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Abstract
This article uses Ernst Fraenkel's dual-state framework as an analytical tool to study those conflicting imperatives and constitutional tensions with a focus on the power to detain. This article makes the argument that China has emerged as a dual state with a normal state that functions increasingly with a rule-based government in inter-personal matters and a prerogative state that solidifies control in areas that are regarded as political sensitive. Overall, while the equilibrium between the normative and prerogative states has been evolving in China, it has remained stable. The Party has been able to build a relatively self-defined and self-referencing legal system to provide the certainty and order that the Chinese political economy demands while maintaining a zone of exception, expansive and continuing to evolve, for the prerogative state to safeguard authoritarian rule.

Public interest litigation (PIL) is a form of socio-legal activism. PIL originated in the United States, and spread, through the aggressive promotion of U.S.-centric rule of law, to China, where it has had a significant impact on socio-legal activism since the 1990s. This Article explores both the process through which human rights discourse is translated into practice by activist lawyers and human rights defenders, as well as the circumstances that cause socio-legal mobilization to fail or succeed. This Article examines the collective and sustained endeavour by human rights lawyers and other activists to advocate for the rights of specific communities through a rights complex, composed of activist lawyers, NGO leaders, and citizen journalists, as well as supporters within state institutions, Chinese society, and the international community. This Article looks at the institutionalized manner through which legal cases facilitate socio-legal mobilization to serve the broader objectives of educating citizens, enhancing the capacity of civil society, and making the government more accountable and responsive. The principal argument is that once citizens are endowed with legal rights and institutions are put in place for their implementation, the remaining issue is raising rights-awareness among rights-bearing citizens and generate demand for rights in society and channel those rights to institutions. Lawyers and other rights defenders play an indispensable bridging function in translating rhetoric to practice.

This article first studies the 2015 crackdown on human rights lawyers in China and the context in which the crackdown took place. It then analyses the development of three types of human rights lawyers since 2011—the weiquan (rights protection) lawyers, the sike (die-hard) lawyers and the gongyi (public interest) lawyers—the interaction among them and the challenge they pose to the authoritarian governance. Finally, the article proposes three likely scenarios for human rights lawyering in China. (J Contemp China/GIGA)