Redefining Law in China

Abstract Although there is a growing body of literature on the role of law under authoritarian regimes, scholars have paid little attention to authoritarian legal ideology or conceptions of legality in contemporary authoritarian states. This Article presents the first in-depth study of the Chinese Communist Party’s recent novel attempt to introduce and implement an official legal ideology under the banner of “Xi Jinping’s Thought on the Rule of Law,” one which aims both to create a definitive theory of law and to offer a guide to China’s legal development. We examine four principal components of this legal ideology: the theoretical definition of the relationship between law and the Party; the push towards Party-led non-litigation dispute resolution that de-emphasizes courts; efforts to increase the extraterritorial reach of Chinese law and to boost China’s influence in transnational law and legal institutions; and attempts to integrate both Party-defined morality and the Party’s own internal rules and regulations into the legal system and the definition of legality. Through these efforts, the Party is attempting to provide a new definition of legality, one that is coextensive with Party authority and derives from the Party’s internal normative sources. As a result, legality becomes a vehicle for the Party to consolidate its legitimacy and assert its supremacy. Examining contemporary Chinese legal ideology carries methodological implications, highlighting the importance of understanding how authoritarian systems conceive of and define law so as to better evaluate the functions of law under authoritarianism. Understanding this new legal ideology also reveals how the definition of law is increasingly contested, in particular as liberal conceptions of legality encounter new challenges both within liberal democracies and globally.