The Leviathan's Rule by Law

• DOI: http://doi.org/10.1111/jels.12093
• Date: 01 December 2015
• Author: Ji Li
• Published date: 01 December 2015

The Leviathan’s Rule by Law

Ji Li*

How and how well do authoritarian states rule by law? Extant literature does not fully

answer these questions. By analyzing a unique set of time-series data and archives, this

article investigates a variety of legal measures (the death penalty, formal judicial guidance,

and the revision and upgrade of substantive rules) implemented by the Chinese

government in response to a critical threat--pipeline vandalization. The findings of this

study cast doubt on the alleged deterrent effect of capital punishment. Moreover, it finds

the supreme judicial bodies in China to be ready servants of the state’s core interests, yet

their service adds marginal value as legal dynamics at the local level are shaped mainly by

the power distribution of relevant parties. Furthermore, the statutory upgrade does not

benefit, and may even harm, pipeline safety. As the upgrade codified the status quo of the

bargaining between the oil SOEs and the local governments, the statutory allocation of

primary protective responsibilities to the former might have relieved the latter from active

participation in pipeline protection that is essential to preventing oil thefts. Findings from

this research contribute to the literatures on Chinese law and politics, capital punishment,

and the rule by law in authoritarian regimes.

I. INTRODUCTION

Legal development in nondemocracies has attracted growing scholarly attention, spur-

ring a literature that explores the functional aspects of law and courts in those countries

(Fu 2011; Ginsburg & Moustafa 2008; Moustafa 2003; Rajah 2012).

1

Most of the studies,

however, rely on case analysis, interviews, or archival research, and many focus on the

role of courts and judicial power, neglecting the broad range of legal tools employed by

a nondemocratic state to achieve its desired policy objectives. In addition, little is yet

known about the efficacy of various legal measures.

Lack of such research is attributable to, among others, limited data, incomplete

records, inaccurate measure, and difficulties in controlling for alternative explanatory

*Associate Professor, Rutgers School of Law–Newark, 123 Washington St., Newark, NJ 07102; email: jli@kinoy.

rutgers.edu.

For valuable comments, the author thanks the anonymous reviewers, Adam Chilton, Wenkai He, James Kung,

Kellee Tsai, Steven Vogel, Wei Zhang, and other participants at the Ninth Annual Conference on Empirical Legal

Studies and the workshop held by the Division of Social Sciences of Hong Kong University of Science and

Technology.

1

Multiple definitions of democracy exist. In this article I adopt the broad definition by Adam Przeworski (1991)

and Robert Dahl (1971), that is, democracy is a political system in which the ruling party loses power through

peaceful contestation open to participation. Nondemocracies are systems that do not meet the definition.

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Journal of Empirical Legal Studies

Volume 12, Issue 4, 815–846, December 2015

variables. This empirical study overcomes these impediments by empirically investigating

a limiting case: how the Chinese government employed a variety of legal measures to

battle a constant and grave threat to its national energy security, that is, pipeline vandal-

ization. The actions taken over a period of about 10 years include applying the death

penalty to oil thefts from pipelines, issuing a judicial interpretation to clarify and

enhance criminal punishment for oil thefts, and upgrading a pipeline protection regula-

tion to a statute. The findings contribute to the literatures on Chinese law and politics,

capital punishment, and rule by law.

This article proceeds as follows. Section II reviews the literature on rule by law in

nondemocratic states and provides a brief background description for understanding

the limiting case. Next, Section III analyzes the threat of pipeline tapping to the Chi-

nese government and the three types of legal measures it took in response. Section IV

then introduces the time-series data and the models for regression analysis and discusses

the empirical findings. Section V summarizes the contributions and limitations of this

study. Section VI concludes the article.

II. BACKGROUND

A. Literature Review

While until recently “few academic studies have taken the law and legal institutions

under authoritarian regimes seriously” (Pereira 2008), no one denies that the law and

courts play an increasingly important role in many nondemocracies. In China, for

instance, the number of first-instance cases adjudicated by courts soared from

513,789 in 1979 to 8,442,657 in 2012.

2

At the same time, the number of Chinese laws

and regulations grew from a total of 404 in 1979 to 18,121 in 2005 (Zhu 2007). Had the

law and the courts not mattered at all, why would disputants bother litigating and law-

makers take the trouble to legislate?

In searching for a theoretical explanation, Ginsburg and Moustafa identify five

major functions courts serve in nondemocratic states, besides routine dispute resolution,

that is, establishing social control, bolstering regime legitimacy, disciplining agencies,

promoting economic development, and implementing controversial policies (Ginsburg

& Moustafa 2008). Illustrative examples include the special courts employed by military

dictators in Latin America to maintain political control and suppress opponents (Pereira

2008) and the highly professional and respected courts established by the PAP in Singa-

pore to handle cases of an apolitical nature (Silverstein 2008).

To a certain extent, the functional objectives of preserving regime legitimacy and

improving governance also explain the multiplication of formal law in nondemocracies. In

China, the legislation of a comprehensive set of administrative lawsand regulations aimed at

reigning in abusive government agents and legitimizing the party’s rule (Ginsburg 2008; Li

2013, 2014a; Peerenboom 2001; Pei 1997). Once pollution causedserious social discontent,

2

Data of 1979 from Zhu (2007); data of 2012 from the official website of the Supreme People’s Cour t, available

at: http://www.court.gov.cn/qwfb/sfsj/201312/t20131213_190136.htm, last checked on June 30, 2014.

816 Li

the Chinese government promulgated a series of formal rules and initiated institutional

experiments forenvironmental protection (Stern2014; Van Rooij 2006; Wang & Gao 2010),

and to quench massive labor protests that threatened political stability, the Chinese govern-

ment reformed its labor law system to a level of sophistication and protection exceeding, at

least on paper,most OECD countries (Cooney et al.2013).

3

Some legal changes may also reflect the state’s desire to meet international

demand. The evolution of the Chinese intellectual property law regime, for example,

was partially a response to pressure from the U.S. government (Mertha 2005). The even-

tual approval of the Chinese bankruptcy law was an indirect result of criticism from the

European Union (Tang 2009). Additionally, obligations under international institutions

such as the WTO explain certain domestic legal developments (Xiao 2011).

The fast-growing literature has produced many insights on the Leviathan’s rule by

law, that is, a nondemocratic state’s use of various legal measures to achieve its functional

goals, but questions remain open as to the measures’ efficacy. Quantitative empirical

research on the topic is especially lacking, for three major reasons. First, due to the high

correlation between wealth and democracy (Przeworski 2000), most authoritarian govern-

ments exist in developing countries where reliable legal data are unavailable (Clarke

2003). Second, it is often difficult to accurately measure the impact of formal laws and

legal changes. Third, without controlling for alternative explanatory variables (e.g., voli-

tion of the state), the tests for legal measures’ efficacy can produce only tentative results.

Take, for example, a government’s efforts to control pollution by making and

enforcing a more stringent environmental protection law. First, it is difficult to accu-

rately assess the practical effects of the enforcement of the law, as polluters may in

response engage in more secretive pollution methods, causing underdetection (Van

Rooij 2006). In addition, local officials may fabricate data to show improvement. Even if

the measurement is accurate, we need to control for variables that may complicate the

result, for example, seasonal changes. More importantly, lack of detectible improvement

in environmental protection may be ascribed to the state’s lack of interest in fully

enforcing the law at the cost of a systematic economic slowdown, and not to any major

flaws in the substance of the law or its legislation.

This empirical study of the legal measures taken by the Chinese government over-

comes these challenges. First, to control for state interest in law enforcement, I set out

to find formal rules governing issues of critical importance to Beijing, so the lack of

their impact will not be due to conflicting priorities at the central level. I screened all

the statutes (and their amendments) and resolutions passed by the national legislature

(the National People’s Congress or the “NPC,” and its Standing Committee or the

“SCNPC”) from 1995 to 2011.

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Of the 466 national laws and resolutions (47 by the

NPC, and 419 by the SCNPC), four clearly pertain to the core interests of the national

government, the PRC Law on Defense Mobilization, the PRC Law on the Prohibition of

3

The OECD indicators on Employment Protection Legislation 2013, data available at: http://www.oecd.org/els/

emp/EPL-data2013.xlsx.

4

The list of statutes and resolutions was reproduced from a dominant legal database in China.

817The Leviathan’s Rule by Law