The Legal Maladies of 'Federalism, Chinese-Style'

In the study of Chinese law, the theme of “central-local relations” has rarely been the focus of theoretical, empirical, or even doctrinal analysis. Instead, scholars have privileged judicial institutions, general discourses about the rule of law, and their relations to authoritarianism as themes for inquiry. This is of course not unlike the study of legal systems elsewhere: the literatures on federalism and on the rule of law, while each vast in themselves, rarely overlap. In this chapter, I summarize arguments I make elsewhere that the allocation of power and responsibilities among different tiers of government has in fact had major influences on the rule of law in China. Specifically, extraordinary legislative centralization has resulted in a radical short supply of legal rules in virtually all areas of governance. Meanwhile, the extraordinary decentralization of policy implementation has directly reduced compliance with and enforcement of the laws, and indirectly undermined the development of legal institutions and the legal profession. The adverse consequences of legislative centralization and enforcement decentralization are also mutually reinforcing. Overall, these twin arrangements may have held back the development of the rule of law to a greater degree than even China’s authoritarian government itself would like.