Is China a dual state?

Many China scholars think yes. I think no. Here's why.

I just posted a paper on the Social Science Research Network on the above topic. Here’s the abstract, followed by a brief explanation of why I think the question matters.

Ernst Fraenkel’s theory of the dual state, as set forth in his book The Dual State: A Contribution to the Theory of Dictatorship, has attracted the attention of scholars of Chinese law. This paper argues that, contrary to the views of many of these scholars, the model of the dual state—a Normative State coexisting with a Prerogative State—simply does not fit China unless that model is stretched so far as to be substantially different from the one actually proposed by Fraenkel. First, the Chinese state does not present institutionally the kind of duality observed in dual states. There are, for example, no special courts that can seize jurisdiction over political cases from ordinary courts. There is no need. Second, if there were duality, there is little basis for thinking that the counterpart to the Chinese Prerogative State is a Chinese Normative State of the kind imagined by Fraenkel. Unlike Germany, China has never had the latter kind of state. If there is a counterpart state, it may be a third type not imagined by Fraenkel’s model.

Why should anyone care about an abstract theory developed in the 1940s to understand Nazi Germany? To me it matters primarily because of its significance for how we understand the court system and other legal institutions. Proponents of the dual state model generally cite it in support of the idea that while political and important criminal trials are, well, political, the courts function pretty independently of outside influence in ordinary civil and commercial matters. I believe this fundamentally misunderstands how Chinese courts and their personnel operate. A system that is susceptible to political influence in one type of case cannot be insulated from it in other kinds of cases. The fact that it may be statistically less frequent in some kinds of cases is not relevant here; the question is whether the levers of influence exist and can be used.