Is it possible to be optimistic about rule of law in China — Q&A with Neysun Mahboubi

Domestic News

The lockdown in Shanghai prompted questions about the legality of some of the coercive measures taken by the Chinese government in the efforts to control the spread of COVID-19. Neysun Mahboubi, a leading scholar of Chinese law and governance, told me about the Chinese legal community’s reactions, and much more.

Image by Nadya Yeh

Is it legal for the government to just go into people’s apartments and spray everything with disinfectant, or to lock people up behind fences? Some Chinese legal scholars asked questions like these. To understand what that means in today’s China, I talked to Neysun Mahboubi, a research scholar at the Center for the Study of Contemporary China, University of Pennsylvania, and the host of its podcast.

To understand the tone of our conversation, you might want to bear in mind that my nickname for Neysun is “the Incorrigible Optimist.” Obviously, I tend to be a glass-half-empty kind of guy.

We chatted by video call on May 24. This is an abridged, edited transcript of our conversation, part of my Invited to Tea interview series.

—Jeremy Goldkorn

You’re an expert on administrative law in the U.S. and in China. Can you tell me exactly what “Chinese administrative law” means?

In broad terms, administrative law is the law that structures the way in which government relates to citizens. And, at least in the U.S., we typically think of it in terms of, first, the law or the rules that the government has to follow when it makes decisions that affect citizens, and, also, the law and rules around how citizens can seek redress when they feel that their rights have been violated by the government. In China, this second part can include petitioning, but now also seeking administrative reconsideration, and/or pursuing litigation in court.

What I’ve spent my career studying is the development of what we might call a modern administrative law in China, and that really starts with the passage of the Administrative Litigation Law in 1989 — just a couple of months before the crackdown at Tiananmen Square. This is the law that allows Chinese citizens to sue the government. And there’s a fascinating backstory to how that law came about, how it was drafted, the different kinds of models from around the world (including U.S. administrative law) that Chinese legislative actors looked at in drafting that law.

From that starting point of establishing how citizens can claim formal legal redress for violations of their rights by the government, China has developed a much broader landscape of administrative law in the years since. A whole suite of particular laws has been enacted that relate to how the Chinese government is supposed to act in all the different ways that one could classify government as acting. So, for example, there’s a law on administrative punishment, one on administrative licensing, another on administrative compulsory enforcement. All of these have been passed sequentially over the years since the passage of the Administrative Litigation Law in 1989.

What I look at as a scholar of Chinese administrative law is the overall landscape today, where you have both of those dimensions that I discussed in my definition earlier: a dimension that has to do with the rules that government has to follow in acting vis-a-vis citizens, and a dimension that has to do with how citizens can try to seek redress of grievances when they claim that government didn’t follow those rules it was supposed to follow.

In China, I’ve had two…well, I’ve had several, but two run-ins with the law in China that are relevant to my question, in which I was talking to police officers and questioning the legality of things they were doing. And two different policemen said to me, “Your bullshit about law means nothing. We decide what the law is.”

As you’ve watched the development of administrative law, how seriously can we take it and how cynical should we be about its actual implementation?

One way that I can answer that question is by saying that, from early on in the Reform and Opening period, there was a very top-down emphasis on building up something like a modern legal system that would do a better job of constraining government action, but also of ordering private relations between citizens. A big part of the motivation for this was the experience of the chaos of the Cultural Revolution. Another motivation was to encourage economic activity, generally, and also to attract foreign investment. So, on the whole, there were a lot of overlapping reasons for a high-level emphasis on developing a modern legal system. And out of that, an entire ecosystem of Chinese law and legal institutions has emerged.

It’s very important for me to emphasize that the ecosystem is not just limited to the actual laws that have been passed by the National People’s Congress or the regulations that have been passed by the State Council. It also includes legal professionals: the professors, judges, and lawyers…and also officials within the government who are tasked with a sort of legal portfolio in their jobs. The driving logic of the people who staff that ecosystem is not necessarily the exact same as that of the Chinese leadership at any given time, which has often resulted in a conflicted relationship between the two.

In those areas of conflict between the legal system and political power (in particular with the prerogatives of the Chinese Communist Party), the leadership has generally wanted to emphasize political imperatives over legal constraints. But many if not all of the people who staff this legal ecosystem do actually believe in its values, which are separate from raw political power.

And so out of all that, I think there is a reality to the Chinese legal system that has emerged, over the past 40 years, that isn’t so easy to just dismiss as simply some kind of a Potemkin village.

Now, of course, you don’t want to overemphasize that reality because the nature of political power in China is such that there are lots of different channels in which, when push comes to shove, political power can overwhelm whatever legal constraints there might be. But the legal constraints are not fake. There is some reality to them.

But examples of the failure of this to work — the ongoing harassment and imprisonment of peaceful dissidents, the Uyghurs locked in detention centers without trials, etc. — are easy to name, but I guess there must be some successes.

Is there a case, or some cases you could point to where you could say, well, the law actually worked as it was intended, and there was some kind of separation of powers that allowed a wronged citizen to in fact get redress?

The answer I want to give is general, but also specific to administrative law. The general answer is that there are lots of ways in which the Chinese legal system has come into being. Just look at civil litigation, there are a huge number of cases (over 10 million) per year. Administrative litigation is not nearly as common as civil litigation, but there are now, since the 2014 revision of the Administrative Litigation Law, roughly about 250,000 administrative cases per year.

And some of those cases do result in judgments in favor of the plaintiffs. Now you can say — and I’ve said in my own work — maybe the number of cases isn’t as high as it should be, given the number of instances of potential illegality in the Chinese government’s relations with its citizens. And there are all sorts of ways in which there is political interference in cases, which myself and other scholars have tried to document. But cases do sometimes result in verdicts on the behalf of plaintiffs.

Can you be more specific?

Well, a lot of these cases are not the same cases that we tend to focus on in our federal administrative law in the United States. In China, there aren’t cases that convey judicial power such as the case in Florida just a month or two ago, where the U.S. district judge enjoined the federal mask mandate throughout the United States. That kind of case is not really possible in China, in part for technical legal reasons having to do with the Continental legal system which the Chinese legal system is modeled on.

So, putting aside the merits of whether or not we think that judge in Florida made the right decision in that case, I want to underscore at the outset that those kinds of dramatic cases are not really a feature of the Chinese legal system.

Rather, Chinese administrative cases are much more localized: It could be a claim that someone was detained by police wrongfully, or maybe was beaten in detention. It could be a claim that the tax authorities maybe levied too high of a tax, or levied a tax that didn’t have legal justification.

Especially in the last 10 years — and beyond that, actually — there have been a lot of cases having to do with takings of land by local authorities. Since the 2014 revision of the Administrative Litigation Law, many of those cases have resulted in positive judgements for the plaintiffs. Still, on the whole there is a generally agreed upon consensus that there aren’t enough administrative litigation cases given the overall instances of illegality, and not enough times where plaintiffs are winning those cases.

In the early years of the new era of Xí Jìnpíng 习近平, he talked a lot about using the cage of law to constrain power. A lot of optimists, poor fools, took this to mean that Xi was going to encourage rule of law.

How did you read that?

When Xi Jinping came into power together with Lǐ Kèqiáng 李克强 in 2012, they spoke about the law in ways that seemed more compatible with the law reform agenda of that community of law professors, judges, lawyers, legal officials I’ve discussed earlier — the rule of law community, to use a shorthand.

In the latter stages of the Hú Jǐntāo 胡锦涛 and Wēn Jiābǎo 温家宝 administration, especially within the court system, there was a move away from formal adjudication, towards what they called “grand mediation.” And so there was a phenomenon that a number of scholars — Chinese and foreign — came to describe (in language that Carl Minzner used in a very influential piece he published at the time) as China’s “turn against law.”

When Xi Jinping and Li Keqiang came into power, they started speaking about law using language that gave people the sense that maybe China was going to turn back towards law, and that the formal legal system was going to get a new level of emphasis under their administration. Some of that was rhetorical, some of it was reflected in the personnel they chose — the best example of which is the president of the Supreme People’s Court, Zhōu Qiáng 周强.

Under Hu Jintao and Wen Jiabao, the president of the Supreme People’s Court, Wáng Shèngjùn 王胜俊 was a former police official without any real legal training. Zhou Qiang, is yes, a former governor and Party secretary, but before that, he was legally trained in the first graduating class of the Southwest Institute of Chinese Law and Politics, a very famous graduating class which included many of the top Chinese legal figures today, including people like Hè Wèifāng 贺卫方, the famous Chinese legal scholar at Peking University, Liáng Zhìpíng 梁治平, another famous Chinese legal scholar, and many others who I won’t list. Zhou Qiang is part of that community.

It is maybe worth pointing out that at least Professor He lost his job at Peking University because of his outspokenness?

Well, he hasn’t lost his job, exactly; he’s been retired in a way that is very specific to the Chinese academy and not uncommon at his age. But, yes, he is someone who has represented this legal reform community in a very deep way, but is now on the outskirts. He’s not imprisoned…There’s no imminent threat to his autonomy in terms of his life or freedom. But for sure he has to be more careful about what he says publicly. And he can’t teach in the same way he used to, he can’t publish and lecture in the same ways he once did.

But, back to your question of legal reform under Xi, the Fourth Plenum of the 18th Party Congress in 2014 was the first such plenum to be focused on the “rule of law”. If you look at the Decision that came out of that Party Congress, there is a lot of language in there about judicial reform, about administrative law reform, that was consistent with what the law reform community had been advocating for many years.

In fact, that law that I told you about earlier, the Administrative Litigation Law, was revised right after the Fourth Plenum in ways that were largely consistent with the mission of the legal reform community to make law have more strength and do a better job of constraining lower level government action.

Of course, leading up to the Fourth Plenum, it was clear that anti-corruption also was a big part of what Xi Jinping was trying to do. And it was not being pursued through the formal legal system, as much as through mechanisms like the Central Committee for Discipline Inspection and things like that. Moreover, in that Fourth Plenum document, there also was a lot of language about the leadership of the Party that was concerning. And what we’ve seen since 2014 are manifold ways in which the Party is elevated in the Xi Jinping administration to become evermore constraining on the actual functioning of the legal system.

So we’re in a moment now when the legal system can be viewed, increasingly clearly, as something of a tool for centralization of power under Xi Jinping, more so than the kind of constraint on government action that was, I think fair to say, the driving vision of the legal reform community that I’ve been describing so far. As we reach towards the third term of Xi Jinping’s administration, I think there’s a new understanding that the ways in which Xi Jinping and Li Keqiang spoke about the legal system in the early part of their tenure was ephemeral because maybe it had more to do with centralization of power in the person of Xi Jinping.

But an important point I want to add to this is that the legal reform community has not been eliminated by these developments. They are still there. And many of the things that they have pushed for— in terms of increasing judicial independence and increasing judicial autonomy, for example through the Administrative Litigation Law — that agenda has not completely disappeared. It’s just that it hasn’t received the same level of political mobilizing support that some people thought it might enjoy, back in 2012.

But it’s strong enough for you to remain somewhat of an optimist!

But let’s talk about the thing that prompted me to reach out to you: Chinese legal scholars questioning the legality of some of the anti-COVID measures in Shanghai:

Is it legal, some scholar asked, for the government to just go into people’s apartments and spray everything with disinfectant, or to lock people up behind fences?

Indeed, just in the past six weeks, various kinds of mitigation measures taken in Shanghai in particular have attracted as huge amount of attention, including things like forced quarantines, or going in and sterilizing homes against people’s will.

Tóng Zhīwěi 童志伟 is a constitutional law professor from Shanghai, at the East Chinese University of Politics and Law, Zhào Hóng 赵宏 a professor of administrative law at the Chinese University of Politics and Law, and Shěn Kuī 沈岿 a professor of administrative law at Peking University Law School.

These three in particular have very recently published commentaries about the consistency (or lack thereof) of lockdown measures with Chinese constitutional and administrative law. In each of those cases, the commentary was “harmonized” (as we like to say) on the Chinese social media platforms where they were initially posted, but then made available through alternate means.

Just to be clear, they basically said that going into people’s homes without their permission to sanitize them, or locking them up without giving them any choice, that these actions were not in accordance with administrative law.

Yes, each of them made a slightly different argument. I think Tong Zhiwei was particularly focused on forced quarantine. Zhao Hong’s commentary mainly addressed when they take people’s keys away. Shen Kui’s examined when authorities go in and disinfect people’s homes..

In each case, these scholars looked at provisions in the Law on Infectious Disease Prevention and Control, provisions in the Emergency Response Law and in the Chinese Constitution. They each performed very careful legal analysis to suggest why there was a problem with the government actions at issue.

To me, this showcases the continued existence of the legal reform community. These scholars are expressing the development of a legal ecosystem, and of methods of legal interpretation.

Now, we can go back to other times in the past when the Chinese government has, in its local forms, acted in ways that have generated the same concerns, such as the milk powder scandal, or the Sichuan earthquake — all those different moments have generated similar kinds of commentary from Chinese legal scholars. There used to be a lot more expression of critical voices in those past instances than we are seeing today, but I take heart that such expressions are not completely gone.

Again, in each of those recent cases, the articles were harmonized on the first platform they was issued on. (And some of that may just be because the article attracted so many page hits that it triggered almost an automatic control.) But, anyway, each of those commentaries was able to be republished on other platforms. So, it’s not to say that there’s no censorship because obviously, they were harmonized in their first instances — but the commentaries did end up on other platforms and get shared, if not viewed at quite the same rate as they were initially.

What I’m trying to say is that there is still scope for Chinese legal scholars to critique the legality of local government action, as measured against higher level law or the Constitution itself. None of them is making a broader political point. But this is a form of argumentation that the legal reform community has typically used to great effect over many years.

To be clear, I don’t think that any of the three scholars I mentioned are in the same category now as Tsinghua professor, Xǔ Zhāngrùn 许章润 — who wrote much more personally about Xi Jinping and about his failings as a leader. None of the three scholars are doing that. But I would contend that the types of critiques they are making — which are not in the same mode as someone like Xu Zhangrun — do still matter nevertheless.

And the space for such critiques has not been completely eliminated. So if you say I’m an optimist, it’s because I find that space, as constrained as it is, still at least somewhat visible.

Things have improved since 1968, at least.

Well, sure. And that’s…I mean, what’s our reference point? Do we want to compare things to 1968? Do we want to compare things to 1988? Do we want to compare things to 1998? Each of these moments have had their own particular contours.

I think to the extent that one can maintain optimism today, it’s not just that some of these legal scholars are still willing to be vocal. It’s also that the overall apparatus of this set of actors that have been empowered, and the institutions that they populate, and the students that they train, this apparatus has gotten so large that I think it is almost beyond the capacity of any leader, including someone like Xi Jinping to totally shut it down. Which is not to say that someone like Xi Jinping is not going to hamper the development of that overall ecosystem. But to shut it down entirely would take a lot.

One small thing I’ll add on this, is that I’ve noticed a lot of the people I know from the Chinese legal reform community who are in positions of some authority at their various universities or institutions, they are now being asked to go to forums on topics like “Xi Jinping Thought on the Rule of Law.” And they present work that, if you parse it carefully, you’ll see that the first page or two is all Xi Jinping, Xi Jinping, Xi Jinping…and then after that’s out of the way, they just go on to talking about the types of things they were talking about 15 years ago, 20 years ago — the same types of legal reforms they’ve been pushing for from long before Xi Jinping took power.

Let me ask one more question. It’s been interesting, since the beginning of the pandemic, to watch Americans, at least liberal Americans, be much more receptive to the idea of government controls than perhaps they would’ve been a few years ago. I think certainly in cities like New York and San Francisco and Philadelphia, you have a lot of people who have been quite enthusiastic about the power of government to regulate even the smallest details of our lives.

And that this is an approach, obviously, that is quite popular in China. Is it still popular in China, post Shanghai lockdown?

I think that so much of what we see now in the Chinese government’s pandemic response can’t be disassociated from the failings of its response to the early days of the pandemic.

If you go back to January, February 2020, for the legal reform community, there was a window where they actually had a lot of space to really critique the failings of the initial response, especially the ways in which the Wuhan government authorities did not report the novel coronavirus through the reporting system in the way that they were supposed to (based on law and regulations). Interestingly, critical ideas about needed reform at that time had a lot more to do with strengthening governmental response, as opposed to being worried that governmental response was too strong.

These ideas drew on popular anger at the failings in Wuhan and the ways in which ordinary Chinese people were afraid for their own lives based on what they thought were failings in Wuhan. I understand the robustness of the Chinese government response, since then, as reflective of how much Chinese people were really upset that the central and local governments did not take the pandemic seriously at the beginning.

What I think is interesting, then, to think about — and I haven’t been on the ground in China, obviously, since late 2019, but drawing on social media and some reporting — is that it seems as if Chinese who are in places where these lockdowns have not as been as strict, they tend to still think it’s okay for government to act in a very robust way. But Chinese people in places like Shanghai, where the robust governmental response has impacted them in ways that seem quite intrusive, they have been rethinking that calculus and seem to think those intrusions are really too much.

Last question. I recently had a guest for this column, Anne Stevenson-Yang. I asked her when she thought she might go back to China and she said not until there’s regime change! How are you feeling about going back to China?

I do not feel the same way as her. There’s no question that the detention of Michael Spavor and Michael Kovrig was very well noticed by all of us who are foreigners who have gone to China quite often over the years, not to mention the detentions of Chinese nationals with dual citizenships. But, personally, I am very eager to go back to China as soon as the COVID restrictions are lifted, because I think it’s absolutely essential for better understanding of China that those of us who have the ability to go to China, and who have the capacity to learn things from our longtime interlocutors, that we do so.

In fact, I think this is one of the most important priorities in the world right now, given the larger tensions between the U.S. and China. And I feel relatively confident that those of us who are genuinely at risk of being detained are very, very few in number. Indeed, Anne said something along these lines, too, in her comment to you that maybe the risk of detention is quite minimal.

Anyway, for me at least, that level of risk would not outweigh what I see as the hugely important benefits that would accrue from those of us who have been going to China for many years — who have the contacts, have the relationships, have the ability to serve as a bridge between the two countries — for us to go do that as soon as possible.

But, I’m not at all interested in quarantining.

Invited to Tea with Jeremy Goldkorn is a weekly interview series. Previously: 

The future of activism in Hong Kong — Q&A with Jeffrey Ngo