Explaining China's Legal Flexibility: History and the Institutional Imperative

Abstract

China’s legal system appears to harbor a major tension, or even a paradox. Certainty in law facilitates economic progress, which most observers agree the Communist Party requires to maintain its power—yet the Party has opted for a flexible legal system that often impedes predictability. Prior studies explain China’s legal system as a product of certain constraints and as an expedient that allows for policy adjustments. These factors undoubtedly are at work but do not fully explain the rationale for a legal design seemingly at odds with the Party’s economic goals. To obtain a fuller view, it is necessary to consult the historical circumstances in which the designers of China’s legal system were embedded. This Paper argues that the Party’s reformers achieved a percipient historical insight: the Party would require an ongoing competitive advantage in institutional entrepreneurship to survive after Mao. Moreover, the reformers understood this competency to embody not only the substance of policy, but also, crucially, the Party’s institutional stewardship. Of its many advantages, flexible law reinforces the Party’s dominance in institutional entrepreneurship, enabling the Party to impede rival entrepreneurs without disrupting the broader economic frameworks in place. *Assistant Professor of Legal Studies, Parker College of Business, Georgia Southern University (juwevans@alumni.iu.edu). I presented this paper at the ALSB annual meeting in Savannah, Georgia (August 2017) and at the Seventeenth Huber Hurst Research Seminar at the University of Florida (February 2018), and thank the Hurst Seminar participants for their detailed feedback: Robert Bird, Leora Eisenstadt, Robert Emerson, Stephanie Greene, Stephen Park, Robert Prentice, Michael Schuster, Abbey Stemler, Robert Thomas, Jeff Todd, and Deepa Varadarajan. Larry DiMatteo’s feedback was particularly extensive and insightful, and I am grateful to have had his guidance. I am indebted to Chris Brkich for his comments on a later draft. I thank Jennifer, Anna, and Emma for their love and support. Any errors are mine.