Authoritarianism and legality

ABSTRACT

This symposium essay offers some generalized theoretical propositions on the connection between authoritarianism and legality. It suggests that there are least some sociopolitical contexts in which authoritarian regimes may be even more strongly motivated to pursue legality than their democratic peers. This conjecture comes in three steps: first, authoritarian regimes fear organic social mobilization significantly more than their democratic peers. This incentivizes them, especially in larger, more diverse societies with less predictable sociopolitical landscapes, to pursue the atomized governance of society. Second, legality is, at its core, an institutional design that both responds to and produces social atomization. Not only is law a necessary ordering device in stranger-oriented societies where communal self-governance and self-regulation is unlikely to be effective, but it also produces reliance effects that render social relations more distant. Third, combining these two arguments, in very large, very diverse societies, authoritarian regimes may have even stronger incentives to pursue law-centric modes of sociopolitical ordering than do democratic ones. This does not necessarily mean that they will always act upon such incentives, but it does offer a deeper explanation for why the Chinese regime in particular is very unlikely to decisively abandon its current legalistic trajectory at any point in the foreseeable future. This is very much a thought experiment, but hopefully, one that offers useful ideas for future research.

KEYWORDS:

• Authoritarian regimes
• liberal democracy
• authoritarian legality
• Sinosphere
• communal social norms

Acknowledgements

I would like to extend my gratitude to Peter Wang and the exceptional editorial team at Asia Pacific Law Review for their patience and support, as well as to two anonymous reviewers for their insightful comments on an earlier draft of this paper.

Disclosure statement

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

Notes

1 E.g. Tor Krever, ‘The Legal Turn in Late Development Theory: the “Rule of Law” and the World Bank’s Development Model’ (2011) 52(1) Harvard International Law Journal 287; Brian Z Tamanaha, ‘Review of The Lessons of Law-and-Development Studies, by Anthony Carty, Sammy Adelman, and Abdul Paliwala’ (1995) 89(2) The American Journal of International Law 470.

2 Tom Ginsburg and Tamir Moustafa, ‘Introduction: The Politics of Courts in Authoritarian Regimes’ in Tom Ginsburg and Tamir Moustafa (eds), Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge University Press, 2008) 1.

3 Taisu Zhang and Tom Ginsburg, ‘China’s Turn Towards Law’ (2019) 59(2) Virginia Journal of International Law 306.

4 Ibid.

5 E.g. Kwai Hang Ng, ‘Is China a “Rule-by-Law” Regime?’ (2019) 67(3) Buff. L. Rev. 793; Hualing Fu and Michael Dowdle, ‘The Concept of Authoritarian Legality: The Chinese Case’ in Weitseng Chen and Hualing Fu (eds), Authoritarian Legality in Asia: Formation, Development and Transition (Cambridge University Press, 2020), 63.

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

7 Susan H Whiting, ‘Authoritarian ‘Rule of Law’ and Regime Legitimacy’ (December 2017) 50(14) Comparative Political Studies 1907.

8 Shucheng Wang, Law as an Instrument: Sources of Law for Chinese Authoritarian Legality (Cambridge, 2022).

9 Whiting (n 7); Yiqin Fu, Yiqing Xu and Taisu Zhang, ‘Does Legality Produce Political Legitimacy? An Experimental Approach’ (November 18, 2021) Yale Law & Economics Research Paper. <https://ssrn.com/abstract=3966711>.

10 A good review of this literature can be found in Xi Chen and Dana M Moss, ‘Authoritarian Regimes and Social Movements’ in The Wiley Blackwell Companion to Social Movements (2018) 666.

11 See John Krinsky and Nick Crossley, Social Networks and Social Movements (Routledge, 2016) 1.

12 For general discussion, see, e.g. Elizabeth J Perry, ‘Trends in the study of Chinese politics: State-Society Relations’ (1994) 139 The China Quarterly 704; Joel S Migdal, Strong Societies and Weak States: State-Society Relations and State Capabilities in the Third World (Princeton University Press, 1988).

13 For detailed theoretical discussion of this mechanism and related ones, see Taisu Zhang, ‘Beyond Information Costs: Preference Formation and the Architecture of Property Law’ (2020) 12 Journal of Legal Analysis 1.

14 See, e.g. Sarah Oxenbridge and William Brown, ‘Achieving a New Equilibrium? The Stability of Cooperative Employer–Union Relationships’ (2004) 35(5) Industrial Relations Journal 388.

15 These conceptual exercises are drawn from Fu, Xu and Zhang (n 9).

16 See, e.g. Lior Jacob Strahilevitz, ‘Social Norms from Close-Knit Groups to Loose-Knit Groups’ (2003) 70(1) The University of Chicago Law Review 359.

17 Robert C Ellickson, ‘Law and Economics Discovers Social Norms’ (1998) 27(S2) The Journal of Legal Studies 537.

18 See Taisu Zhang and John D Morley, ‘The Modern State and the Rise of the Business Corporation’ (2022) 132 Yale LJ 1970.

19 Ibid.

20 Ibid.

21 Ibid.

22 For general discussion, see, e.g. Shyamkrishna Balganesh and Taisu Zhang, ‘Legal Internalism in Modern Histories of Copyright’ (2021) 134 Harvard Law Review 1066.

23 Legal pluralism in the modern world tends to be concentrated in developing countries or in international law. See Paul Schiff Berman, ‘The New Legal Pluralism’ (2009) 5 Annual Review of Law and Social Science 225.

24 In many ways, James Scott’s observations on the decline of moral economies in the face of state expansion still apply. James C Scott, The Moral Economy of the Peasant: Rebellion and Subsistence in Southeast Asia. Vol. 315 (Yale University Press, 1977); James C Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (Yale University Press, 2020).

25 E.g. Gunter Bierbrauer, ‘Toward an Understanding of Legal Culture: Variations in Individualism and Collectivism between Kurds, Lebanese, and Germans’ (1994) 28 Law & Soc'y Rev. 243.

26 E.g. Larissa Katz, ‘Exclusion and Exclusivity in Property Law’ (2008) 58(3) University of Toronto Law Journal 275; Henry E Smith, ‘Mind the Gap: The Indirect Relation between Ends and Means in American Property Law’ (2008) 94 Cornell L. Rev. 959. For general discussion, see, e.g. Espen Sjaastad and Daniel W Bromley, ‘The Prejudices of Property Rights: On Individualism, Specificity, and Security in Property Regimes’ (2000) 18(4) Development Policy Review 365.

27 Thomas Franck, ‘The Empowered Self: Law and Society in the Age of Individualism’ (2001).

28 E.g. Henry E Smith, ‘Exclusion versus Governance: Two Strategies for Delineating Property Rights’ (2002) 31(S2) The Journal of Legal Studies S453.

29 E.g. Daniel C Esty, ‘Good Governance at the Supernational Scale: Globalizing Adminsitrative Law’ (2005) 115 Yale LJ 1490.

30 E.g. Carl Minzner, Legal Reform in the Xi Jinping Era, 20 Asia Pol. 4, 4 (2015); Zhang Qianfan, Judicial Reform in China, An Overview, in China’s Socialist Rule of Law Reforms under Xi Jinping (John Garrick and Yan Chang Barrett, eds. 2016); Suisheng Zhao, Xi Jinping’s Maoist Revival, 27 J. Democracy 83, 92 (2016); Susan Shirk, The Return to Personalistic Rule, 29 J. Dem 22 (2018).

31 Zhang and Ginsburg (n 3).

32 See, e.g. Frederick C Teiwes, ‘The Paradoxical Post-Mao Transition: From Obeying the Leader to ‘Normal Politics’’ (1995) 34 The China Journal 55.

33 See Jennifer Altehenger, Legal Lessons: Popularizing Laws in the People’s. Republic of China, 1949–1989 (2018).