Legal Reform in the Xi Jinping Era

In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The Fourth Plenum Decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms.

This essay attempts to do three things: (1) analyze how and why China’s legal reforms have shifted over the past two decades, (2) outline the direction of reform under Xi, and (3) sketch out the institutional considerations that are likely to steer state efforts in the legal field over the coming years.

The Turn Against Law

In the first decade of the 21st century, Chinese Communist Party authorities turned against many of the legal reform efforts that they themselves had launched in the 1980s and 1990s. Starting around 2005, a new official line began to gradually penetrate China’s judicial and legal organs. Broadly speaking, this position included the following:

• • A shift away from late 20th-century efforts to promote judicial professionalism, coupled with a revival of 1950s Maoist-era ideals of judicial populism

• • A revived focus on mediation, rather than court trials, as a preferred mechanism for resolving conflicts among citizens as well as between citizens and the state

• • A new state narrative depicting the law as cold and unresponsive to citizen needs

• • A stress on the courts as an undifferentiated cog within the state organs for stability maintenance (weiwen)

• • A steady reduction in tolerance for the activities of public interest (weiquan) lawyers

• • A new political campaign reiterating party supremacy over the constitution, law, and courts

• • The charging of local officials with the priority task of containing citizen disputes, conflicts, and petitions at all costs

Central authorities employed multiple tools to implement these shifts. Some were highly public—for example, the 2008 appointment of a veteran security apparatchik as the new head of the Supreme People’s Court, the 2009 police raid on the Open Constitution Initiative, and the subsequent repression of public interest lawyers such as Xu Zhiyong and Teng Biao. Other tools were less visible. New propaganda campaigns within the courts presented changed depictions of “model” judges to emulate: tireless court officials perhaps lacking in book learning but at ease among the masses, recognizant of parties’ emotions, and able to resolve disputes (often without resort to legal norms) before they blossomed into conflict. Personnel evaluation systems for judges and other officials were tweaked to emphasize mediation rather than adjudication.

In part, this shift was a politicized counter-reaction to the results of earlier reforms. Late 20th-century Chinese authorities had emphasized the role of law, litigation, and court mechanisms for resolving civil and administrative disputes. By the early 21st century, these practices had given rise to a range of actors within both state and society pushing for deeper institutional change. The early 2000s had seen activists such as Xu and Teng fuse court challenges with savvy use of the media to put heavy pressure on both central and local authorities. Within the bureaucracy itself, new voices were beginning to suggest that the law and constitution should be assigned a greater role in governing official actions. The new official line that descended on the legal system in the first decade of the 21st century sought to defang some of these pressures.

Central authorities were also motivated by deep concerns over social unrest. They saw legal reforms channeling disputes into an institutionally weak judiciary lacking the capacity to enforce its own verdicts. They noted with unease a rising tide of citizen petitioners invoking the language of law and rights—not always with merit—to mount increasingly organized challenges to the actions of local officials. And they voiced concerns that a rising cadre of academically trained young judges preferred to sit behind their desks and write opinions on technical legal issues rather than, for...