Risk, political security and extra-judicial penality under Xi
| Published date | 01 November 2023 |
| DOI | http://doi.org/10.1177/13624806231189266 |
| Author | Enshen Li |
| Date | 01 November 2023 |
| Subject Matter | Articles |
Risk, political security and
extra-judicial penality under Xi
Enshen Li
The University of Queensland, Australia
Abstract
In authoritarian regimes, risk tends to be politically positioned to reflect the ruling
party’s interests, needs and priorities. In this article, I focus on the People’s Republic
of China (China) as a case study to isolate the issue of risk, and more specifically, analyse
why risk is framed as a political tenet, what becomes the evidence of such risk, and how
it relates to the country’s legal approach to maintaining political stability in the Xi Jinping
era. This article critically scrutinizes the latest political dynamics and police practices to
argue that China has formulated an extra-judicial penal jurisprudence through what I call
‘forward-leaning’policing (前倾式警务) against those who are perceived to present a
threat of political harm. By using data on 2226 cyber-dissident cases during 2014–
2021, my analysis points to this ‘warrior style’policing being an intensified application
of coercive police actions, which is heavily weighted towards incarceration as the
main approach to addressing political dissent, especially through administrative deten-
tion. In doing so, the judicial process that traditionally determines conviction and senten-
cing is either circumvented or reduced to symbolic significance.
Keywords
China, police power, political security, punishment, risk
Introduction
In the realm of criminology, risk has taken a pivotal role in shaping and informing our
perception of crime. The aftermath of 9/11 is a prime example of this, where the initial
Corresponding author:
Enshen Li, School of Law, School of Law, City University of Hong Kong, Tat Chee Ave, Kowloon, Hong Kong
SAR.
Email: enshenli@city.edu.hk
Article
Theoretical Criminology
2023, Vol. 27(4) 638–659
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13624806231189266
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attack was then followed by a series of calamitous terrorist attacks around the globe
(O’Malley, 2010). Theorists see growth in reported crimes, particularly violent and
sexual ones, not only as a major source of risk, but also as endangering social safety
and increasing fear of crime in public spaces (Zedner and Ashworth, 2019). While this
risk is concerned mostly with the dangerousness of individuals at risk of engaging in
crime, it also entails ‘harm to others, as well as harm that might be caused to oneself’
(Tulich, 2017: 19)—a direct reflection of the harm principle articulated by John
Miller.
1
This wide denotation of risk has been echoed by many others (Bronitt and
Easteal, 2018; Cole, 2014; Sunstein, 2005) whose studies illustrate that risk has trans-
cended the boundaries of criminal law, and taken root in fields such as public health,
mental health, immigration policy and traffic regulation.
The expansion of the meaning of risk has been accompanied with diverging defini-
tions across the world. If the dominant tenor of risk hinges mainly on public/self-harm
in western democracies, the contours of risk appear to be more extensive in authori-
tarian regimes. Specifically, the risk of harm and its connotations in illiberal regimes
tend to display a stronger mark of political consideration and manipulation. To auto-
cratic leaders, not only is risk the catalyst of public insecurity, but it has become ‘a
predominant way of governing all manner of problems’(O’Malley, 2010: 3), particu-
larly as a form of social control. In this article, I focus on China as a case study to
isolate risk, and more specifically, analyse why risk is framed as a political term,
the evidence of such risk and how it relates to the ruling party’s quest for political
stability in the Xi Jinping era. In doing so, one aim of this article is to unravel the
wayinwhich‘political risk’resonates with the rationale of the State and its legal mea-
sures, which, in turn, reflect the indigenous conditions of this eastern society. In par-
ticular, my study draws on a critical scrutiny of the latest political dynamics and police
practices under Xi to argue that China has formulated an extra-judicial penal jurispru-
dence consisting of what I call ‘forward-leaning’policing against those who are per-
ceived to present a threat of political harm. The term ‘extra-judicial’is susceptible to
various interpretations as it has been laden with normative implications; but by adopt-
ing a literal rule of interpretation, ‘extra-judicial’refers to law enforcement activities
that occur outside of or without the authorization of the judicial system (Graham,
1952). In the context of forward-leaning policing, despite procedural rules existing
for police to abide by when exercising their coercive powers, the use of police custo-
dial measures—either administratively or criminally—fly under the radar of the judi-
ciary (Biddulph, 2007; Li, 2020). This has enabled public security organs to readily
apply harsh measures at their discretion without judicial supervision and scrutiny,
depending on the circumstances of the matter.
Foremost, I will broadly sketch the dimensions of political risk in today’sChina.My
discussion pivotson the advent of increasingly diverse societal issues, which are envisaged
as menaces to the political stability in which the Chinese Communist Party (the Party)’s
legitimacy is predicated. Above all, these emerging political risks have deepened the
Party’sfixation with the preservation of stability in their hope to maintain a permanent
monopoly on power. Next,I willflesh out the State’s response t o these perceived pol itical
challenges. I will examine 2226 cases involving so-called ‘cyber-dissidents’during 2014–
2021 to tease out the gist of forward-leaning policing—which refers to the securitization of
Li 639
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