Suchergebnisse

Introduction -- Setting the stage -- Ideological cynicism meets theoretical skepticism -- Useful paradoxes : the conservative socialist ideological position -- Thick mainstream, thin liberalism and vice versa -- Avant-garde renewal and nostalgia -- Conclusions

The Chinese approach to law and development has been perceived in terms of experimentalism and resistance towards globally applicable development models. In recent years, however, Chinese Communist Party (CCP) ideologues and pro-establishment legal scholars have become increasingly ambitious about the global significance of Chinese legal thought. CCP ideologues and Chinese legal scholars' global ambitions are particularly evident in writings on "Xi Jinping Thought on the Rule of Law." According to these ideologues and scholars, Xi Jinping Thought on the Rule of Law is the "height of world history and global thought," and provides a new governance model for developing countries. Yet, while Party ideologues espouse the globally pathbreaking nature of Xi Jinping Thought on the Rule of Law, they are often unconcerned with describing the specific legal theoretical advantages of this form of legal thought in comparison to existing modes of legal thought. This article argues that CCP ideologues' global ambitions and the discrepancy between Party ideologues' ideological and theoretical ambitions should be understood as consequences of domestic Chinese politics. While globally ambitious speech in CCP ideology and pro-establishment legal scholarship reflects China's international aspirations, it does not aim to persuade foreign audiences about the advantages of Chinese legal thought. Instead, this form of ideological speech aims at producing and reproducing political relationships within the Chinese body politic. Insisting on the global relevance of Chinese legal thought is one method for achieving this goal. At least for now, globally ambitions CCP ideology is domestic in its aspirations.

AbstractThis article argues that the governance project of the Chinese Communist Party (CCP) oscillates between rule-based formalism and anti-formalist scepticism about rule-based governance. In this dichotomy, anti-formalist arguments support CCP leaders' efforts to maintain and increase the Party's influence over the judiciary and other state organs, which is a key justification for the Party's power. Formalist language, in contrast, supports Party leaders' attempts to constrain lower-level cadres' uses of power within the Party. Formalist language is particularly prominent in the writings of Party ideologues on the interpretation of the Party's internal regulations, including the CCP Constitution. At the same time, Party ideology also provides for various anti-formalist arguments about rule-based governance within and outside the Party. Paradoxical as it may be, the Party leadership seeks to exert rule-transcending political leadership through formal rules. While the focus of this article is on China, it argues that other illiberal regimes may also be studied in terms of similar, potentially incoherent approaches to rule-based governance.

This article describes attempts in Chinese legal scholarship to produce indigenised forms of jurisprudence. These attempts are partly animated by an ethos of anti-formalism and the assumption that Chinese legal thought and the Chinese approach to adjudication are more flexible and more responsive to social concerns than (Western) legal formalism. Interestingly, prominent currents of European and American jurisprudence have made use of similar anti-formalist arguments since the beginning of the twentieth century. The anti-formalist impulse and the calls to indigenise Chinese jurisprudence are therefore best understood as performative strategies that support specific ideological projects, such as the effort to legitimise China's political status quo. (China Perspect/GIGA)