Revue - Droit et société n°114/115-2023 - 43

Agency and Aspiration
own research (and occasionally work by others) to highlight two emergent themes
in scholarship on Chinese law in the twenty-first century: agency and aspiration.7
The first theme, agency, reflects a growing interest among observers of Chinese
law in identifying the " degrees of maneuverability, inventiveness and reflective
choice " shown by judges, litigants, lawyers and others involved in legal system.8
In contrast, the theme of aspiration reflects a change in China itself, rather than a
shift in scholarship. Under Xi Jinping, there has been a ratcheting up of ambition
vis-a-vis the legal system, defined as a perceptible striving not just to catch up and
keep up with other countries, but to innovate and excel.
For those outside China studies, the reason to keep reading is that China is
a critical case for understanding authoritarian law in the twenty-first century
as well as a case that complicates the enduring image of authoritarian law as an
all-powerful police state in which law is used to criminalize political opposition.
China is currently the highest visibility example of an authoritarian state in which
law is increasingly complex and important. Laws and regulations have proliferated,
as in many places around the world, as leaders have turned to law as the solution
for an ever-widening range of problems. Law has also become a key arena for
the state to project professional competence, and sometimes even reach toward
national aspirations of greatness. And particularly as China's power continues to
rise, there is reason to think that other countries might imitate aspects of China's
legal system.9
Writing about agency and aspiration is a choice to foreground themes that
were not particularly prominent in twentieth-century accounts of Chinese law,
rather than to focus on historical continuity. To be sure, these historical legacies
are substantial. Around the world, law has long been a source of legitimacy for
authoritarian leaders,10 as well as a tool to sideline political opponents, ensure
officials follow national policies and create favorable conditions for economic
7. Naturally, there are other themes that could be highlighted. This article is provocative rather than
comprehensive, meant to inspire further conversation rather than close off debate.
8. Of course, the concept of agency is much contested (and sometimes critiqued) across the social
sciences. The rough definition offered here is drawn from Mustafa Emirbayer and Ann Mische, " What
is Agency? " American Journal of Sociology, 103 (4), 1998, p. 964. DOI: 10.1086/231294.
9. For two recent pieces of scholarship that suggest other countries may imitate China's legal system,
see Eva Pils, " China's Dual State Revival Under Xi Jinping, " Fordham International Law Journal,
46, 2022, and Mark Jia, " Special Courts, Global China, " Virginia Journal of International Law, 62 (3),
2022. Pils sees a possibility that China's reinvention of the dual state may go global, and Jia discusses
China's " desire to become an exporter of legal institutions and ideas after decades of learning from
foreign legal models, " p. 598.
10. See, for example, Maciej Kisilowski's discussion of law in Socialist Poland. Maciej Kisilowski,
" The Middlemen: The Legal Profession, the Rule of Law, and Authoritarian Regimes, " Law & Social
Inquiry, 40 (3), 2015, p. 700-722. As he writes, " Especially for the urban intelligentsia stubbornly
unconvinced by Marxism, legality was just about the only argument that the regime could use in the
absence of brute force, " p. 715.
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Revue - Droit et société n°114/115-2023

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