In Between – Gender, Solidarity and Legality? Part II (of II): China’s Legal System (original) (raw)
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2020
The near half-century of the post-Mao era has almost universally been called one of construction of China’s legal system. But while great changes have taken place in China’s public order and dispute resolution institutions, other things have changed little or not at all. Most commentary focuses on the changes; this article, by contrast, will look at what has not changed—the important continuities that have persisted for over four decades. This article argues that the scholarly community has accumulated over the past four decades a number of observations about China’s order maintenance institutions that are increasingly difficult to explain using the conventional vocabulary and concepts of legality. When we see inconsistencies, we tend to explain them as signs of the immaturity of the legal system, or as mistakes, or as unrepresentative aberrations. This kind of explanation is driven by a conscious or subconscious convergence theory. But we have to take these inconsistencies seriousl...
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Cage for the Birds: On the Social Transformation of Chinese Law, 1999-2019
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In his book on legal reform in China after Mao, Stanley B. Lubman adopted the metaphor “bird in a cage” to describe the status of Chinese law at the turn of the twenty-first century. This article offers some general reflections on the social transformation of Chinese law since 1999, with the objective of explaining (1) how the legal bird has become a cage, and (2) how this new legal cage has been used to trap birds in Chinese society. It first traces the transformation of the legal bird into a cage in China’s reform era and then tells the stories of four species of birds currently confined in the legal cage, namely, hawks (state officials), crows (rights activists), sparrows (netizens), and ostriches (ordinary citizens). Laws related to the four species are concerned with combating corruption, political stability, internet control, and everyday life, respectively. By focusing on the four species of birds in the legal cage, this article offers a fresh understanding of how law interacts with various individuals and social groups in Chinese society and a sociolegal explanation of the social transformation of China’s legal system from 1999 to 2019.
Rights and Remonstration: Gender Equality, Confucianism, and the Rule of Law in Modern China
This article attempts to arbitrate the contestation between Confucianism and the rule of law through the lens of gender relations in China. Advocates for Confucianism argue that its philosophy can provide moral guidance in modern times, and "political Confucianism" hopes to see traditional Chinese philosophy inform modern Chinese politics and become an alternative to western liberal democracy's emphasis on human rights and the rule of law. Can Confucianism be restored as a legitimate moral system, however, if we measure its ability to protect and empower women in a modern Chinese society? Or must Confucianism's moral principles be supplemented (or substituted) with a human rights regime grounded in the rule of law? I argue that Confucianism must incorporate human rights and the rule of law in order to be a morally acceptable modern movement. More specifically, Confucian "remonstration" is not an adequate vehicle for dissent nor can it protect the interests of the oppressed. The rights of disenfranchised community members must be guaranteed, and the most effective rights are part of an actionable legal regime. Moreover, all modern societies, including and perhaps especially China, have disenfranchised community members. As it stands, international law has the weak force of analogous to Confucian remonstration. It must be given more purchase in national and regional legal systems in order to protect victims of injustice and discrimination. At the same time, advocates for international human rights standards must allow community members to determine what constitutes injustice and discrimination for themselves, rather than having a foreign legal 1