The relationship between legal systems and legal responses: the case of cyberterrorism in China and England & Wales

Abstract

In response to the perceived threat of “cyberterrorism”, authorities in China and England & Wales(E&W) have not defined specific anti-cyberterrorism laws. Rather, they have relied on existing anti-terrorism legislation to combat this problem, leaving the legal definition of cyberterrorism ill-defined and open to significant interpretation. In turn, this grants substantial discretion to enforcement authorities which is a significant indicator of convergence in legal responses to cross-jurisdictional threats, even in legal systems as different as those in China and in E&W. Such convergence provokes the key question of whether a country’s legal system necessarily shapes its legal response to social problems, particularly those arising from the ‘hyper-connection’ of human relations through the World Wide Web. To answer this question, this thesis compares the legal responses to cyberterrorism in China and E&W. The radical differences in the constitution of these two legal systems provide a ‘critical test’ of the necessary or contingent relationship between legal systems and legal responses in an era characterized by the increasing global problems facilitated by the World Wide Web. To this end, the thesis adopts doctrinal, comparative and socio-legal methodologies to critically and comprehensively examine legal responses to cyberterrorism in these two systems. It is unsurprising there are many fundamental differences in legal responses to cyberterrorism, specifically the different judicial review process, different legislative scrutiny and independent review systems and different safeguards for the rights of terrorist suspects, which can be attributed to the differences in legal and political systems in the two jurisdictions. However, on closer analysis, there are a number of key similarities in their approaches, notably over-criminalization, unpredictability, lack of counterbalance, violation of proportionality and an ill-defined and arbitrary expansion of executive powers. This suggests there is no simple causal relationship between the constitution of these two legal systems and legal responses to cyberterrorism in these two jurisdictions. Rather, the revelation of this convergence in legal responses to cyberterrorism provokes key questions for further research on the socio-legal dynamics behind convergence as well as divergence in legal responses to global threats. In these terms, the thesis concludes by advancing a number of conjectures about the contingent, rather than necessary, relationship between legal systems and legal responses and the related significance of the extra-legal effects of processes of globalization, including the ‘hyperconnectivity’ of communications through Web 2.0, and their challenges to national jurisprudence