Sovereign Power and the Law in China

Zones of Exception in the Criminal Justice System

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In China the coexistence of arbitrary detention and a transition towards a rule of law is either seen as an oxymoron, or as an aberration. This book analyses under-researched institutions and practices in China’s criminal justice system, arguing that derogations from the rule of law constitute an organic component of the legal order. Hidden behind the law, there lies sovereign power, a power premised on the choice to handle certain issues through procedures that derogate from rights. This theoretically sophisticated study overcomes the current impasses in analyses of China’s criminal justice. The result is an highly innovative reading of law and legality in the PRC, useful to scholars of contemporary China, mainstream political theorists, philosophers of law and policy makers.

"This important book heralds a new chapter in the comparative study of Chinese law and society...it presents and analyses a tremendous wealth of information, above all from contemporary Chinese sources...[the book] provides a new basis for deeper comparisons of the emerging Chinese 'reforming Leninist' model with the 'rule of law' and its suspension in Western countries." - Magnus Fiskesjö, Cornell University
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Biographical Note

Flora Sapio, Ph.D. (2004) in Contemporary China Studies, University La Sapienza of Rome, is a lecturer in social and juridical institutions of the Far East at the Università degli Studi di Napoli “L’Orientale”, Italy. She publishes on crime and criminal justice.

Table of contents

Chapter 1. Introduction

1.1Paradoxes
1.2The objective of this book
1.3 Concerns
1.4 Haunting questions
1.5 Conceptual gaps
1.6 The State of Exception
1.7 Beyond liberal democracy
1.7.1 Bare life
1.7.2 The zone of exception
1.8 Legal exceptionalism
1.9 Structure and method

Part One. The Force of a Forceless Law

Chapter 2. Legal Nihilism—State of Exception

2.1 Anomie
2.2 Exceptions in China’s constitutional law: Martial law and emergency powers
2.2.1 Martial law powers
2.2.2 Emergency powers
2.3 Exceptions in China’s criminal law
2.4 “Evil cults”
2.4.1 Religious groups and the law
2.4.2 The Falungong and article 300
2.4.3 Is meditation a crime?
2.4.4 The 6-10 office
2.5 Conclusion

Chapter 3. Shuanggui

3.1 The CCP’s regulatory powers
3.1.1 Jurisdiction
3.1.2 A parallel “criminal code”
3.2 Investigative and detention powers
3.2.1 Historical antecedents
3.2.2 From summons to investigative detention
3.2.3 From investigative detention to shuanggui
3.3 Why shuanggui?
3.4 Enforcing shuanggui
3.4.1 Harsh interrogation techniques
3.4.2 Psychological manipulation
3.5 Conclusion

Chapter 4. Stop-and-Question

4.1 Precursors of criminal behavior?
4.2 Stop-and-question
4.3 The difference between stop-and-question and summons
4.4 Problems and abuses
4.5 Disposable beings
4.6 Reforming stop-and-question?
4.7 Conclusion

Part Two. Exceptions in Everyday Spaces

Chapter 5. Para-police forces

5.1 The birth and revival of para-police forces
5.2 Legal mechanisms
5.3 Public order joint defense teams
5.3.1 Powers
5.3.2 Composition, organizational structure, and relationship with the regular police force
5.4 Private security companies
5.4.1 Typology, relationship with the regular police force, and composition
5.4.2 Enhancing police control
5.5 Urban management officials
5.5.1 Legalizing inspection teams
5.5.2 Administrative law enforcement departments
5.6 Urban divides

Chapter 6. The Camp

6.1 The evolving legal regime 1990–2008
6.2 The roots
6.3 Birth of the camp
6.4 Rebirth of the camp
6.5 Compulsory rehabilitation and RETL
6.6 Commitment to health recovery centers
6.7 Conclusion

Chapter 7. Coercive Interrogation

7.1 The transformation to bare life
7.2 The PRC media and torture
7.2.1 Torture in the press
7.2.2 Torture on the internet
7.3 Lifting pain out of the body
7.4 Posthumous rehabilitation
7.5 Episodes of ordinary violence
7.6 Friends and enemies
7.7 Reform?
7.8 Conclusion

Chapter 8. Conclusion

8.1 Mapping exceptions
8.2 Resilience
8.3 Dual structures
8.4 Modes of exception
8.5 Modes of bare life
8.5 The power and limitations of grand theory

List of legal documents

List of references

Index

Readership

China scholars, China legal scholars, political scientists, legal scholars, sociologists of law, legal philosophers, political philosophers, policy-makers, NGOs.

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