China’s Legalistic Turn

In recent years, China has significantly expanded its legal framework and increasingly turned to laws as a source of political legitimacy. China is undergoing a gradual and deliberate “legalistic turn,” primarily following a rule by law approach, which differs from the concept of the rule of law. Several noteworthy trends have emerged in this regard.

First, Chinese politics have shifted significantly toward a more law-oriented direction. Second, Chinese laws are now being formulated “with Chinese characteristics,” with the Chinese Communist Party's leadership role being strengthened through legal instruments and legitimization. Authoritarian China is strategically enhancing its legal institutions for both political and administrative reasons – and, in some cases, being compelled to do so.

The sheer number of new laws is notable, and regulations are being published at an impressive speed. Over the past decade, the National People’s Congress and its Standing Committee have enacted 68 new laws, amended 234 laws, issued 99 decisions on relevant legal and major issues, issued nine legislative interpretations, and currently have 292 effective laws. Compared to the previous decade, the number of newly enacted laws has increased by one-third, the number of amended laws has nearly doubled, and the number of decisions on relevant legal and major issues has increased by 1.5 times.

These burgeoning legal creations cover traditional areas of economic regulations, national security, and social government, but also extend to frontier issues, such as renewables, generative artificial intelligence, and data management. To cite just a few examples: The Data Security Law, effective since September 2021, outlines measures for the classification, handling, and cross-border transfer of data, with an emphasis on safeguarding national security interests. The law was used to block DiDi, a ride-hailing company, from a successful IPO in the United States. The Hong Kong National Security Law was imposed by Beijing in 2020, which seeks to maintain national security in Hong Kong but has raised international concerns about its impact on the territory’s autonomy and freedoms.

Under President Xi Jinping’s administration, the use of law to consolidate political power in China has been strikingly evident. Contrary to expectations that an increasingly authoritarian regime might sidestep legal frameworks, Xi has instead chosen to enact constitutional amendments, thereby strengthening his political and administrative hold through legal means. A pivotal moment came in 2018 when he orchestrated the removal of presidential term limits, paving the way for what many see as Xi’s ambition to rule for life.

China has thus entered a new era where political power is not only exerted but also legitimized through the law. During Xi’s first term, the law emerged as a potent political tool. It positioned the Chinese Communist Party (CCP) not only as a defender of justice but also as an instrument for targeting political rivals. This was most notably seen in the high-profile anti-corruption campaign of 2013, which led to the downfall of Bo Xilai, a figure once seen as a potential contender to Xi’s leadership. This campaign underscored the party’s commitment to using legal mechanisms for political ends, thereby reinforcing Xi’s grip on power within the intricate landscape of Chinese politics.

To provide context for the changes in China’s legal landscape, it’s important to consider the approach of Xi’s predecessor, Hu Jintao, who was in power from 2003 to 2013. Under Hu’s leadership, the emphasis was placed on using laws as a tool for maintaining social stability. This focus led to the judiciary being shaped in a way that favored mediation over litigation. This period saw the rise of the right protection (维权) lawyers’ movement, which reached a peak around 2000. A notable example of this was the large-scale petition organized by lawyer Chen Guangyao. Chen mobilized 79 villages in his home province to oppose a paper mill project that threatened severe environmental impacts on these communities.

The advent of Sina Weibo, a microblogging platform launched in 2009, marked a pivotal shift in Chinese social discourse. It quickly became a digital agora, fostering grassroots movements and bringing national attention to various local issues. This period saw the intersection of new media’s widespread influence and the active, organized social advocacy led by lawyers, which prompted Hu’s administration to recalibrate the Chinese judiciary system. During this era, litigation became less favored, with a greater emphasis placed on mediation. The administration’s strategy was largely about containment – aiming to address and prevent societal-level protests under the guise of preserving social stability, aligning with the political narrative of the time to create a “harmonious society” – the political rhetoric of that time.

Judges were guided by a principle that minimized the escalation of disputes, under the mantra “small problems do not leave the village, large problems do not leave the township, and conflicts are not passed up to higher authorities.” Emblematic of this approach was Judge Chen Yanping, who was celebrated in a nationwide campaign as the “model judge.” She was known for her vision of China as “a world without litigation,” a perspective that resonated with the prevailing ethos of the Hu administration focused on social harmony and stability.

Under Xi, the perspective is quite different. Chinese laws are integrated with the official political discourse and are emblematic of the “socialist rule of law with Chinese characteristics.” Since the 18th CCP National Congress in 2012, several significant decisions and measures have been taken to enhance law-based governance in China. A set of “ten principles” has been issued to guide China's approach to law-based governance, emphasizing the “paramount importance” of the Communist Party’s leadership, which seems to undergird the so-called uniqueness of Chinese socialist rule of law. In the first meeting of the Commission for Comprehensive Law-based Governance under the CCP Central Committee in 2018, Xi further clarified China’s goal to be the establishment of “a complete system of law, a highly effective enforcement system, a stringent scrutiny system, effective supporting measures and a sound system of party regulations.”

China’s legal landscape has witnessed a profound shift toward legalism, where the law is not just a tool of governance but a source of political legitimacy. The government is consciously creating a law-based governance that encompasses all important areas of life, while it legally strengthening the CCP’s position under the name of socialist law with Chinese characteristics. Laws will continue to play a pivotal role in shaping the country's future.