Marianne von Bloomberg explains:
In his book from the year 2000, Stanley B. Lubman famously likened the state of Chinese law since Reform and Opening set in to a bird in a cage. Today, 20 years later, Sida Liu revisits this metaphor, asking: Has law in China become the cage instead?
of the most interesting aspects of the book is the underlying premise--one of confinement. The West prides itself on such confinement--from the confining of King John through Magna Carta, to the confinement of taboo societal impulses (racism, ageism, religious, ethnic and other forms of discrimination) through law. The liberal democratic West, it might be argued, invented both the mechanics and ideology of a cage of regulation around politics--expressed either through the political branches, or more recently by caging the scope of discretionary decision making by the administrative apparatus of public organs and (increasingly) private enterprises. The problem, of course, is that cage makers tend to prefer their own brand and to look with suspicion on the work of cage makers with quite different political-cultural sensibilities. With that in mind, the essay provides an excellent typology of the way in which China's cage of regulation has been constructed to do what it was meant to do--to put the party in the center, and to mold the masses in its own image. In the process, the essay doers an excellent job of analyzing both the construction of this cage and the way that it makes the increasingly obvious differences between what is caged in the liberal democratic cages and what is caged in Chinese Marxist bird cages. Global society loves its cages of regulation--legalization remains one of the great public goods produced by the political cultures of the late 20th and early 21st centuries. But like everything else two things remain contentious--the ideologies which such legal cages materialize, and especially from the perspective of China, the gulf between the majesty of the rules on paper and its operationalization in fact. That alone makes this a must read.
I am cross posting the essay below. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: if you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg.
A new paper by Sida Liu
How did Chinese law change in the first two decades of the 21st century? In his article Cage for the Birds: On the Social Transformation of Chinese Law, 1999-2019, Sida Liu flips the metaphor that Stanley B. Lubman used in his seminal book on Chinese law in the late 20th century, Bird in a Cage, to trace the Chinese legal system’s internal institutionalization and party inscription. Internal institutionalization refers to the vast improvement of the Chinese legal system’s internal coherence and formal rationality with the promulgation of thousands of new laws and regulations in the early 21st century. Party inscription refers to the Chinese Communist Party’s explicit reassertion of its dominance over the Chinese legal system since Xi Jinping took power in 2012, including incorporating the party disciplinary system into the National Supervision Commission, politicizing the judiciary and the bar exam, setting up party cells at law firms and nurturing legal professionals who are loyal to the party, and persecuting politically liberal lawyers and legal academics.
As a result of those two processes, Chinese law is no longer a chirping and stirring bird as it was in the 1990s, waiting to be freed from the political cage, but an increasingly large, complex, and repressive cage for the party-state to confine all kinds of birds. In this article, Liu identifies four types of birds currently trapped in the legal cage: hawks, crows, sparrows, and ostriches. Hawks are party and government officials who are potentially the subjects of efforts to combat corruption. Crows are activists who pose potential threats to political and social stability, including activist lawyers, feminists and LGBT (lesbian, gay, bisexual, transgender) activists, labor organizers, and religious activists. Sparrows are millions of netizens who form the “surrounding gaze” in China’s vibrant yet heavily censored cyberspace. Ostriches are ordinary Chinese people who usually turn a blind eye to politics and simply hope to live in peace and prosperity. Taken together, this typology of birds provides a view of Chinese law not with any doctrinal or institutional classification system but from the perspective of the various kinds of people living in it and influenced by it, as well as the ways in which the party-state uses law to control them.
To give a snapshot of how this new bird-cage metaphor works, with Xi Jinping’s massive anti-corruption campaign in the 2010s, laws for combating corruption in China have evolved from two parallel institutions of the CCP’s Commission for Discipline Inspection (CDI) and the anti-corruption bureau in the procuracy to the unified National Supervisory Commission. As a result, the extralegal shuanggui procedure, in which corrupt officials were taken by the CDI for questioning and prolonged detention, was legalized and the scope of the CDI’s work has expanded from CCP members to non-party members in the state sector. In other words, the invisible black box of shuanggui is not replaced but, rather, reinstalled in a harder and stronger legal box controlled by the CCP. All the “hawks”, corrupt or not, are confined to this legal box now.
In the rest of the article, the bird-cage metaphor is applied to other areas of Chinese law involving political stability, internet control, and everyday life. The article ends with a not-so-hopeful note. Liu argues that the idea of law as a driving force for economic and political change, which is implied in Lubman’s “bird in a cage” metaphor, is merely an illusion of law-and-development scholars and practitioners. For most of human history, the fate of law has always been a cage, especially when it is situated under an authoritarian state that prioritizes instrumentality over proceduralism and focuses on reducing “restlessness” rather than “arbitrariness”. However, the fate of the birds confined in the new Chinese legal cage remains uncertain.Professor Sida Liu joined the Department of Sociology at the University of Toronto in 2016 and holds a non-budgetary cross-appointment at the Faculty of Law. His research interests include the sociology of law, organizations and professions, criminal justice, globalization, and social theory. He has conducted extensive empirical research on China’s legal reform and legal profession, including the globalization of corporate law firms, the political mobilization of criminal defense lawyers, the feminization of judges, and the career mobility of law practitioners. Professor Liu is the author of, among others, Criminal Defense in China: The Politics of Lawyers at Work (with Terence C. Halliday, Cambridge University Press, 2016).