乡村治理法治化中的独特功能

针对如何构建乡村治理体系所涉法治,既有研究多围绕《中华人民共和国村民委员会组织法》等公法展开,故存在不足,亟待考察私法能否发挥某些独特功能。鉴于公法在培养村民的基本法治意识上存在一定的不足,同时,村民与私法的现实联系更为密切,尤其是考虑到私法严格奉行“私法自治”根本原则,由该原则所引申的“私法自治”“合法私利”以及“德法融合”等重要法治意识,不但有益于培养村民的基本法治意识,而且将极大促进在乡村治理进程中,对相通的、根本性的村民法治意识的良好培养。     

The political and practical obstacles to the reform of the judiciary and the establishment of a rule of law in China

Is China’s “socialist rule by law” (社会主义法制) qualified to be called “rule of law” (法治) or a “thin rule of law” proposed by Randall Peeremboon, without abolishing the political supremacy of the Chinese Communist Party and the establishment of an independent judiciary? Since the mid-1990s, the Chinese legal system and its judiciary have gone through reforms and on the whole modernized. However, the Chinese judiciary still faces many problems, and among them the lack of professional jurists, corruption and local protectionism appear as crucial ones. The current political and institutional arrangements and lack of freedom of the press and freedom of association clearly intensify these problems. “Rule of law” (法治) or “rule by law” (法制) in China is still more often interpreted in the light of the respective political, bureaucratic and economic powers of the parties involved than according to principles of law or equity. The modernization of the legal system will continue, but the political translation of the legal demands of society and the international community will take time to materialize. In the meantime, risks, setbacks and difficulties will continue to prevent China from establishing a truly independent judiciary and what is universally called a rule of law.     

Political instability and political terror: Global evidence on persistence

We test the hypotheses that fundamental characteristics in regional proximity, landlockedness, religious‐domination, legal origin, and income levels affect cross‐country differences in the persistence in political terror and political instability in 163 countries for the period 2010–2015. The empirical evidence is based on generalised method of moments. The hypotheses are that the following are associated with comparatively higher levels of persistence in political terror and political instability: regions with predominantly low income countries (Hypothesis 1); landlockedness (Hypothesis 2); Christian‐orientation (Hypothesis 3); French civil law (Hypothesis 4); and Low income (Hypothesis 5). The tested hypotheses are largely invalid. Only Hypotheses 5 and 2 are robustly investigated in the light of concerns about instrument proliferation. Hypothesis 2 is valid for political terror but not for political instability while Hypothesis 5 is neither valid for political instability nor for political terror.