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China’s Dual State under Xi Jinping Pils, Eva


This paper draws on the notion of the dual state, developed in the 1930s by Ernst Fraenkel, to discuss China’s current legal-political system. The Party-State’s institutional and legislative reforms since the beginning of the Reform and Opening era reflect certain principles of order, fairness and legality connected to the idea of a normative state. Yet, in recent years, there has been a marked expansion of a ‘prerogative-state’ system for the use of terror and violence in order to give effect to the will of the political leadership. Drawing on Fraenkel’s argument that the dual state is incapable of meeting the requirements of the law of reason (Vernunftrecht), I argue that the current Chinese Party-State ‘needs’ to reject liberal legal and political principles the more strenuously, the more obviously it becomes implicated in their violation, and consider the domestic and transnational implications of the prerogative state’s growth in China.

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