Abstract
This article uses Ernst Fraenkel’s dual-state framework as an analytical tool to study those conflicting imperatives and constitutional tensions with a focus on the power to detain. This article makes the argument that China has emerged as a dual state with a normal state that functions increasingly with a rule-based government in inter-personal matters and a prerogative state that solidifies control in areas that are regarded as political sensitive. Overall, while the equilibrium between the normative and prerogative states has been evolving in China, it has remained stable. The Party has been able to build a relatively self-defined and self-referencing legal system to provide the certainty and order that the Chinese political economy demands while maintaining a zone of exception, expansive and continuing to evolve, for the prerogative state to safeguard authoritarian rule.
Acknowledgments
The author thanks Ngoc Son Bui, Cora Chan, Michael Palmer, Samuli Seppanen, Peter Wang, and an anonymous reviewer for their insightful comments on different versions of this article.
© 2022 Walter de Gruyter GmbH, Berlin/Boston
