Rights-Protection Lawyers in China: A Behavioral and Rational Choice Analysis of Lawyers in an Authoritarian State

One peculiar feature of China’s legal system is the existence of “weiquan” or rights-protection lawyers. This small, informal movement comprised of lawyers, academics, and activists emerged in the early twenty- first century alongside legal reforms that sought to increase the rule of law in China. In general, these lawyers work on civil and political rights cases and often make rights-based claims against the government. In the summer of 2015, the Chinese Communist Party (“CCP”) detained over 200 of these rights-protection lawyers, a human rights violation that many observers viewed as a retreat from prior commitments to the development of the rule of law. This Note uses two theoretical frameworks—rational choice theory and behavioral law & economics—in an attempt to explain why the CCP, an authoritarian regime, would allow this movement to develop in the first instance and why, after more than a decade, the CCP reversed course.

The human rights literature has generally assumed a rational choice framework when analyzing a State’s failure to comply with human rights norms. The major principle of rational choice theory is that an actor will pursue activities that she expects will maximize her utility. Some recent scholarship has used social science research, often referred to as behavioral research, to call this principle into question in the context of human rights. Even though much of the current literature treats these two frameworks as competitors, this Note explores how both rational choice theory and behavioral research offer insights into distinct aspects of a State’s decision to deviate from human rights norms. After outlining these two frameworks in Part I, Part II provides background on the development of China’s legal system and the CCP’s decision to detain China’s rights-protection lawyers. Part III utilizes both rational choice and behavioral research to explain why the CCP tolerated the emergence of rights- protection lawyers and why it seemingly reverted to the expected authoritarian position by cracking down on these lawyers. This Note then concludes with a discussion of the distinct but complementary strategies that rational choice and behavioral research suggest could improve compliance with human rights norms.

55 Colum. J. Transnat'l L. 757