(P30) The Authoritarian Logic of Regulating through the Judiciary
Michelle Miao, Assistant Professor, Faculty of Law, The Chinese University of Hong Kong
The proposed panel format:
This panel will compose at least four papers respectively on 1) the internal regulation of the judiciary in China through performance targets, 2) the regulation of government-appointed and private lawyers in the context of the recent judicial reform; 3) criminal sentencing as an instrument of government regulation in cases relating to sexual offenses, drug offenses and environmental-related offenses; and 4) the judicial regulation of China’s emerging platform economy (e.g. digital financing and technology platforms).
These papers, taken together, seeks to establish new theoretical frameworks concerning the roles of the judiciary in social governance in China. There has been an indispensable body of existing literature investigating the connection between regulation strategies and the feature of China’s authoritarian Party-state. Among these crucially important theoretical inquiries are critical discussion of state regulation (Lo et al. 2009; van Rooij et al, 2016; Zhu & Chertow 2017) in the context of authoritarian resilience (Nathan, 2003) and responsive authoritarianism (He & Warren 2011; Weller 2012; Reilly 2011). Most of these existing literature, however, centres around a binary state-society tension to the extent that even the role of new actors in China’s regulatory landscape (van Rooij et al, 2016) are analysed in this context. The papers on this panel are built on a triangle framework among the state, the society and the intermediaries. Courts, prosecutors and lawyers are regarded as neither part of the core state bureaucracy nor a constituent element of the civil society. While they are under tight state control, they can also exert a considerable degree of autonomy and power. In China’s authoritarian regulatory landscape, they are the crucial instruments of authoritarian governance, but they also pursue their institutional interests. The papers will study the roles of these third-dimensional legal entities not in terms of their roles in the direct participation of regulation activities (Zhang 2016). Rather, the judicially and legal personnel are perceived as complement to and an alternative to traditional state regulatory mechanism. This nascent approach to theocratization will broad the purview of ‘regulation’ in an authoritarian setting and reveal crucial logic behind the collusion and competition between state authorities and the third-dimensional intermediary institutions: control risk and promote legitimacy.