Anchoring proportionality in China

Abstract Proportionality, the lingua franca of rights adjudication across the globe, is not a lost cause in China. It has attained a modest jurisprudential, epistemic, and discursive presence, with proportionality-resembling formulations scattered across statutes and judicial decisions. An opportunity structure has emerged in favor of proportionality’s expansion into the domain of personality rights adjudication under the Civil Code of 2021—a “surrogate” of constitutional rights review. This opportunity structure is enabled by a semi-autonomous private law sphere lodged within China’s dual state, the structure of the Civil Code, which delegates to judges the authority to adopt a stable criterion to assess the scope of personality right provisions and their limits, and the proactive agency of prominent publicists and judges who have advocated for, and experimented with, proportionality in real cases. Despite such impetus, anchoring proportionality remains constrained by two “micro-level” obstacles in everyday judicial praxis, which are the sheer size of the judiciary and truncated judgment-writing practice. Ultimately, the fate of proportionality in China hinges on the extent to which the party-state tolerates the evolution of its private law in a rights-protective direction, which in turn bespeaks the future of the Chinese legal system.