Order of Power in China’s Courts

Author(s)

Ling Li

Abstract

This article presents a theory of the order of power to explain the dynamics and interaction between the political and legal orders in China’s courts. This theory posits that the political order is embodied in the extensive administrative ranking system (ARS) of the People’s Republic of China and has a systematic impact on the legal order regardless of the subject matter. The ARS is a system that regulates power relations between various institutional and personal actors in all key power fields, including courts. According to this theory, power, as stratified by the ARS, relativizes law during the processes of legal implementation, application, and enforcement. This theory provides a coherent explanation of judicial behavioural patterns in different subject matters, such as the centralization of criminal investigations in some crimes but not others, the distribution of corruption in China’s courts, and the outcome patterns of administrative litigation. Whilst the conventional wisdom sees that the political and the legal orders in China’s courts are partitioned based on the subject matter, this theory asserts the opposite: the impact of the political order is systemic, comprehensive, and applicable to the entire legal field. This article fills a knowledge gap in Chinese law and politics, where the ARS has received little attention except for recent studies on administrative litigation. The article also identifies two overlooked but distinctive features of the ARS—its multidimensionality and interconnectivity—our understanding of which is disproportionately poor in relation to their significance.

Organisation(s)

Department of East Asian Studies

Journal

Asian Journal of Law and Society

Volume

10

Pages

490-515

No. of pages

26

ISSN

2052-9015

DOI

https://doi.org/10.1017/als.2023.16

Publication date

07-2023

Peer reviewed

Yes

Austrian Fields of Science 2012

505016 Legal theory, 505026 Constitutional law, 505017 Comparative law, 505012 Public law

Keywords

ASJC Scopus subject areas

Law, Sociology and Political Science

Sustainable Development Goals

SDG 16 - Peace, Justice and Strong Institutions

Portal url

https://ucrisportal.univie.ac.at/en/publications/order-of-power-in-chinas-courts(db03fcf8-51ea-401f-aa7f-7502872e0591).html