European China Law Studies Association Annual Conference 2022

Abstract

China’s governance has long been characterised by the dominance of administrative power. In the reform era, administration has been marked by policies claiming both comprehensiveness (such as the comprehensive management of public order) and legal rationality (such as依法行政yifa xingzheng and 法治行政fazhi xingzheng, and wide-ranging legal reforms to strengthen governance of administrative power and professionalisation of administration). We see these claims reiterated and reframed in Xi Jinping’s Thoughts on the Rule of Law in the form of ambitions to modernise and strengthen comprehensive governance capacity and impartial administration of justice. Promises of justice in administration are arguably an important element of these programs and made explicit in polices including that of people centred governance.  

These conceptual framings are powerful. They encourage us to explain injustice and abuse as the result of individual fault, or as an aberration resulting from incomplete transition of a system that is still being ‘perfected’. This paper argues that we need also to consider alternative rationalities in understanding the dynamics of power and justice in administration in China. It argues that legal and institutional arrangements as well as ideological commitments shape and produce administrative action, as well as inaction and abuse. Two of these alternative rationalities are the over responsiveness to emergency modes of administration, that is a stable orientation to campaign-style management, and ideologically oriented interpretations of risks to stability and security. I trace the ways in which these alternative rationalities institutionalise pathologies of inaction and abuse and undermine both the will and capacity to give faith to the promise of justice and equality before the law.

Bio

Sarah Biddulph is Professor of Law at the Melbourne Law School and Director of its Asian Law Centre. Sarah’s research focuses on the Chinese legal system with a particular emphasis on legal policy, law making and enforcement as they affect the administration of justice in China. Her areas of research are contemporary Chinese administrative law, criminal procedure, labour, comparative law and the law regulating social and economic rights. In her role as Assistant Deputy Vice Chancellor International – China, she has been instrumental in developing and implementing the University of Melbourne’s strategic direction for engagement with China.

Abstract

Since its reception, the NSC has received critical media and scholarly attention, which frequently focuses on aspects such as the NSC’s centralization, politicisation and a consequent lack of legal accountability, typically presenting the Commission’s establishment as another abrupt attempt of President Xi to re-normalise omnipotent Party domination. This article endeavours to situate the NSC in a wider comparative political context against the historical longue durée, making the argument that it was a long held goal of the Party to set up an anti-corruption “mega agency” that is capable of unifying and transcending powerful local and sectoral interests and that a centralised institution of such nature was also partly an insight derived from the comparative corruption literature together with advice from international organisations. Framed in this light, the NSC is the result of international appropriation and continuing adaptation to changing circumstances. 

Bio 

FU Hualing is the Warren Chan Professor in Human Rights and Responsibilities and Dean in the Faculty of Law, The University of Hong Kong. He holds an LL.B. from Southwestern University of Politics and Law in China, an M.A. from University of Toronto and a Doctor of Jurisprudence from Osgoode Hall Law School. His research is in the areas of human rights, public law, and comparative Chinese law. He has published widely and his most recent work includes, Hong Kong’s National Security Law: Restoration and Transformation (Hong Kong University Press, 2022) (ed. with M Hor); and Regime Type and Beyond - The Transformation of Police in Asia (Cambridge University Press, forthcoming), (ed. with W Chen).