China’s Jasmine Crackdown and the Legal System (Excerpts）

• Author: Donald C. Clarke

Since late February, China has seen a wave of detentions and disappearances of lawyers, activists, and others whom the state apparently finds threatening. Particularly alarming to many is the government’s apparent disdain for even the modest requirements of the laws that it created itself. While some people have been detained or arrested in accordance with procedures required under Chinese law, others have simply been picked up by security officials and disappeared.

The immediate cause is doubtless the government’s desire to forcefully dispel any fantasies Chinese citizens might have about having their own Jasmine Revolution. More concretely, in the current atmosphere no official wants to be on the receiving end of an angry telephone call from his superior when someone he has failed to control causes a stir that in some way embarrasses the leadership. There is little downside to detaining as many potential troublemakers as possible, and no upside to erring on the side of tolerance.

What this means for our understanding of China’s legal system is not immediately clear. Here I will canvass three different viewpoints, each widely held, and then suggest why I think they are not completely satisfactory. I will then propose my own way of understanding what’s going on.

One school of thought I’ll call the Disappointed Optimist. The DO sees China’s legal system as a work in progress, constantly heading towards the kind of system the DO sees as desirable (an idealized version of the legal orders of the developed West) but also constantly subject to setbacks: the Antirightist Movement in the late 1950s, the Cultural Revolution in the mid-1960s, the June 4th massacre in 1989, and now the current crackdown. At each setback the DO is strongly tempted to throw up his hands in despair and may even do so, but eventually his innate optimism gets the better of him, and the inevitable post-setback recovery makes him think that perhaps China is really on track this time. The DO’s response to the current crisis is to declare that China has reneged on its commitment to the Rule of Law and is now moving backwards—a direction that can only be ascertained and labeled if one has a theory about where the legal system is and ought to be heading.

Another school of thought is the Realist Separationist. The Realist Separationist sees himself as having clearer insight than the sentimental, hand-wringing DO. According to the RS, the Chinese legal system can be divided into...