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ABSTRACT
An analysis of legality in an authoritarian zone requires a nuanced understanding of its dynamics and how they differ from those conventionally envisioned in a democratic society. This article critically examines the varieties of authoritarian legality in three differentiated paradigms, namely, ‘law and politics’, ‘law with politics’, and ‘law in politics’, each engaging in a distinctive entanglement of law with politics depending on the varying degrees of the law’s autonomy. Furthermore, it points out that the engagement of authoritarian legality is favourably facilitated through politically controllable legal institutions and state-shaped public sphere. Moreover, it argues that the standalone statist reason cannot stand out alone as a legitimate ground for legality unless some other alternative reasons can be dialogically engaged in the public discourse. Otherwise, the force and violence may be clothed in the form of a law that serves as a political instrument for the ruling of the authoritarian government, which can be fuelled by nationalistic ideologies or demagogues.
Acknowledgements
The author would like to thank the two anonymous reviewers and Julien Chaisse for their valuable comments on the earlier version of this paper.
Notes
1 See Erica Frantz, Authoritarianism (Oxford University Press, 2018) 6.
2 For a relevant detailed analysis of the idea and discourse of rule of law, see Teemu Ruskola, ‘The Limits of Liberal Justice’ (2024) 32(2) Asia Pacific Law Review (on this issue).
3 On this point, the case of Singapore, among others, may serve as an illustrative example. For a detailed discussion of authoritarian legalism in Singapore, see generally Jothie Rajah, Authoritarian Rule of Law: Legislation, Discourse and Legitimacy in Singapore (Cambridge University Press, 2012).
4 See, e.g. Fareed Zakaria, ‘The Rise of Illiberal Democracy’ (1997) 76 (6) Foreign Affairs 23; Beatriz Magaloni, Voting for Autocracy: Hegemonic Party Survival and its Demise in Mexico (Cambridge University Press, 2006); Steven Levitsky and Lucan A Way, Competitive Authoritarianism: Hybrid Regimes after the Cold War (Cambridge University Press, 2012); Natasha Lindstaedt, Democratic Decay and Authoritarian Resurgence (Bristol University Press, 2021); Stephan Haggard and Robert Kaufman, ‘The Anatomy of Democratic Backsliding’ (2021) 32 (4) Journal of Democracy 27.
5 Take China as an example. For a relevant discussion, see Taisu Zhang, ‘Xi’s Law-and-Order Strategy: The CCP’s Quest for a Fresh Source of Legitimacy’ (Foreign Affairs, 27 February 2023) <www.foreignaffairs.com/china/xis-law-and-order-strategy> accessed 16 June 2023.
6 Take India as an example. For a relevant discussion, see M Mohsin Alam Bhat, Mayur Suresh and Deepa Das Acevedo, ‘Authoritarianism in India State, Law, and Society’ (2022) 55(4) VRÜ Verfassung und Recht in Übersee/World Comparative Law 459.
7 See Fabio De Sa e Silva, ‘Autocratic Legalism 2.0: Insights from a Global Collaborative Research Project’ (2022) 55(4) VRÜ Verfassung und Recht in Übersee/World Comparative Law 419.
8 For the discussion of a typology of authoritarianism, see Michael Wahmana, Jan Teorellb and Axel Hadenius, ‘Authoritarian Regime Types Revisited: Updated Data in Comparative Perspective’ (2013) 19(1) Contemporary Politics 19; Kwai Hang Ng, ‘Authoritarian Legality with Chinese Characteristics’ (2024) 32(2) Asia Pacific Law Review (on this issue).
9 See Susan H Whiting, ‘Authoritarian Legality and State Capitalism in China’ (2023)19 Annual Review of Law and Social Science 358; Taisu Zhang, ‘Authoritarianism and Legality’ (2024) 32(2) Asia Pacific Law Review (on this issue).
10 See Hualing Fu and Michael Dowdle, ‘The Concept of Authoritarian Legality: The Chinese Case’ in Weitseng Chen and Hualing Fu (eds), Authoritarian Legality in Asia (Cambridge University Press, 2020) 64.
11 This kind of authoritarian turn in the guise of legality has been witnessed, for example, in the cases of Israel, Hungary and Poland, among others. Scheppele terms this phenomenon ‘autocratic legalism’. For more discussion, see Kim Lane Scheppele, ‘Autocratic Legalism’ (2018) 85(2) The University of Chicago Law Review 549.
12 Miro Cerar, ‘The Relationship Between Law and Politics’ (2009) 15(1) Annual Survey of International and Comparative Law 19, 25.
13 JAG Griffith, The Politics of the Judiciary (Manchester University Press, 1977) 191–92.
14 Ibid, 190.
15 See Judith N Shklar, Legalism: Law, Morals, Political Trials (Harvard University Press, 1986) 223.
16 It is admitted that, ‘in a considerable number of civilized societies, the endeavor of the law to build fences against an oppressive expansion of power (private as well as public) has met with a reasonable degree of success’. See Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law (Harvard University Press, 1974) 284.
17 See The Federal Constitutional Court of Germany, ‘The Court’s Duties’ <www.bundesverfassungsgericht.de/EN/Das-Gericht/Aufgaben/aufgaben_node.html;jsessionid=8642C6AC2B1D2F7E57F2D12545B87ECE.internet982> accessed 15 June 2023.
18 Jeremy Waldron says that the relationship between law and politics may be similar to the relationship between legal theory and political theory. On this point, he argues that
the political scientist and the political theorist should pay attention to the work of their counterpart in law, but not necessarily vice versa. The relation may be like that of naval history to military history: naval history is part of military history, and the practitioners of the latter need to understand what is going on in the former. But it is perfectly consistent with this that the naval historians think of their remit as relatively limited, informed only by the broadest or sketchiest understanding of non-maritime aspects of military history.
19 Arendt also mentioned the institutions of higher learning; although any attempt of seizing power was unheard of, unwelcome truths emerged in the universities. See Hannah Arendt, Between Past and Future (Penguin Books, 2006) 255–56.
20 Ibid, 256.
21 This point is illuminated from the discussion of Rudolf Mellinghoff, former Justice of the Federal Constitutional Court of Germany, on the Symposium on ‘70 Years’ Development of Fundamental Rights at the German Federal Constitutional Court’ that I attended at the School of Law, City University of Hong Kong, on 19 May 2023.
22 See Aparna Chandra, William HJ Hubbard and Sital Kalantry, ‘The Supreme Court of India: An Empirical Overview of the Institution’ in Gerald N Rosenberg, Sudhir Krishnaswamy and Shishir Bail (eds), A Qualified Hope: The Indian Supreme Court and Progressive Social Change (Cambridge University Press, 2019) 43.
23 Anuj Bhuwania, ‘The Crisis of Legitimacy Plaguing the Supreme Court in Modi Era Is Now Hidden in Plain Sight’ (Scroll, 1 December 2020) <https://scroll.in/article/979818/the-crisis-of-legitimacy-plaguing-the-supreme-court-in-modi-era-is-now-hidden-in-plain-sight> accessed 16 June 2023.
24 For details of the case, see Supreme Court Observer, ‘Sabarimala Temple Entry: Indian Young Lawyers’ Association v State of Kerala’ <www.scobserver.in/cases/indian-young-lawyers-association-v-state-of-kerala-sabarimala-temple-entry-background/> accessed 16 June 2023.
25 See Bhat, Suresh and Acevedo (n 6) 459–77.
26 Solomon identified four patterns of judicial powers in authoritarian states. See Peter H Solomon Jr, ‘Courts and Judges in Authoritarian Regimes’ 2007 60(1) World Politics 125.
27 See Fu Tian, ‘A Historical Review of China’s System of Adjudicative Independence’ (2016) 2 Global Law Review 36. 田夫, 《中国独立行使审判权制度的历史考察》,《环球法律评论》2016年第2期，第36页.
28 It is observed that, China’s ‘judge quota’ reform was working to develop ‘a culture of rules-based adjudication and judicial autonomy in case handling for most routine cases that are not deemed sensitive’. See Ying Sun and Hualing Fu, ‘Of Judge Quota and Judicial Autonomy: An Enduring Professionalization Project in China’ (2022) 251 The China Quarterly 866, 879.
29 See Shucheng Wang, Law as an Instrument: Sources of Chinese Law for Authoritarian Legality (Cambridge University Press, 2022) 82.
30 For example, the case of Singapore, arguably meeting the basic requirements of a thin rule of law, shows that, apart from the restrictive legislation over some rights embraced in liberal democracies, a statutory and constitutional amendment may be utilized to negate objectionable judicial decisions. See Jianlin Chen, ‘Preserving Constitutionalism by Changing the Constitution: A Revisit and Defense of the Chng Suan Tze Period’ in Weitseng Chen and Hualing Fu (eds), Authoritarian Legality in Asia (Cambridge University Press, 2020) 261; Gordon Silverstein, ‘Singapore: The Exception That Proves Rules Matter’ in Tom Ginsburg and Tamir moustafa (eds), Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge University Press, 2008) 73.
31 See Jennifer Gandhi, Ben Noble and Milan Svolik, ‘Legislatures and Legislative Politics Without Democracy’ (2020) 53(9) Comparative Political Studies 1359.
32 For a detailed discussion of the mechanisms of control over courts in authoritarian politics, see Tamir Moustafa and Tom Ginsburg, ‘Introduction: The Functions of Courts in Authoritarian Politics’ in Tom Ginsburg and Tamir moustafa (eds), Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge University Press, 2008) 14. For a relevant discussion of the case of China, see Xin He, ‘From Hierarchical to Panoptic Control: The Chinese Solution in Monitoring Judges’ (2023) 21(2) International Journal of Constitutional Law 497.
33 These are the eight criteria articulated by Lon Fuller as the requirements of the rule of law. See Gordon Silverstein, ‘Singapore: The Exception That Proves Rules Matter’ in Tom Ginsburg and Tamir Moustafa (eds), Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge University Press, 2008) 75.
34 Joseph Raz, ‘The Rule of Law and Its Virtue’ in The Authority of Law: Essays on Law and Morality (Oxford University Press, 2009) 211.
35 See Li-ann Thio, ‘The Rule of Law within a Non-liberal “Communitarian” Democracy: The Singapore Experience’ in Randall Peerenboom (ed), Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the U.S. (Routledge, 2004) 183.
36 See Sokphea Young, Strategies of Authoritarian Survival and Dissensus in Southeast Asia: Weak Men Versus Strongmen (Palgrave Macmillan, 2021) 147, for a chapter discussing the smart electoral authoritarian leader and discontents in Malaysia.
37 UMNO had governed Malaysia from the independence of Malaya in 1957 until its defeat in the 2018 general election. As Harding notes, ‘For the ruling party to be held unlawful is indeed a catastrophe which must be without precedent in the annals of constitutional law’. See AJ Harding, ‘The 1988 Constitutional Crisis in Malaysia’ (1990) 39(1) The International and Comparative Law Quarterly 57, 59.
38 See Constitution (Amendment) Act 1988, s 8.
39 Some judges have held that the 1988 constitutional amendment to Article 121(1) does not or cannot have the effect of divesting the courts of the judicial power of the Federation. See Gopal Sri Ram JCA in Kok Wah Kuan v PP [2007] 4 CLJ 454; Richard Malanjum CJ (Sabah & Sarawak) in PP v Kok Wah Kuan [2007] 6 CLJ 341; Heliliah Mohd Yusof FCJ in Dato' Seri Anwar Ibrahim v PP [2010] 7 CLJ 397.
40 See Harding (n 38).
41 See Yvonne Tew, ‘The Malaysian Legal System: A Tale of Two Courts’ (2011) 19 Commonwealth Judicial Journal 4.
42 See Silverstein (n 31) 75.
43 Moreover, it has been pointed out that the successful use of law for economic development in an authoritarian state may somehow undermine those critiques, in particular from liberal perspectives, on its lesser attention to civil liberties. See Rajah (n 3) 271–72.
44 For more discussion about the professions and law in China, see William P Alford, William Kirby and Kenneth Winston (eds), Prospects for the Professions in China (Routledge 2010) 23–108.
45 See Mark Jia, ‘Illiberal Law in American Courts’ (2020) 168(6) University of Pennsylvania Law Review 1722.
46 Rationalization and formalization of law, as described by Max Weber, are driven by the interests of those seeking security in their personal circumstances. According to Weber, formalism represents the path of least resistance against arbitrariness and becomes more prominent as economic systems become increasingly complex. Furthermore, Weber argues that ‘Juridical formalism enables the legal system to operate like a technically rational machine’. See Max Weber, Economy and Society: An Outline of Interpretive Sociology (Guenther Roth and Claus Wittich ed, Ephraim Fischoff tr, University of California Press, 1978) 226, 811. Of course, in the American context, legal formalism is viewed differently, as Jeremy Waldron points out. Today, it is seen as ‘irrational or, even worse, as sinister – for a lot of the legal realist critique was against the class interests being overtly promoted under cover of formalism’. See Jeremy Waldron, ‘Desanctification of Law and the Problem of Absolutes’ in David C Flatto and Benjamin Porat (eds), Law as Religion, Religion as Law (Cambridge University Press, 2022) 14.
47 On this point, Shkalar, when mentioning Tokyo Trials, argues that a trial, following the legalistic traditions of the West with natural law thinking based in Judeo-Christian ethics, may teach the Japanese nothing, because the ‘“situational ethics” of the Japanese are inherently unlegalistic’. See Shklar (n 16) 179–80.
48 For a relevant discussion of the religious foundations of Western law and its crisis, see Harold Berman, Faith and Order: The Reconciliation of Law and Religion (William B. Eerdmans 2000) 35–54.
49 See Jia (n 46) 1713–19.
50 See Thio (n 36).
51 For these relevant provisions, see Constitution of the Democratic People’s Republic of Korea, Ch 1, 2, etc.
52 Universal Declaration of Human Rights 1948, Art 29.
53 Article 4 of the International Covenant on Economic, Social and Cultural Rights states that:
The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.
… 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.
54 Arendt points out this extreme situation when discussing the case of the Nazi regime. See Hannah Arendt, Responsibility and Judgement (Schocken Books, 2003) 39.
55 Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 1 SLR (R) 791.
56 See Wojciech Sadurski, ‘Reason of State and Public Reason’ (2014) 27(1) Ratio Juris 21.
57 John Rawls, ‘The Idea of Public Reason Revisited’ (1997) 64(3) The University of Chicago Law Review 771.
58 I borrow the term ‘necessity of life’ from Arendt, who uses it to discuss the household as distinguished from the polis. See Hannah Arendt, The Human Condition (2nd edn, University of Chicago Press, 2018) 32.
59 Habermas says that ‘law has a legitimate force only so long as it can function as a resource of justice’. For relevant discussion, see Jürgen Habermas, Between Facts and Norms (Polity Press, 1997) 145.
60 Arendt (n 59) 26.
61 See Thomas Poole, Reason of State: Law, Prerogative and Empire (Cambridge University Press, 2015) 4.
62 See Sadurski (n 57) 21–22.
63 As Shklar wrote, ‘The fear we fear is of pain inflicted by others to kill and maim us, not the natural and healthy fear that merely warns us of avoidable pain’. See Judith N Shklar, Political Thought & Political Thinkers (University of Chicago Press, 1998) 11.
64 See Fu and Dowdle, ‘The Concept of Authoritarian Legality: The Chinese Case’ (n 11) 83.
65 The forms of control include heavy state investments in infrastructure, investments in state-owned corporations, and direct state investments in the stock market. The weighting of each in the economic dynamics may vary. See Gordon P Means, ‘Soft Authoritarianism in Malaysia and Singapore’ (1996) 7(4) Journal of Democracy 112; Susan H Whiting, ‘Authoritarian Legality and State Capitalism in China’ (2023) 19 Annual Review of Law and Social Science 363.
66 Article 3(1) of the Federal Constitution states, ‘Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation’. Regarding this matter, Tamir Moustafa highlights that religious authority has been constructed through state law and argues that the parallel jurisdictions of shariah and civil courts should not be viewed as a dichotomy between ‘religious’ and ‘secular’, but rather as parallel formations of state law. See Tamir Moustafa, Constituting Religion: Islam, Liberal Rights, and the Malaysian State (Cambridge University Press, 2018) 11. Furthermore, there has been a growing presence of evangelical churches and other non-Islamic religious groups, which has raised concerns about the state’s commitment to religious diversity in society. See United States Department of State Office of International Religious Freedom, Malaysia 2021 International Religious Freedom Report (2021); Gerhard Hoffstaedter, ‘Secular State, Religious Lives: Islam and the State in Malaysia’ (2013) 14(4) Asian Ethnicity 477.
67 Fear, as a political tool, may be employed by political leaders for internal intimidation. For a detailed discussion of the role of political fear, see Corey Robin, Fear: The History of a Political Idea (Oxford University Press, 2004) 16–25.
68 Propaganda, notwithstanding often as a matter of degree, is politically important for authoritarian ruling. For a detailed discussion on propaganda in totalitarian regimes, see Hannah Arendt, The Origins of Totalitarianism (Harcourt, 1976) 341–64.
69 See Gordon P Means, ‘Soft Authoritarianism’ (1996) 7(4) Journal of Democracy 109.
70 See Fu and Dowdle, ‘The Concept of Authoritarian Legality: The Chinese Case’ (n 11) 76–77.
71 See Jason P Abbott, ‘Electoral Authoritarianism and the Print Media in Malaysia: Measuring Political Bias and Analyzing Its Cause’ (2011) 38(1) Asian Affairs: An American Review 2.
72 For a relevant discussion on how the ruling party’s dominance over the government has been used by political business to seize ownership and control of key economic sectors, see Edmund T Gomez, Political Business: Corporate Involvement of Malaysian Political Parties (James Cook University Press, 1994).
73 See Fu and Dowdle, ‘The Concept of Authoritarian Legality: The Chinese Case’ (n 11) 77.
74 In Singapore, media outlets are privately owned but are subject to government regulations and licensing requirements. These regulations help shape the media landscape and ensure compliance with government guidelines. For example, newspapers are privately owned but subject to government approval for the selection of editors, sale of shares, and appointment of boards of directors. See Means (n 66) 110.
75 Ibid.
76 See Shklar (n 16) 144.
77 Ibid.
78 See Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press, 2013) 2–3.
79 See Scheppele (n 12) 582.