Author: Meng Ye, University of Tübingen
In the midst of the global “democratic recession” and the new trend of “autocratic legalism”, Xi Jinping’s China is an excellent example of how the strengthening of law and legal institutions can occur not only in conjunction with a profound authoritarianism, but at the service of it.
The notorious removal of Xi’s term limit took the form of a constitutional amendment, accompanied by the formal consecration of the leadership of the Communist Party of China (CCP). Some interpret this as adding weight to the constitution – and legality in general – within Chinese governance.
The Supreme People’s Court continues to play a vital role in unifying the interpretation of the law. Local courts are eager to show off their innovative applications of artificial intelligence (AI) to reduce the arbitrariness of decisions. They are supposed to be less inclined to “illegitimate” interventions under an increasingly systematized and “legitimate” political control by the Party.
Barriers to administrative litigation have reportedly been eased by the new case registration system introduced in 2015, while structural reforms of local courts have further reduced the influence of local governments on the judiciary. Some local courts have even been able to limit government decisions on land disputes through protest-driven litigation.
None of these cases occurred at the expense of the Communist Party’s authority over the judiciary. Rather, they emerged during a period in which the Party’s ideological and political control over virtually all state institutions became increasingly tight.
With an increasingly professionalized judiciary – relatively autonomous in its decision-making but subordinate to the regime – capable of handling wide-ranging disputes, it’s as if Xi’s China is showing its fellow autocrats how “properly” it is. do. But are we really seeing a real-world reconciliation of deep authoritarianism with some form of “rule of law”?
A closer look reveals a much more nuanced picture. While the sheer volume of administrative cases increased by more than 50% when the new system was introduced in 2015, the growth rate was not unreasonably high considering that the total number of all types of business increased by more than 40% during the same period. After 2015, the growth rate of administrative cases fell to 13.2%, while that of all cases ..
The new system does not appear to have increased public access to administrative litigation against government behavior significantly, especially given the strong trend of increasing cases. The proportion of first instance administrative disputes among all types of cases tried by local courts across the country barely increased from 9.49% in 2014 to 9.97% in 2019. The percentage of cases earned in China by claimants increased slightly but remained at the extremely low rate of around 13% in 2015.
Administrative disputes are an important indicator of the extent to which courts can thwart the political influence of local parties and state actors. “Local protectionism” has been a prominent feature of China’s judicial system as a structural loophole allowing for corruption and resistance to central directives.
Judicial reforms after 2013 targeted local party-state power over the judiciary by centralizing court personnel and budget management at the provincial level. But implementation remains largely incomplete. Less developed provinces have barely begun to implement fiscal centralization, while local governments in more developed regions remain responsible for a large share of monetary budgets and material equipment.
The establishment of the new anti-corruption mechanism has systematically undermined the already inferior status of the judiciary compared to party committees without leading to significant vertical centralization. A first analysis warns that the use of AI in Chinese courts could further limit the discretion and decision-making autonomy of judges, rather than facilitating it. It is reasonable to assume that the supremacy of party committees over all other state institutions—a core feature of Chinese authoritarianism—has itself impeded many of the reform outcomes desired by the CCP.
It is certainly true that the CCP has moved away from the liberal concept of “rule of law” and is working to build a legal framework that supports its “neo-totalitarian” regime. But how effectively it has managed to do so is far from clear, even when measured against goals such as reducing local protectionism and granting the courts sufficient autonomy to maintain the legitimacy of the regime.
Questions remain about the extent to which the CCP’s growing supremacy is conducive to achieving many of its own political goals. If China is a testing ground for determining the extent to which authoritarian regimes can rely on “legality” – stripped of the democratic and normative core of “rule of law” – to help maintain political rule, there can be strict limits to how far these efforts can go.
Meng Ye is a research assistant and junior lecturer at the Chair of Greater China Studies at the University of Tübingen.