New Bottles for Old 'Legalism'? A Case Study of the Social Credit System

Abstract

Since 2014, a set of legal reform initiatives have been developed in China with the purpose of 'comprehensively promoting ruling the country according to the law (RCAL)'. Certain initiatives seem to have been inspired by utilitarian considerationsrather than modern principles of rule of law. This paper compares and contraststhe renewed ideology of RCAL with the creeds of legalism that prevailed in ancient China, mainly through analysing a major reform initiative, i.e. the Social Credit System (SCS). The SCS is intended to operate nationwide by 2020. Purporting to tackle dishonest conducts across the society, the SCS assesses the “trustworthiness” (信用 ) of individuals in keeping their promises and complying with various norms, mainly through data-driven profiling and a “joint punishment” mechanism. Under pilot schemes, individuals are given social credit ratings based on datafied records about their “discrediting behaviours” (失 信行为 ). Individuals with prescribed ratings are subject to multiple punishments imposed by different party and/or state authorities that affect their interests in various fields, e.g. financial loan, entry to the market, and access to public services, etc. These pilot schemessuggest that a system of rules distinct from the tenets of the rule of law is unfolding. First, viewed from a realist perspective, current SCS rules ignore the division between legislative norms, administrative norms and party norms, extending binding effect to all norms as endorsed by the ruling party. Second, from a doctrinal legal point of view, the regulatory approach under these SCS rules is based on the “credibility” that differs from the “liability” on which China’s modernized legal system is based. The SCS that is taking shape approximates to the system of rules championed by the legalists which adopted a realpolitik concept of law and focused primarily on the punitive function of law. However, the SCS maintains ambiguous ideological concepts, which deviate from the legalist pursuit of certainty. These findings may contribute to our understanding of the common features and ideological foundationsof extra-legal but consistently enforceable rules in China which are insufficiently addressed through the lens of rule of law.