Social movements and the law in contemporary China : a comparative perspective

Abstract

In the past three decades, China has witnessed the emergence of new social movements, particularly the weiquan movements, which took place simultaneously with legally significant developments. In contrast to their counterparts in democratic countries, social movements in China have emerged in a legal environment characterized by a thin rule of law with a low level of liberal political morality. Against this background, this thesis explores the interaction between social movements and the law in contemporary China, and with reference to the experience of Taiwan and South Korea during their authoritarian periods and transitions to democracy. By applying the political opportunity and the resource mobilization theories of social movements to the field of law, this thesis analyzes the opportunities and constraints embedded in the legal structure of China that encourage or discourage social movements, and it also examines how rights advocates organize and mobilize legal resources for social campaigns given the existing legal opportunities and constraints. This thesis first surveys the developmental trajectories of social movements and the legal structure in China, Taiwan and South Korea under different constitutional modes. Then, following the rights support structure approach put forth by Charles Epp, the thesis is organized into three main components, with focus on rights lawyers, rights NGOs, and their legal mobilization (primarily strategic litigation and citizen petition).

Generally speaking, the findings of this research show that social movements and the law have interactive impacts on each other in contemporary China. The law has played a Janus-like role in social movements in China by both facilitating and restricting the mobilization of social movements. On the other hand, social movements have sought to steer the thin rule of law in China toward the direction of greater protection of human rights and more constraint on the power of the state. However, the interactions between social movements and the law show that it is hardly possible to achieve a full-fledged thin rule of law without a parallel development of liberal political morality. Although legal development in China has provided some room for legal mobilization in social movements, the party-state and its legal structure prevents the escalation of social movements in China to a higher level of mobilization and politicization, in comparison with their counterparts in Taiwan and South Korea during their authoritarian periods. The rights support structure in the civil society of China hardly has any external partners from political society in promoting greater public mobilization. Based on a comparative study, the research casts doubts on the hypothetical sequence of the development of the rule of law to democratization.

This study is significant in several aspects. First, it enriches the studies on social movements and the law in authoritarian societies. Second, it contributes to a better understanding of the rule of law under the party-state authoritarianism of China. Third, the comparative study helps to provide a better understanding of the different types of authoritarianism and relevant constitutional and legal practices, especially party-state authoritarianism. The study shows the peculiarities of the legal complex in the party-state context of China, which can be distinguished from that in other types of authoritarian systems. Finally, this study sheds light on the relationship between the development of the rule of law and democratization as well as the prospects for social movements in the future in China.