- Sovereign Power and the Law in China by Flora Sapio
In Sovereign Power and the Law in China, Flora Sapio provides a detailed legal overview of a number of significant areas of China’s criminal justice system that have heretofore largely escaped the attention of the English-speaking world. These [End Page 392] include areas such as martial law and emergency powers; the regulation of Falungong and other so-designated evil cults; shuanggui, a special form of criminal investigation that is vested in the Communist Party of China (CCP) rather than in the governmental criminal justice system; police stop-and-question powers; para-police; various forms of rehabilitation camps that operated outside the state’s criminal justice system per se; and the state’s legal efforts to regulate policy use of coercive interrogation, including torture. What makes these particular aspects of China’s criminal law system especially interesting is that they exist at the heart of the intersection between the forces of law and the forces of power in China, a place that Sapio, following Giorgio Agamben, calls the “zone of exception.” It is here, she argues, that the complex relationship between law and power in the context of the Chinese state is made most visible.
What makes these regulatory areas exceptional is that each is a part of the criminal law system but, nevertheless, operates relatively autonomously from the criminal justice framework as laid down principally by the criminal law and the criminal procedure law. Thus, for example, both martial law and declarations of emergency powers involve the suspension of what we might call “ordinary” criminal justice procedures. Efforts to regulate falungong, which were latter legally extended to evil cults in general, also involved the articulation of significant deviations from ordinary justice. Because it operates through the Chinese Communist Party (CCP) rather than the state’s own police, shanggui is not at all subject to the law regulating the state’s own criminal justice mechanisms. The police’s power to stop and question is not subject to criminal justice procedures because it technically takes hold before the formal criminal justice system is invoked. Para-police are private or quasi-private policing bodies that lie outside the ordinary criminal justice system because that system is attached to public or state policing, not private (or even quasi-private) behavior. Rehabilitation camps act primarily as surrogates for the criminal justice system—a form of coercive control that, because it is formally supposed to be attached to relatively minor forms of criminal or illegal behavior, is not thought to be needing of the more protective aspects of the formal criminal justice system. Furthermore, torture and other forms of coercive interrogation are, in fact, illegal, but are as ingrained in police behavior as effectively to require their own independent soft-regulatory system.
As noted above, none of these areas has received anywhere close to the quality of legal investigation provided by this book. The legal history and evolution of these particular regulatory areas are set out and documented in fine detail. In this way alone, the book represents a gold mine for persons wanting to develop their own understanding of these important but overlooked aspects of China’s criminal justice system.
This detail is given shape by framing it in a particular theory of state power adapted from the work of Giorgio Agamben and, in particular, his notion of a “zone of exception.” A zone of exception is a regulatory space in which the state’s [End Page 393] laws are conspicuously removed from play. It is, most critically, a normalized space. It is not a normatively surreptitious and clandestine avoidance of the legal norms—an illegality, however tolerated—but it is a normative delineation of the limits of the legal protections a state is willing to bestow on its subjects. Within this space, subjects are reduced to a state that Sapio, again following Agamben, calls “bare life” (zoé), a “condition in which a person is totally at the mercy of raw power...