A new paper by Shucheng Wang
Can authoritarian regimes use the ‘law’ – as construed from a liberal-rational legal perspective – to solidify and legitimize their rule? Scholarship increasingly pays attention to the role of law in authoritarian regimes. As far as Chinese law is concerned, Mary Gallagher, Hualing Fu & Michael Dowdle, and Taisu Zhang & Tom Ginsburg have investigated the role of law for China’s Party-state, among others.
Against the backdrop of the rise of illiberal democracy, this short article titled “Authoritarian Legality and Legal Instrumentalism in China” engages with this scholarship by unpacking the dynamics of authoritarian legality. As the term indicates, authoritarian legality refers to legal norms advanced by authoritarian regimes, where an active adherence to law may nonetheless thrive without political or democratic reform. The article describes two pure types of authoritarian politics namely, normal politics, and exceptional politics. In normal politics, the law is relatively stable and predictable, particularly on issues relating to apolitical matters. In exceptional politics, however, the law may be adjusted, redefined or even suspended in order to accord with specific socio-political goals.
Using China as a case study, the article takes note of the effort that has been made in establishing a comprehensive system of positive law and in institutionalizing authoritarian legality through a politically controllable congress and court system. Yet, these efforts remain counterintuitive – since legality requires institutionalisation, predictability, and certainty – all of which are seemingly absent in an authoritarian regime. This is not to say that the ‘law’ still does not serve as a crucial instrument for distinguishing ‘lawful’ from ‘unlawful’ actions, but rather, that law is inextricable from politics. The inner logic of authoritarian legality is therefore revealed in the existence of political penetration – either explicit or implicit – into formal laws and informal practices. In essence, while authoritarian legality indicates the legalistic aspirations of illiberal regimes, the legality of the laws is often premised on illiberal fundamentals.
The article identifies three pure types of instantiations of legal instrumentalism, based on the variance of political ideologies: liberal, apolitical, and illiberal. The theory of legal instrumentalism posits that laws should not be seen as a manifestation of universally fixed norms, but rather as a tool for promoting the interests of society and the State. This theory has largely been delinked from the religious and historical roots of western jurisprudence. Legal instrumentalism, therefore, has become far more reflective of a non-Western context and may have found a widespread resonance beyond the differences between liberal and illiberal political ideologies.
The rest of the article argues that legal instrumentalism as instantiated in China’s illiberal context provides a stronger explanatory framework for the law’s function as a crucial instrument in developing the enterprise of legality grounded in illiberal principles than Marxist or Confucian legal theories. Overall, unlike the liberal instantiation of instrumentalism posited within liberal ideologies, the illiberal instantiation of instrumentalism in China shows a dimension of law as an instrument for facilitating China’s development and developing the enterprise of legality grounded on illiberal principles.
Shucheng Wang’s paper Authoritarian Legality and Legal Instrumentalism in China was published in the The Chinese Journal of Comparative Law, a free draft is available here).
Shucheng Wang is an Associate Professor at the School of Law, City University of Hong Kong and an affiliated researcher of the Law and Religion in the Asia Pacific Region program at The University of Queensland, Australia. He was a Fulbright Scholar (Emory University) and a Clarendon Scholar (Oxford University). He has authored four books, including most recently Law as an Instrument: Sources of Chinese Law for Authoritarian Legality (Cambridge University Press 2022 forthcoming), as well as over fifty articles.