The Iron Hand of the Collective: China's Legal System, Individual Freedom, and Global Norms: By Smrithi

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With the increased presence of China in the global arena, it has become necessary to study the legal and political systems of China. The People's Republic of China (PRC) exudes a civilized legal structure but the constitutional structure is well entrenched in a political culture that favors group rule over individual freedom. This paper traces the history of the Chinese constitution, describes the rights that are supposedly guaranteed by the constitution and how the Chinese Communist Party (CCP) uses the law to ensure that the state is put before the individual.

The constitutional history of China dates back to the early 20th century when there was the quest to reform and modernise governance. This was the first PRC Constitution that was adopted in 1954, after the 1949 revolution. It resembled Soviet-type constitutionalism and institutionalised Communist Party leadership. Subsequent constitutions in 1975 and 1978 were the products of radicalism of the Cultural Revolution period and solidified the primacy of the Party by removing independence of institutions and subjecting the judicial and legislative branches to the CCP (Weng, 1982).

The Constitution of 1982, which is considered a breakthrough, was intended to repair the state institutions destroyed by Maoist excesses. Some of the ideas that Deng Xiaoping included in his reformist vision included the concept of socialist modernisation, the rule of law and human rights. The 1988, 1993, 1999, 2004 and 2018 amendments added the commitment to a socialist market economy, acknowledgment of the existence of private property, and mentions of ecological civilisation and Xi Jinping Thought (Chen, 2014).

Nevertheless, these reforms are still rather semantic. The constitution is run on a system that Gao Quanxi describes as political constitutionalism, with the CCP at the end of the chain in the interpretation and application of the constitution (Chen, 2014, p. 193). The 1982 Constitution of the People’s Republic of China aimed to restore legal order after the Cultural Revolution, emphasizing socialist modernization, rule of law, and human rights (Chen, 2014). Amendments in 1988–2018 introduced private property, a socialist market economy, and Xi Jinping Thought (Chen, 2014; Lin, 2019). However, under “political constitutionalism,” the CCP retains full control over constitutional interpretation, making civil rights conditional and symbolic (Shigong, 2010).

The Chinese Constitution provides many civil and political rights.  Articles 33-41 guarantee the freedom of speech, assembly, religion, and dignity of a person. For example, Article 35 guarantees the freedom of speech, the freedom of the press, the freedom of assembly, the freedom of association, the freedom of procession and the freedom of demonstration.

Yet these rights are subordinate to the Party’s interpretation. The constitution also establishes “four cardinal principles,” including upholding the leadership of the Communist Party and Marxist-Leninist ideology, effectively overriding civil rights when they conflict with Party doctrine (Chen, 2014).

The National People’s Congress (NPC), while constitutionally designated as China’s highest organ of state power, is in practice a non-independent legislative body subservient to the CCP (Chang, 1956). Unlike liberal democracies, China’s political system lacks true opposition parties all legally allowed parties operate under the United Front, supporting CCP leadership rather than contesting it (Shigong, 2010). The NPC does not engage in open legislative debate or exercise judicial review. Courts cannot invalidate unconstitutional laws, and constitutional interpretation resides solely within the Party’s political machinery, rather than an independent judiciary (Chen, 2014). This structure ensures that the legal system functions to implement Party directives, not to check or limit state authority, effectively distinguishing it from parliamentary systems with multiparty democracy and legal accountability.

One critical distinction is between “rule of law” and “rule by law.” In liberal democracies, the rule of law implies constraints on all, including the government. In China, however, the law is wielded as a tool of governance. The Party uses legal frameworks to institutionalise its power, criminalise dissent, and manage society, without subjecting itself to legal checks (Ginsburg & Moustafa, 2008).

Courts in China are explicitly barred from interpreting the constitution or adjudicating constitutional disputes. In the landmark Qi Yuling case (2001), the Supreme People's Court momentarily allowed courts to reference constitutional rights, but this was reversed in 2008, reaffirming the Party’s monopoly over constitutional meaning (Chen, 2014, p. 192).

An important distinction to make in analysing China's legal system is the distinction between "rule of law" and "rule by law." Since the post-Mao era, China has expanded its legal code and institutions, creating a legal system identifiable as "rule by law." However, this does not occupy the same space as the Western concept of "rule of law" (Ginsburg & Moustafa, 2008; Ng, 2019). "Rule of law" or "law and order" generally indicates that the law is sovereign over all parties, it applies equally to the government and citizens, operates to protect individual rights, and requires an independent judiciary. There lies an inbuilt restraint on state power.

On the other hand, "rule by law" indicates that law is a device by which the state governs the population. The Party uses the law as a  means to institutionalise policies, increase predictability in specific areas (particularly economic areas) and maintain discipline, but the Party itself is above the law or directs the law's application. This permits the state to enforce legality in order to repress dissent and sustain control,  illustrating how the law is illustrative of what the Party wants to do, rather than acting as a constraint gained from the authority of the rule of law (Ginsburg & Moustafa, 2008). While legislative reforms have improved judicial professionalism and procedural fairness in many kinds of cases, particularly those pertaining to commercial disputes, political cases (or those involving an alleged threat to state security or social stability) are firmly controlled by the Party. This control results in judicial outcomes that are not free,  legally sanctioned, challenges to state authority or legislation that restricts the  freedoms of the individual. 

Judges are appointed and supervised by Party committees. While commercial law has seen relative development necessary for foreign investment and economic growth, cases that challenge state interests or involve dissent are handled politically.

Laws like the National Security Law, Cybersecurity Law, and Counter-Terrorism Law use vague language to criminalise a wide range of behaviours. These laws justify state intervention against journalists, lawyers, and activists under charges like "picking quarrels and provoking trouble" or "inciting subversion" (Human Rights Watch, 2023).

Under Xi Jinping, China has expanded digital authoritarianism through the Social Credit System, facial recognition, and real-time surveillance (Qin, 2023). Though framed as tools for order, these technologies serve to monitor, suppress dissent, and enforce loyalty, supported by vague laws like the Cybersecurity and National Security Laws (Human Rights Watch, 2023). Critics face charges such as “picking quarrels” or “inciting subversion”, making law a means of Party control rather than a check on power (Gutmann, 2014; Ginsburg & Moustafa, 2008).

Surveillance is another pillar of control. The social credit system, facial recognition, and "Great Firewall" are not just technical tools; they are legally supported instruments of mass monitoring and behavioural regulation. Citizens are subject to constant digital oversight, enabling the state to suppress dissent before it escalates (Qin, 2023).

Party control penetrates to the grassroots. Neighbourhood committees, local Party branches, and informants are tasked with monitoring citizens’ behaviour and ideology. The household registration (hukou) system restricts mobility and access to services, especially disadvantaging rural populations. These institutions ensure that even at the lowest levels, individual actions are accountable to Party scrutiny (Qin, 2023).

Ethnic and religious minorities face especially severe constraints. In Xinjiang, hundreds of thousands of Uyghurs and other Muslim minorities have been detained in so-called “vocational training centres.” These are part of a broader strategy to assimilate minority cultures and suppress religious expression under the banner of counter-terrorism (Gutmann, 2014; Human Rights Watch, 2023). 

China has made use of advanced technology and surveillance in an increasingly autonomous body of law and governance to amplify state control over the population. The current integration of a national social credit system, facial recognition technology, and consequential internet monitoring ("the Great Firewall") earlier in China's development, is demonstrative of this growth in technology use to systemically monitor and collect copious amounts of data (on prominent individuals) concerning citizens behavior, communication, and movements. 

These technologies, while partially promoted as tools for social management and crime prevention, are used for the explicit purposes of identifying, monitoring and ultimately silencing dissenters, various activists, and any individual who may be cast as a threat to Party rule. With law as a framework to legitimatize the technology envisioned surveillance, the state avers that challenges may arise from national security or public order. The technocratic integration creates a climate of being fully observed and correlatively, state sanctioned resistance is limited on multiple fronts for each component of individual actions.

Independent civil society organizations, non-governmental organizations (NGOs), and legal advocacy groups face significant restrictions and suppression. The legal framework governing NGOs requires them to have a government sponsor and register with the authorities, placing them under direct state supervision. Organizations working on sensitive issues such as human rights, environmental protection, or labor rights face harassment, investigation, and closure.

The CCP has ensured that no independent judicial body can challenge its authority. Unlike Western democracies, where courts may nullify unconstitutional laws, China’s Constitution does not permit judicial review. The National People’s Congress (NPC) is nominally the highest authority, but in practice, it serves a rubber-stamp function under CCP leadership (Chang, 1956).

Instead, constitutional interpretation resides entirely within the Party’s political machinery. Legal institutions are deployed to implement Party policy, not to check it. This creates a system of “party-state constitutionalism,” where the constitution reflects and legitimizes Party leadership rather than constraining it (Shigong, 2010).

Citizens are denied genuine access to these freedoms through a combination of restrictive legislation, broad legal provisions like “endangering state security,” and the Party’s unchallengeable authority over courts and enforcement mechanisms. For instance, despite the constitutional promise of freedom of expression, individuals who voice criticism of the CCP are often prosecuted under vague charges like “inciting subversion of state power.” Religious freedom exists only within state-sanctioned frameworks, while unregistered religious activity can lead to surveillance, detention, or imprisonment. Ethnic minorities face targeted rights violations, with Uyghurs and Tibetans subjected to mass detentions and cultural suppression under laws aimed at “national unity” or “counter-terrorism” (Human Rights Watch, 2023; Gutmann, 2014). The absence of judicial independence further ensures that citizens have no legal recourse when their constitutional rights are violated, making these protections effectively symbolic rather than substantive (Chen, 2014; Shigong, 2010).

China actively exports its legal model through the Belt and Road Initiative and its growing influence in international organizations. It promotes the idea that economic development and social stability take precedence over civil and political liberties. This position is reinforced in UN human rights forums, where China frequently opposes universalist interpretations of human rights in favor of "national conditions" and cultural relativism (deLisle, 2020).

China’s growing international influence raises questions about the resilience of global human rights standards. Its legal model challenges the Western liberal democratic ideal by offering an alternative centred on Party-dominated legalism and state sovereignty. 

Despite an elaborate constitutional structure and formal rights provisions, China’s legal system remains fundamentally a tool of political control. Rights are conditional, justice is subordinate to Party directives, and the constitution is a legitimizing document rather than a binding social contract. While economic modernization has added legal complexity and predictability in commerce, political and civil rights remain heavily restricted under a system that values collective stability above individual autonomy. As China's global influence expands, the contrast between its legal-political model and liberal constitutionalism is likely to become a central tension in international law and governance. China's legal system significantly shapes both domestic socio-political dynamics and international legal norms, reflecting a model that values collective stability over individual liberties. This model continues to spark debate and requires ongoing assessment to align with evolving global human rights standards.

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(Ms Smrithi is an intern at C3S. The views expressed here is of the author and does not reflect the views of C3S.)