By Jerome A. Cohen
I've just uploaded on my SSRN my latest article—"Law's Relation to Political Power in China: A Backward Transition," which is slated to appear in Social Research: An International Quarterly in the Spring of 2019.
In the article, I examine China's legal progress and regress in recent years. While noting certain legislative and judicial advances, I discuss the continuing reality of the unchecked powers of the police, the plight of Chinese human rights lawyers and the newly established National Supervision Commission that significantly expands the Chinese Communist Party’s incommunicado detention system to all deemed to be government officials.
I'm pasting the introduction below. Comments are welcome!
Law's Relation to Political Power in China: A Backward Transition
Social Research: An International Quarterly, forthcoming 2019
Jerome A. Cohen New York University School of Law
Introduction
By and large, for the past dozen years, China’s professed transition toward the rule of law has witnessed more setbacks than progress. The extent to which the exercise of governmental power should be subject to domestic and international legal restraints continues to be a matter of enormous importance. This is true in every country and in relations among countries in our increasingly interdependent world. The earthshaking impact of Donald Trump’s election to the American presidency has made the relationship of law to power as preached and practiced by the United States a virtually universal concern. Yet, as Americans and others strive to cope with this new challenge, the world is also increasingly anxious about how a rising China—with more than four times the population of the United States and almost as much economic strength—respects the “rule of law” at home and abroad.
This essay, building on the excellent analysis by Jean-Philippe Béja (Social Research: An International Quarterly, this issue) updating his earlier overview of the political situation in the Central Realm, will focus on China’s domestic legal situation. In doing so, we must be fully aware that the People’s Republic of China (PRC)—an increasingly oppressive Marxist-Leninist dictatorship—denies foreign scholars, and even its own people, the opportunities for knowledge and analysis that American freedoms of expression and transparency offer domestic and foreign observers of the United States. I regret the limitations that these restrictions impose upon my comments.
Keywords: China, rule of law, legal reforms, human rights lawyers, police powers, National Supervision Commission