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ABSTRACT
In this essay, I use Professor Sucheng Wang's recent 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 suggest that 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 (democracies and authoritarian states). I then 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. 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.
Acknowledgements
I would like to thank David Eng, Samuli Seppänen, and two anonymous reviewers for their comments on an earlier version of this paper.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Shucheng Wang, Law as an Instrument: Sources of Chinese Law for Authoritarian Legality (Cambridge University Press, 2022) 174.
2 Vivienne Shue, ‘Party-State, Nation, Empire: Rethinking the Grammar of Chinese Governance’ (2018) 3(3) Journal of Chinese Governance 268, 281.
3 Ibid.
4 Perry Anderson, Lineages of the Absolutist State (Verso, 1974) 463.
5 See, eg, Rosaria Vignolo Munson, ‘Who Are Herodotus’ Persians?’ (2009) 102(4) Classical World 457.
6 Charles de Secondat, Baron de Montesquieu, The Spirit of the Laws (Cambridge University Press, 1989).
7 See Jean Bodin, Six Books of the Commonwealth (Barnes and Noble, 1967).
8 As Maldonado notes, ‘There are fewer specific references to Africa and America in comparison to those regarding Asia’. Daniel Bonilla Maldonado, Legal Barbarians: Identity, Modern Comparative Law and the Global South (Cambridge University Press, 2021) 53.
9 Ibid, 68.
10 Patrick Henry, Give Me Liberty or Give Me Death (Great Neck Publishing, 2017).
11 Karl Wittfogel, Oriental Despotism: A Comparative Study of Total Power (Yale University Press, 1957).
12 See generally William Pietz, ‘The ‘Post-Colonialism’ of Cold War Discourse’ (1988) 19/20 Social Text 55.
13 See Francis Fukuyama, The End of History and the Last Man (Free Press, 1992).
14 For this periodization, see Samuel Moyn, The Last Utopia: Human Rights in History (Harvard University Press, 2010) 71; Samuel Moyn, Human Rights and the Uses of History (Verso Books, 2014) 146.
15 See Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2000) 64.
16 Roscoe Pound, ‘Justice According to Law (II)’ (1914) 14(1) Columbia Law Review 122.
17 I discuss this at length in Legal Orientalism: China, the United States, and Modern Law (Harvard University Press, 2013) 229.
18 Samuli Seppänen's study of ideological conflicts in the field of Chinese law notes specifically the salience of Dicey's paradigmatic conception. Samuli Seppänen, Useful Paradoxes: Ideological Conflict and the Rule of Law in Contemporary China (Cambridge University Press, 2016) 6.
19 Evgeni Pashukanis, A General Theory of Law and Marxism (Pluto Press, 1989) 40.
20 See generally Andrei Y Vyshinski (ed), The Law of the Soviet State (Macmillan B Company, 1948).
21 See Joel Andreas, Disenfranchised: The Rise and Fall of Industrial Citizenship in China (Oxford University Press, 2019) 98.
22 Fu Hualing and Richard Cullen, ‘From Mediatory to Adjudicatory Justice: The Limits of Civil Justice Reform in China’ in Margaret Y K Woo and Mary Gallagher (eds), Chinese Justice: Civil Justice Resolution in Contemporary China (Cambridge University Press, 2011) 25.
23 Benjamin Liebman, ‘A Return to Populist Legality? Historical Legacies and Legal Reform’ in Sebastian Heilmann and Elizabeth Perry (eds), Mao's Invisible Hand (Harvard University Press 2011) 165.
24 Qianfan Zhang, ‘The Communist Party's Leadership and the Rule of Law: A Tale of Two Reforms’ (2021) 30(130) Journal of Contemporary China 578.
25 Zhong Zhang, ‘Ruling the Country without Law: The Insoluble Dilemma of Transforming China into a Law-Governed Country’ (2022) 17(2) Asian Journal of Comparative Law 198.
26 Tamar Groswald Ozery, ‘Unraveling China's Capital Market Growth’ (SJD dissertation, University Michigan Law School, 2019) 150-51; Tamar Groswald Ozery, Law and Political Economy in China: The Role of Law in Corporate Governance and Market Growth (Cambridge University Press, 2023).
27 Wei Cui, The Administrative Foundations of the Chinese Fiscal State (Cambridge University Press, 2022).
28 Taisu Zhang makes the intriguing argument that the tendency of legal institutions to atomize society into individuals may make law especially attractive to authoritarian regimes, allowing them to regulate society while discouraging the formation of social groupings that could potentially challenge state power. See Taisu Zhang, ‘Authoritarianism and Legality’ (this Symposium).
29 See Christopher D Stone, ‘Should Trees Have Standing? Towards Legal Rights for Natural Objects’ (1972) 45(2) Southern California Law Review 450.
30 See Haiyan Lee, A Certain Justice: Toward an Ecology of the Chinese Legal Imagination (University of Chicago Press, 2023).