The Language of Dominion and Dissent: Law in China and the U.S. with Professor Ya-Wen Lei
Professor Ya-Wen Lei is a scholar of law, society, and political economy whose work explores how law functions within authoritarian systems and how globalization and technology reshape governance. A professor of sociology at Harvard University and faculty affiliate at the Fairbank Center for Chinese Studies, Lei holds a J.S.D. and LL.M. from Yale Law School and a Ph.D. in sociology from the University of Michigan. Her research bridges legal theory and empirical sociology to examine the paradox of law in modern China: how legal reforms designed to strengthen state power can simultaneously create spaces for contestation and civic engagement. In her book, The Contentious Public Sphere: Law, Media, and Authoritarian Rule in China (2018), Lei shows how China’s legal and media liberalization in the 1990s and 2000s unintentionally fostered public debate and activism, revealing law’s capacity both to empower citizens and reinforce state authority. Further, in The Gilded Cage: Technology, Development, and State Capitalism in China (2023), she analyzes how globalization and digital technology have produced a form of “authoritarian modernization,” in which law, AI, and state capitalism intertwine to promote economic growth while deepening political control. Through this concept of the “gilded cage,” Lei captures China’s transformation into a technologically advanced yet politically constrained society, where prosperity and control coexist. Her current research continues to examine how law, automation, and global supply chains, particularly in industries like semiconductors, are reshaping power and inequality in the twenty-first century.
Harvard Undergraduate Law Review (HULR): You study how law operates not just in courts, but in daily life. What first drew you to explore how ordinary people experience and use the law, specifically in China?
Professor Ya-Wen Lei (YWL): My first book, which was based on my dissertation, looks at the public sphere in China. The public sphere is a sphere in which people express and form public opinions and collective discourse. And I became especially interested in what are called “public opinion incidents” in China, so those are events in which millions of citizens go to the internet to voice their views to influence or to challenge government decision making or other social and political issues. And what struck me was that many of these incidents revolve around law, and that was very surprising. In other words, people were framing all kinds of social problems in legal terms. And I was surprised by how legal language had become such a central and powerful way for ordinary Chinese citizens to talk about their issues and engage with the authorities.
HULR: And so, you’ve definitely spent time in both Chinese and American legal settings. How do you see law functioning differently in each and not just in institutions, but in how people think about justice and the state?
YWL: Yeah, I think in the U.S. there is a broad belief regardless of people’s political orientation that no one is above the law. In practice, we can see that people can and do sue the government when they think it has done something wrong. And also, questions of constitutionality really matter in the U.S. as shown by the many lawsuits brought by all kinds of actors against the U.S. government. That’s very, very special. In China, by contrast, I feel that most people understand that in reality the government stands above the law, and there is much less public discussion about whether the government’s actions, or particularly law or regulations, are unconstitutional because in China, there is no constitutional review institution. And even though many lawyers tried to have that kind of institution, they were not successful. Those are some of the major differences I’ve observed between the two countries.
HULR: In many of your writings, law appears as both a way to strengthen state authority and a tool people can use to push back. Why do you think law holds that kind of dual power, especially in an authoritarian setting?
YWL: That’s a very important question. You know, it’s very difficult to argue with authoritarian leaders, so you have to talk to them using the kind of language they endorse or approve of. And in China the law is a kind of discourse officially authorized and endorsed by the government, at least on paper. People know the limits of law and they can learn how to use this kind of state-sanctioned language to engage, negotiate with, and sometimes challenge the government. In an authoritarian setting, it’s very risky to use forms of expression not approved by the government, and that’s why the law has become so important. It provides a legitimate language for citizens to make claims and to express their dissent.
HULR: Because they have this specific language between the government and the people, how can legal scholars and activists outside China engage meaningfully with those inside without imposing Western frameworks or jeopardizing any sort of safety?
YWL: Yeah, so I think scholars outside of China should learn more about Chinese legal institutions. I think there are two issues. First, they should learn about legal institutions in China to come up with their engagements or criticisms. It’s very dangerous just to see China from only, for example, a U.S. perspective. But by doing this, I also think that people should be aware that there are also problems within Chinese legal institutions. When using the Chinese language or Chinese legal language to engage with or talk about issues with people in China, they should also keep in mind that they shouldn’t be uncritical about the legal institutions in China and should clearly see its limitations. On the one hand, they should be familiar with the system, but on the other hand they should also see its limitations.
HULR: So, in your research have you seen how China’s legal system evolved over the past decade? Do you see it becoming more centralized, or just differently institutionalized?
YWL: I will think about it from a longer time frame. There are three important changes over time, say like four decades. So first is that their legal profession has become much more professionalized and established. And then the legal institutions have also grown increasingly sophisticated. Ordinary citizens have also developed high degrees of legal consciousness. There was a period in which legal professionals and more liberal leaning intellectuals in China had a lot of hope about using the legal institutions to promote political liberalization and even democratization in China. Over time, I think it’s clear that the legal profession in China has become so powerful, and many of them really became very influential in the public sphere. That makes the Chinese government very anxious and concerned about the power of these lawyers. As I’ve mentioned in class, I’ve talked about a lot of places and countries, like South Korea and Taiwan, where the legal profession plays a really important role in the process of democratization, and they’re the key actors. In the past decade, it has become clear that the Chinese government has tightened its control over the legal system, especially over lawyers in trying to attack lawyers and tighten the control to ensure that they don’t engage in political activism.
HULR: You mentioned how citizens used law to voice grievances in China. As censorship and surveillance grow, do you see similar debates about rights and justice emerging in democratic societies like the U.S.?
YWL: I’m not a political scientist, but there’s a lot of literature showing the trend of the so-called democratic backsliding. If you look at the measurements of the quality of democracy in many democratic countries or “hybrid-democratic” countries, we can see a trend in which the degree of democracy has declined over time. Unfortunately, I think the U.S. belongs to one of these examples. This can be seen by the attack of, for example, the legal profession (like Big Law firms) and the media systems, as well as higher education and universities. In democratic systems, theoretically these are all very important institutions that should have their own autonomy. But I think in the U.S. we can see that a lot of institutions are under threat.
HULR: Given rising geopolitical divides, what do you think comparative law, especially the study of China, can teach U.S. students about their own legal institutions and assumptions?
YWL: Many people in the U.S. would have some kind of feeling of superiority—they feel that legal or political institutions in the U.S. are superior to their counterparts in China because the U.S. is a democratic country. But I think now this kind of assumption about the democratic nature of the political system and institutions in the U.S. couldn’t really be assumed or guaranteed. We see that a lot of institutions in the U.S. have been under attack and I think by learning about China and also other countries, we can see how the government and authorities can really attack institutions. I think that in the past, a lot of people in the U.S. just don’t think that there’s any relationship between political or legal institutions for un-authoritarian countries. But I think this kind of similarity should be taken seriously at this moment.
HULR: To pivot slightly, can you talk about your current research interests and the motivations behind them?
YWL: My current research project is about the U.S. attempt of reindustrialization. This is not really related to law, but in some aspects it is related to international law as well. The U.S. government has been solving a lot of economic issues and social issues, for example like unemployment and deindustrialization. Those things are the consequences of the previous stage of globalization. The previous stage of globalization actually was made possible by a lot of international, institutional arrangements. For example, a lot of multilateral trade agreements, the most important example is the WTO (World Trade Organization) and the legal framework created under the WTO. People understand the consequences of decades of deindustrialization, the manufacturing went to other countries, especially East Asian countries, and now under the previous institutional arrangements at the global level, such as WTO. Now the U.S. government, under both Biden and Trump administrations, wants to bring some industries, especially advantaged manufacturing, back to the U.S. You can see that in this kind of process and effort to make this possible, at least under the Trump administration, it’s not through the previous international arrangement, like WTO agreements and multilateral agreements. Instead, the U.S. increasingly turns to bilateral negotiations, export control, and tariffs to manage this kind of economic issue. You can see that I’m interested in the process of bringing back advanced manufacturing to the U.S., especially the semiconductor sector. I’m interested in to what extent the U.S. strategy actually works and the difficulties that have occurred in the process. One dimension that’s related to law is that at this current stage of globalization, governments rely less on international law, but instead try to exercise their power through tariffs and other industrial policy tools that they can impose unilaterally on other countries or on business actors.
HULR: Given your background in both U.S. and Chinese legal systems, what might Western scholars or policymakers misunderstand about how law operates within China’s global strategy?
YWL: I think one common misconception is that the Chinese government doesn’t care about law or that the legal system is really underdeveloped. I don’t think that’s a fair understanding of the Chinese system. Instead, the Chinese government does things through law. For example, if they want to do or say something, they’ll do that in a legal form. They will actually revise or amend their legal institution according to what they want. They do things in a legal form, but usually a lot of Western scholars think they don’t do things according to law, but they do it according to their law or legal order.
HULR: Expanding on that, do you think if U.S. policy makers understood this a bit more—do you think this would change the way they viewed the legal relations between the two and how that impacts their policies?
YWL: I’m not sure. I think that’s possible. My own background focuses more on domestic law in China, less related to the U.S. But I think at the international level, it’s very important for the U.S. (policy makers and government officials) to learn how the Chinese government has been engaging with international law systems. So when the U.S. withdrew, the Chinese government became more powerful in terms of shaping the international legal system. So I think it’s important to learn the Chinese government’s strategy in the international legal system.
HULR: To transition again, we are currently living in a world where AI is on the rise and there’s a digitalization movement. You’ve written about digitalization of governance in China. How is AI changing the relationship between law and state power? Do you see it having a deepening effect on central control, or creating new kinds of bureaucratic autonomy?
YWL: Increasingly across countries, there are more and more decisions within the government made with the assistance of AI. That’s a trend, for example, in the U.S. judicial system and also public social service system—there are some decision makers who increasingly rely on AI to make decisions. And in China, it’s the same. But there is a danger because AI is a black box. People don’t really know how decisions are made and according to what criteria, and also the relationship between those criteria or algorithms and the law. It’s very possible that those kinds of algorithms actually violate certain types of law. But when the government actually begins to use more AI, people have to be very careful about the consistency between the code embedded in the system and the legal code, to see whether the decision making assisted by AI actually violates the law.
HULR: As artificial intelligence becomes more integrated into governance and legal decision-making, what kinds of accountability mechanisms are, or should be, developed in your opinion?
YWL: There should be a review or audit of AI systems. Ordinary people, including legal professionals, don’t really have expertise in AI. For example, there could be some kind of committee, including legal professionals and technical experts, working together to look at how things actually work and the consistency between those AI and legal codes.
HULR: Yeah, especially with using algorithms that can inadvertently discriminate against people. I recently wrote a paper involving a case where someone was discriminated against based on their age and the hiring company used an AI algorithm to do the hiring. That’s a case going on right now.
YWL: Right, because those AI systems include a lot of parameters—very skeptical parameters and criteria. Also, a lot of facial recognition technology performs better when they do facial recognition with people with lighter skin and males. So, you can see the consequences of having that kind of system on people with darker skin and females.
HULR: For the last question, to end on a more positive note, as someone who bridges law and sociology, what gives you hope about law’s ability, in any regional context, to protect justice and human dignity in an age of rapid technological and political change?
YWL: I am more optimistic. I feel that people who study law or who choose to study law generally share a basic belief that law should protect rights. A lot of societal issues and differences can be resolved through the making of law. At least for legal professionals, I still feel that people who choose to do this would have a higher likelihood of understanding that law aims to protect human dignity and rights.
HULR: Thank you so much!