Authoritarian legality with Chinese characteristics

ABSTRACT

In recent years, the concept of authoritarianism has risen to prominence in the community of legal scholars studying non-democratic regimes. China’s legality is also described as authoritarian. However, what does it mean to label China as having a system of authoritarian law? The concept of authoritarianism, and by extension, authoritarian legality, is yet underexamined. This article discusses how China, as a single-party state, differs from other authoritarian regimes in developing its own brand of authoritarian legality that I describe as legal gradationalism. China's authoritarian legality is characterized by a rejection of judicial independence and the mixing of law and quasi-law instruments. Drawing from Shucheng Wang's Law as an Instrument, I propose that a gradationalist approach to Chinese legality allows us to more fully understand the behaviour of Chinese courts and the intriguing dynamics between the Supreme People's Court (SPC) and the local courts.

KEYWORDS:

• Authoritarian legality
• courts
• China
• legal gradationalism
• legal dualism

Acknowledgements

The author expresses gratitude to Shucheng Wang and the two anonymous reviewers for their valuable comments and suggestions. Additionally, thanks are extended to the Asia Pacific Law Review editorial office for their excellent support throughout the preparation of this symposium.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Tom Ginsburg and Tamir Moustafa, Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge University Press, 2008); Mary Gallagher, Authoritarian Legality in China (Cambridge University Press, 2017); Eva Pils, Human Rights in China: A Social Practice in the Shadow of Authoritarianism (Polity Press, 2017); Ya-Wen Lei, The Contentious Public Sphere: Law, Media, and Authoritarian Rule in China (Princeton University Press, 2018); Taisu Zhang and Tom Ginsburg, ‘China’s Turn Toward Law’ (2019) 59 Virginia Journal of International Law 306; Jacque deLisle ‘Authoritarian Legality in East Asia: What, Why, and Whither?’ in Weitseng Chen and Hualing Fu (eds), Authoritarian Legality in Asia (Cambridge University Press, 2020) 17.

2 Erica Frantz, Authoritarianism (Oxford University Press, 2018).

3 Shucheng Wang, Law as an Instrument: Sources of Chinese Law for Authoritarian Legality (Cambridge University Press, 2022) 60, 103.

4 Juan Linz, Totalitarian and Authoritarian Regimes (Lynne Rienner Publishers, 2000).

5 Graeme Gill, Bridling Dictators (Oxford University Press, 2021).

6 Frantz (n 2) 6. See also Shucheng Wang, ‘Varieties of Authoritarian Legality’ in this issue.

7 Barbara Geddes, ‘What Do We Know About Democratization After Twenty Years?’ (1999) 2 Annual Review of Political Science 115. Erica Frantz adopts the same classification, (n 2) 64.

8 Dan Slater, ‘Iron Cage in an Iron Fist: Authoritarian Institutions and the Personalization of Power in Malaysia’ (2003) 36 Comparative Politics 81.

9 Brian Lai and Dan Slater, ‘Institutions of the Offensive: Domestic Sources of Dispute Initiation in Authoritarian Regimes, 1950–1992’ (2006) 50 American Journal of Political Science 113.

10 There are three types of rules according to Gill – operational rules, relational rules, and constitutional rules. Gill (n 5) 26.

11 Xiaobing Li, China’s New Navy: The Evolution of PLAN from the People’s Revolution to a 21st Century Cold War (Naval Institute Press, 2023); Charles Parton, ‘China’s Military Set-Up is Designed to Foil any Would-Be Prigozhin’ Financial Times (London, 29 June 2023) <www.ft.com> accessed 17 July 2023.

12 James Char, ‘Chinese Civil-Military Relations: Xi Jinping’s Anti-Corruption Campaign and the People’s Liberation Army’ in Richard A Bitzinger and James Char (eds), Reshaping the Chinese Military: The PLA’s Roles and Missions in the Xi Jinping Era (Routledge, 2018) 9; Daniel Mattingly, ‘How the Party Commands the Gun: The Foreign-Domestic Threat Dilemma in China’ (2022) 68 American Journal of Political Science 227.

13 Lai and Slater (n 9) 116.

14 William C Havard, ‘From Bossism to Cosmopolitanism: Changes in the Relationship of Urban Leadership to State Politics’ (1964) 353 The Annals of the American Academy of Political and Social Science 84.

15 John Sidel, Capital, Coercion, and Crime: Bossism in the Philippines (Stanford University Press, 1999).

16 Ling Li, ‘The Chinese Communist Party and People’s Courts: Judicial Dependence in China’ (2006) 64 The American Journal of Comparative Law 37.

17 Of course, it would be a mistake to equate bolstering the Chinese courts with promoting judicial independence. Both Xi and former SPC President Zhou Qiang have consistently rejected the notion of judicial independence as a Western ideology. But the party state relies on the judicial system to implement its policies.

18 Lisa Hilbink, Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile (Cambridge University Press, 2007).

19 Mark Tushnet identifies the examples of Hungary and Venezuela. See Mark Tushnet, ‘Authoritarian Constitutionalism’ (2015) 100 Cornell Law Review 431.

20 Gill (n 5).

21 Mary Gallagher, for example, refers to China as an atypical case of authoritarianism. See Gallagher (n 1).

22 Thomas E Kellogg, ‘Constitutionalism with Chinese Characteristics? Constitutional Development and Civil Litigation in China’ (2009) 7 International Journal of Constitutional Law 215.

23 Tushnet (n 19) 397.

24 David Landau, ‘Abusive Constitutionalism’ (2013) 47 UC Davis Law Review 189.

25 Tushnet (n 19) 448.

26 Li (n 16) 42.

27 See Shen Kui, ‘Is it the Beginning of the Era of the Rule of the Constitution? Reinterpreting China’s “First Constitutional Case”’ (2003) 12 Washington International Law Journal 199; Qianfan Zhang, ‘A Constitution Without Constitutionalism? The Path of Constitutional Development in China’ (2010) 8 International Journal of Constitutional Law 950.

28 Wang (n 3) 21.

29 In the past few years, there has been an uptick of activities by the Legislative Affairs Commission (LAC) under the NPCSC to examine if a piece of law is in compliance with the constitution. It remains the case that judicial constitutionalism is absent in China.

30 Juan Wang and Sida Liu, ‘Ordering Power Under the Party: A Relational Approach to Law and Politics in China’ (2019) 6 Asian Journal of Law and Society 1.

31 Donald Clarke, ‘Order and Law in China’ (2022) University of Illinois Law Review 541.

32 Xin He, ‘Pressures on Chinese Judges under Xi’ (2021) 85 The China Journal 49.

33 Perry Keller, ‘Sources of Order in Chinese Law’ (1994) 42 American Journal of Comparative Law 711; see also Wang (n 3) 7.

34 Peter Howard Corne, ‘Creation and Application of Law in the PRC’ (2002) 50 The American Journal of Comparative Law 369.

35 Wang (n 3) 67.

36 Ibid, 68.

37 Ibid, 76.

38 Håvard Bækken, Law and Power in Russia: Making Sense of Quasi-Legal Practices (Routledge, 2019) 64.

39 Wang (n 3) 94.

40 Ibid, 82.

41 Ibid, 82.

42 For a similar argument that is applied to Chinese economic growth, see Yuen Yuen Ang, How China Escaped the Poverty Trap (Cornell University Press, 2016).

43 When looking for law in China, a socio-legal approach is to include court documents that produce the effect of law, even if they are not designated as laws.

44 Wang (n 3) 88.

45 Ibid, 93.

46 Ibid, 93.

47 Ibid, 137.

48 Ding Qi, The Power of the Supreme People’s Court: Reconceptualizing Judicial Power in Contemporary China (Routledge, 2019). By comparison, the Supreme Court of the United States is a tiny court in size.

49 Wang (n 3) 99.

50 Ibid, 108.

51 Kathryn Hendley, ‘Legal Dualism as a Framework for Analyzing the Role of Law under Authoritarianism’ (2022) 18 Annual Review of Law and Social Science 1.

52 Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (Edward Shils tr, 2nd edn, Oxford University Press, 2017).

53 What characterizes a dual state is the presence of a dividing line that separates a state into two components. In the case of Nazi Germany, the line is defined by religion and ethnicity. In other cases, a different characteristic can be used to define the line. For example, Jens Meierhenrich uses the same term to describe apartheid South Africa. See Jens Meierhenrich, The Legacies of Law: Long-Run Consequences of Legal Development in South Africa, 1652–2000 (Cambridge University Press, 2008) 42.

54 Law is regularly used in post-Soviet Russia. In fact, one could make a case that the judiciary was strengthened in the decades of Vladimir Putin’s presidency. However, the law was blithely suspended when dealing with political rivals, the press, and human rights issues. Hence, there is that ‘dualist’ practice of selective enforcement and non-enforcement. See Kathryn Hendley, Everyday Law in Russia (Cornell University Press, 2017); see also Robert Sharlet, ‘Stalinism and Soviet Legal Culture’ in Robert Tucker (ed), Stalinism: Essays in Historical Interpretation (W.W. Norton, 1977) 155; Håvard Bækken (n 38).

55 Hendley (n 51) 3.

56 Hualing Fu and Michael Dowdle, ‘The Concept of Authoritarian Legality: the Chinese case’ in Weitseng Chen and Hualing Fu (eds), Authoritarian Legality in Asia (n 1) 63; Hualing Fu, ‘Duality and China’s Struggle for Legal Autonomy’ (2019) 1 China Perspectives 3; Eva Pils, ‘Rule-of-Law Reform and the Rise of Rule by Fear in China’ in Weitseng Chen and Hualing Fu (eds), Authoritarian Legality in Asia (n 1) 90.

57 Hendley (n 51) 7.

58 Max Weber, Max Weber on Law in Economy and Society, edited and translated by Max Rheinstein (Harvard University Press, 1954); Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (Routledge, 2007); Andras Sajó and Juha Tuovinen, ‘The Rule of Law and Legitimacy in Emerging Illiberal Democracies’ (2018) 64 Osteuropa Recht 506.

59 In the article he contributed to this volume, Wang describes China as a case of law in politics. His study reveals that aspects of the current understanding of authoritarian legality in China is either flawed or does not consider how law operates in a single-party state. It sensitizes us to understand the day-to-day work that the courts do for the regime.

60 Wang (n 3) 58, 177. My reading of how Wang positions himself vis-à-vis legal dualism differs from that taken offered by Donald Clarke in his review of the book. See ‘Review of Shucheng Wang, Law as an Instrument: Sources of Chinese Law for Authoritarian Legality (Cambridge University Press 2022)’ Asian Journal of Comparative Law (forthcoming) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4270609> accessed 1 November 2023. In the chapter on the dual constitution, though Wang uses Fraenkel’s terminology of the prerogative and the normative, he does not, in my view, embrace legal dualism, at least in the form that Fraenkel suggests, the latter asserts a sharp distinction between the prerogative state and the normative stage. Quite the contrary, he argues that the prerogative component of the state has been integrated into the regular court system (the normative). Wang shows readers the detailed mechanisms through which the normative and the prerogative are intertwined with each other. In my view, Wang argues that there are varying degrees of political control in practice for different types of cases. There is however no clear distinction separating the prerogative and the normative. But I agree with Clarke that one should not expect that ordinary commercial cases will be judged on their legal merits alone.

61 Bækken (n 38) 64.

62 Kimberly Morgan and Ann Shola Orloff (eds), The Many Hands of the State (Cambridge University Press, 2007).

63 Kenneth G Lieberthal and David M Lampton, Bureaucracy, Politics, and Decision Making in Post-Mao China (University of California Press, 1992).

64 Wang (n 3) 95.

65 Ibid, 106.

66 Clarke (n 31) 13.

67 John C Scott, ‘Patron-Client Politics and Political Change in Southeast Asia’ (1972) 66 American Political Science Review 91.