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Tag: Authoritarian Legality

A Funny Thing Happened on the Way to Democracy: Who Eliminated All Other Political Systems?

21. June 2024
A new paper by Teemu Ruskola
From a motion picture, 1920, USA. Library of Congress

Life is complicated.  Theory is simple:  democracy is good and authoritarianism is bad.  What is more, democracy in a robust sense requires a foundation based on the rule of law.  Authoritarian regimes too may have law;  however, instead of being constrained by it they rely on it only for instrumental purposes. 

These statements seem commonsensical and just like everyone else, I too agree with them.  There is a problem, however.  It is the strictly binary way in which they are constructed.  To stay that democracy is preferable to authoritarianism is not an especially illuminating statement.  First of all, neither term is self-defining.  To start with, whenever we are talking about modern centralized states, we are always dealing with some kind of representative democracy.  However, every form representative democracy entails necessarily some kind of distortion, with some people winning and other people losing.  One Senator cannot literally “represent” the views of 20 million people, even if we put aside the problem of legalized corruption known as campaign finance.  There is no pure democracy as such—except maybe a direct democracy on the model of the Athenian polis, and even there the people who were the loudest, tallest, and the sweetest talkers—let us call them demagogues—had a disproportionate influence (not to mention the wholesale exclusion of women and slaves).

Second, while democracy is, by definition, superior to authoritarianism, that does not mean that there could not be other worthwhile ways of organizing politics.  Democracy, for all its potential, has serious limitations as well.  At least in its electoral form, it is not well-equipped to address questions of intergenerational justice (the unborn do not vote), nor to attend to the relationship between humans and their environment (trees have no standing, as Christopher Stone famously said)—the most fundamental relationship of all, as we find ourselves careening toward environmental collapse.

Put differently, democracy is ultimately a historical category, not the transcendental telos of all politics, and it can take dramatically different forms.  Accordingly, it can work relatively well or not, depending on historical, social, and political circumstances.  In its contemporary manifestations, it is very difficult to separate democracy from the histories of nationalism and capitalism, most notably.  When we talk about democracy today, we are usually referring to a political union between some kind of liberal democracy and some form of capitalism—a system where elections function more or less as a giant calculator whose main task is to aggregate individual preferences.

Whatever the virtues and the limits of this brand of democracy may be, what troubles is me that especially after the end of the Cold War this particular understanding of democracy been universalized.  It has become essentially a religion, and a rather jealous one: a monotheistic faith that does not recognize any valid alternative.  It has become a missionary project that aims at nothing less than the standardization of political forms and political subjectivities on a global scale.

In a recent article, I use Shucheng Wang’s excellent book Law as an Instrument: Sources of Chinese Law for Authoritarian Legality as a point of departure for reconsidering the conventional opposition between liberal and authoritarian forms of legality.  I argue that this opposition is in turn embedded in an even more elemental distinction between different state forms. Turning to Montesquieu’s The Spirit of the Laws, I first investigate the historical and geopolitical processes by which modern political theory reduced the political universe into three species of states (republics, monarchies, and despotisms) and then merely two (democratic and authoritarian states). Next, I turn to the contemporary genealogy of the concept of rule of law, which arose first as a critique of the rise of the administrative state in the West and then became a means to delegitimize socialist conceptions of legality.  Finally, I conclude by focusing on the People’s Republic of China to evaluate the utility of assessing its legal order in terms of authoritarian legality as well as in terms of democracy more generally.

We should most certainly continue to improve existing democratic institutions, but we should not allow ourselves to be completely dazzled by democracy, whether as a political idea or a political practice.  It must not foreclose our ability to imagine other kinds of politics and other kinds of institutions.  A constitutional democracy is one way of coordinating life among humans, but it cannot be the only, or final, form of politics, especially in an age where our most urgent and intractable problems are global.  Insofar as we are looking for non-liberal forms of justice and politics, maybe—just maybe—the historical experience of China can help us imagine alternatives, especially as the limits of electoral democracy are being tested today all around the world.

Teemu Ruskola is Professor of Law & Professor of East Asian Languages and Civilisations at the University Pennsylvania. He is an interdisciplinary legal scholar whose work addresses questions of legal history and theory from multiple perspectives, comparative as well as international, frequently with China as a vantage point. Ruskola is the author of Legal Orientalism: China, the United States, and Modern Law (Harvard University Press, 2013), co-author of Schlesinger’s Comparative Law (Foundation Press, 2009), and author of numerous contributions to law reviews, from the American Journal of Comparative Law to the Yale Law Journal. He is also co-editor (with David L. Eng and Shuang Shen) of a special double issue of the journal Social Text on “China and the Human.”

General Authoritarian Legality, Democracy, Legal Culture, Legal History

Authoritarian Legal (Ir)rationality: The Saga of ‘Picking Quarrels’ in China

11. March 2024
A new paper by Jiajun Luo
In response to an apartment fire in Urumqi which killed eleven residents in November 2022, Shanghai residents took to the city’s Urumqi Road, protesting peacefully against China’s zero-covid policy. While the protests resulted in the official end of nearly all Covid-19 related restrictions, several participants were detained and sentenced for picking quarrels and provoking trouble (Criminal Code Art. 293). Photo by Cinea467

It is widely reported that the utilization of the crime picking quarrels (寻衅滋事) by Chinese authorities has resulted in the imprisonment of thousands for their online expressions, ranging from complaints about traffic police to criticisms of the ruling Chinese Communist Party (CCP) on social media platforms. Moreover, this catchall category extends beyond speech-related offenses, serving as a tool for political suppression since 2013 and targeting various civil groups in China, including feminists and human rights lawyers.

However, picking quarrels is not confined to politically sensitive cases. Authorities also employ it to enforce state-approved moral standards, leading to the criminalization of individuals for morally contentious actions or speech on social media. For instance, a Douyin (Chinese TikTok) creator received a prison sentence for pretending to engage in a fictional fight against imaginary opponents, deemed as provoking social disorder by local police ((2019) 湘1124刑初119号).

Picking quarrels is legally defined in Article 293 of China’s Criminal Code, encompassing the following actions:

(1) Arbitrarily attacking people with particularly grave circumstances;

(2) Chasing, intercepting, or berating others with particularly grave circumstances;

(3) Forcibly taking, destroying, or occupying public or private property with serious circumstances;

(4) Making a commotion and causing serious disorder in a public place.

Penalties range from supervised release to five years of imprisonment, with up to ten years for those repeatedly inciting others to disrupt social order.

However, the broad and vague application of this offense makes it difficult to establish a direct link between Article 293 and many specific picking quarrels cases. Sub-category 4, “making a commotion,” acts as a catchall within a catchall, allowing authorities to prosecute objectionable acts or speech under the pretext of causing disorder in public venues. Importantly, despite whether a case is politically motivated or not, picking quarrels is applied arbitrarily in both situations. This raises an intriguing question: to what extent is the boundary between political and non-political spheres significant within an authoritarian legal system like China’s?

Today, scholarly debates on “authoritarian legality” in China offer varying views. Optimists view the centralization of power through legalistic means positively, while critics argue that the Chinese legal system, as a whole, deviates from the rule of law, especially under Xi Jinping’s leadership. The theory of legal duality suggests the coexistence of a genuine legal order and a political agenda-driven state. However, many of these arguments assume China’s authoritarian legality is inherently tied to how strong the political nature of the issue is—whether it’s deemed “political” or not.

Despite ongoing debates, the significance of law in governing authoritarian systems is widely acknowledged—and it becomes crucial to grasp the essence and characteristics of authoritarian law. This article introduces the concept of legal rationality to illuminate authoritarian legality. It proposes that, whether a system is democratic or authoritarian, legal rationality denotes the intrinsic value of law that is publicly accessible, transparent, and consistent, serving to restrict the arbitrary discretion of individuals in positions of authority. Thus, if there is a decline in legal rationality within an authoritarian system, then it probably does not solely result in more political prosecutions but could also lead to heightened arbitrariness in non-political domains as well.

In China, post-Mao legal reform (since 1978) aimed to establish legal rationality for prosperity, stability, and regime legitimacy, and of course—also with the hope of helping to prevent political catastrophes like Mao Zedong’s Cultural Revolution. However, under Xi Jinping’s leadership, there has been a decline of legal rationality in both political and non-political spheres. This article offers two explanations for this decline. First, in an authoritarian system, officials tend to exercise arbitrary power as a convenient means to not only exert political control but also address governance issues (they often benefit personally from such actions as well). Second, China’s partial legal rationality has been mainly maintained through self-restraint by the CCP in the post-Mao era. As this self-restraint weakens, both political and non-political spheres are increasingly vulnerable to prerogative power erosion.

The example of picking quarrels vividly illustrates the decline of legal rationality in Xi’s China, leading to arbitrary actions within the political realm and routine criminal justice system. Throughout Mao Zedong’s reign from 1949 to 1978, hooliganism functioned as a versatile crime, diverging from legal rationality by being widely applied across both political and non-political contexts. China’s 1997 Criminal Code has replaced hooliganism with picking quarrels. “Subsequent efforts in the 2000s and early 2010s aimed at rationalizing picking quarrels through clarification of legal terms, moral detachment, and to a limited extent, depoliticization.

However, as mentioned earlier, Xi Jinping’s tenure saw a regression, reversing the trend of rationalization observed in earlier reforms. In both political cases and cases with less political nature, this excessive application of picking quarrels comes at the cost of the rationalization of China’s criminal legal system that had been developed during the reform era. This erosion extends beyond hyper political cases, affecting everyday legal and governance systems, blurring the line between political and non-political realms.

The decline of legal rationality across political spheres and ordinary justice in the case of China highlights the necessity of reevaluating our understanding of authoritarian systems—it might be the (ir)rationality of the law, rather than its political nature, that defines authoritarian legality.

The paper “Authoritarian Legal (Ir)rationality: The Saga of ‘Picking Quarrels’ in China” is forthcoming in Asian-Pacific Law & Policy, Journal Vol. 25, No. 3, 2024 (free draft available at SSRN).

Luo Jiajun is a Research Scholar in the Equality Rights Program at the Faculty of Law, University of Hong Kong. Luo recently received a Dissertation Year Fellowship from HKU for his outstanding (5%) PhD thesis titled “Chinese Courts: Unequal Justice”. From 2021 to 2023, he was a China Law Fellow at Georgetown University. He can be emailed at jiajunlok[at]gmail.com.

General Authoritarian Legality, Criminal Law, Legal Rationality, Picking Quarrels

Authoritarian Legality and Legal Instrumentalism in China

8. May 2022
A new paper by Shucheng Wang
Sailing Junk in Sai Wan Ho, Hong Kong

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.

General Authoritarian Legality, Legal Instrumentalism

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