Article: Is it possible to be optimistic about rule of law in China — Q&A with Neysun Mahboubi

Sup China

Is it legal for the government to just go into people’s apartments and spray everything with disinfectant, or to lock people up behind fences? Some Chinese legal scholars asked questions like these. To understand what that means in today’s China, I talked to Neysun Mahboubi, a research scholar at the Center for the Study of Contemporary China, University of Pennsylvania, and the host of its podcast.

To understand the tone of our conversation, you might want to bear in mind that my nickname for Neysun is “the Incorrigible Optimist.” Obviously, I tend to be a glass-half-empty kind of guy.

We chatted by video call on May 24. This is an abridged, edited transcript of our conversation, part of my Invited to Tea interview series.

—Jeremy Goldkorn

You’re an expert on administrative law in the U.S. and in China. Can you tell me exactly what “Chinese administrative law” means?

In broad terms, administrative law is the law that structures the way in which government relates to citizens. And, at least in the U.S., we typically think of it in terms of, first, the law or the rules that the government has to follow when it makes decisions that affect citizens, and, also, the law and rules around how citizens can seek redress when they feel that their rights have been violated by the government. In China, this second part can include petitioning, but now also seeking administrative reconsideration, and/or pursuing litigation in court.

What I’ve spent my career studying is the development of what we might call a modern administrative law in China, and that really starts with the passage of the Administrative Litigation Law in 1989 — just a couple of months before the crackdown at Tiananmen Square. This is the law that allows Chinese citizens to sue the government. And there’s a fascinating backstory to how that law came about, how it was drafted, the different kinds of models from around the world (including U.S. administrative law) that Chinese legislative actors looked at in drafting that law.

From that starting point of establishing how citizens can claim formal legal redress for violations of their rights by the government, China has developed a much broader landscape of administrative law in the years since. A whole suite of particular laws has been enacted that relate to how the Chinese government is supposed to act in all the different ways that one could classify government as acting. So, for example, there’s a law on administrative punishment, one on administrative licensing, another on administrative compulsory enforcement. All of these have been passed sequentially over the years since the passage of the Administrative Litigation Law in 1989.

What I look at as a scholar of Chinese administrative law is the overall landscape today, where you have both of those dimensions that I discussed in my definition earlier: a dimension that has to do with the rules that government has to follow in acting vis-a-vis citizens, and a dimension that has to do with how citizens can try to seek redress of grievances when they claim that government didn’t follow those rules it was supposed to follow.

In China, I’ve had two…well, I’ve had several, but two run-ins with the law in China that are relevant to my question, in which I was talking to police officers and questioning the legality of things they were doing. And two different policemen said to me, “Your bullshit about law means nothing. We decide what the law is.”

As you’ve watched the development of administrative law, how seriously can we take it and how cynical should we be about its actual implementation?

One way that I can answer that question is by saying that, from early on in the Reform and Opening period, there was a very top-down emphasis on building up something like a modern legal system that would do a better job of constraining government action, but also of ordering private relations between citizens. A big part of the motivation for this was the experience of the chaos of the Cultural Revolution. Another motivation was to encourage economic activity, generally, and also to attract foreign investment. So, on the whole, there were a lot of overlapping reasons for a high-level emphasis on developing a modern legal system. And out of that, an entire ecosystem of Chinese law and legal institutions has emerged.

It’s very important for me to emphasize that the ecosystem is not just limited to the actual laws that have been passed by the National People’s Congress or the regulations that have been passed by the State Council. It also includes legal professionals: the professors, judges, and lawyers…and also officials within the government who are tasked with a sort of legal portfolio in their jobs. The driving logic of the people who staff that ecosystem is not necessarily the exact same as that of the Chinese leadership at any given time, which has often resulted in a conflicted relationship between the two.

In those areas of conflict between the legal system and political power (in particular with the prerogatives of the Chinese Communist Party), the leadership has generally wanted to emphasize political imperatives over legal constraints. But many if not all of the people who staff this legal ecosystem do actually believe in its values, which are separate from raw political power.

And so out of all that, I think there is a reality to the Chinese legal system that has emerged, over the past 40 years, that isn’t so easy to just dismiss as simply some kind of a Potemkin village.

Now, of course, you don’t want to overemphasize that reality because the nature of political power in China is such that there are lots of different channels in which, when push comes to shove, political power can overwhelm whatever legal constraints there might be. But the legal constraints are not fake. There is some reality to them.

But examples of the failure of this to work — the ongoing harassment and imprisonment of peaceful dissidents, the Uyghurs locked in detention centers without trials, etc. — are easy to name, but I guess there must be some successes.

Is there a case, or some cases you could point to where you could say, well, the law actually worked as it was intended, and there was some kind of separation of powers that allowed a wronged citizen to in fact get redress?

Read the full interview at