Guerrilla Lawyering and Environmental Litigation in China

• In Event: Judicial Politics of China

Abstract

This paper uses environmental litigation in China as a window to examine the constraints and opportunities for legal mobilization under authoritarianism. It finds that the gap between law-in-books and law-in-action has contributed to a resistant legal consciousness, i.e., viewing state law as inconsistent, oppressive, and illegitimate, among Chinese environmental activists. However, the “disenchantment” has not led the activists to turn away or against the law, as the existing legal consciousness literature has described. Instead, it gave rise to a model of guerrilla lawyering, which is driven by the assessment of risks of state suppression and co-optation. The cynical perception of law inspired a series of guerrilla tactics, such as circumventing legal formality, playing for pragmatic gains, and appealing to emotions and higher law in the litigation process. In this sense, the use of litigation in Chinese environmental movement has been less of an offensive strategy than a defensive one to preserve the presence and ideological independence of the activist community. This research enriches our understanding of the interaction between legal consciousness and legal mobilization in non-democratic regimes.

Author

• Marina Ying Xia, University of Hong Kong