1.2.1 Managing Threats to Order and Security

For an authoritarian regime, legality can offer promising means to fulfill the most indispensable function: regime survival – the most basic need in Maslow’s hierarchy and the most elemental aim of state behavior in realist theories of international relations. Legality can address several types of threats to social and political order and the security of the regime and its leaders.

First, criminal law and related legal institutions – including courts, prosecutors, and police – provide mechanisms for punishing, preventing, or deterring behavior that can undermine social and political order or the rulers’ grip on power. This includes disruptive activities in society that reflect or reveal state failure to fulfill vital functions of providing safety and security to its people, as well as acts by political opponents challenging the authority of powerholders or the state itself. Often, this task can be accomplished more effectively or efficiently through legality. Security forces in an authoritarian regime that operate through ad hoc commands or political campaigns may prove less disciplined, or create greater collateral costs, in maintaining order and control than would reliance on more law-based means. Totalitarian techniques – which are “low legality” – can be costly in material resources and political legitimacy. An approach that uses “lawless” methods to terrorize critics or denies citizens space secure from state intervention is hard to manage and sustain. A regime that uses such means can prove brittle. Mao-era China provides an abject lesson in some of these possibilities, one seemingly not lost on China’s reform-era leaders.Footnote ¹³

Second, and relatedly, legality – especially positivist legality in criminal law – can help quash the regime’s political opponents by legitimating suppression to relevant audiences at home and abroad. During the post-Mao era, China’s authoritarian regime has strived to portray persecution of political dissidents as prosecution for violating ordinary laws (such as those against disruption of public order or evasion of taxes) or politically neutral laws regarding state security (such as those against subversion or divulging state secrets). In Fu and Dowdle’s assessment of Xi-era China, this is a tricky business, with the formal legal mechanisms of the ordinary criminal process interacting uneasily and unstably with informal modes of political prosecution and informal, extralegal repression.

Other East Asian authoritarian regimes seem to have appreciated positivist legality’s potential to legitimate uses of state power to support existing political orders and suppress dissent. During the postwar, pre-democratization periods in Taiwan and Korea, authoritarian governments used the positive public law of the Cold War national security state (influenced by the United States, as Erik Mobrand points out in his chapter’s analysis of Korea) and adopted emergency measures to formally suspend constitutional limits to prosecute and suppress dissenters and prohibit opposition parties. As Davis addresses with foreboding, the National People’s Congress Standing Committee has used – or abused – its power to interpret Hong Kong’s constitution-like Basic Law, and the Hong Kong Special Administrative Region government has reacted negatively to the Occupy Central Movement – including prosecuting its leaders – in ways that have relied on proper forms of legality to rebuff or suppress social pressure for democratization. In Singapore, as Jianlin Chen explain, the government used libel laws against the regime’s critics and pursued a procedurally punctilious parliamentary override of a court decision imposing modest limits on state powers under the Internal Security Act.

Third, legality can curb threats to social order and social peace by helping provide ordinary citizens with some security in their persons, property, and expectations. Laws and legal institutions that provide rights and protect material interests from infringement by private actors, the state, or hybrid entities, can reduce reasons for the people to turn against, and can give them reasons to support, the authoritarian status quo.

Here, again, reform-era China provides striking examples, largely because the regime had so thoroughly foregone this aspect of legality during much of the Mao era. Providing greater security and rights for much of the populace was central to a legal reform agenda that repudiated the then-recent Cultural Revolution, which had been characterized by twin evils of lawlessness: tyranny (by the party-state) and chaos (within society).Footnote ¹⁴ In many East Asian authoritarian states (including Singapore, Hong Kong, and Japan), legality in the form of protecting economic rights and some civil liberties, but not rights to participate in politics or publicly and collectively criticize the regime, indicate the promise this type of legality holds for authoritarian rulers.

Fourth, legality – specifically, litigation and other formal means for addressing disputes and complaints – can steer potentially explosive political challenges into arenas that are safer for the regime. Lawsuits funnel conflicts that might be taken to the streets into courts and other organs that, even in authoritarian regimes, can be perceived as relatively apolitical and autonomous from ruling authorities, with their decisions thus more likely legitimate in the eyes of losing parties. This pattern is particularly prominent in suits against the state – the domain of administrative tribunals found in many East Asian authoritarian states. China’s Administrative Litigation Law offers a prominent example, but it is far from unique. As Fu and Dowdle note concerning China, such measures work symbiotically with other legal measures that stunt civil society.

Lawsuits nominally not involving the state can present variations on this theme. Mass tort cases, such as those over melamine-tainted milk poisonings or earthquake-collapsed buildings or other public interest and potential “impact” litigation in contemporary China (which the regime has viewed with wariness and hostility), and environmental pollution and other social justice cases in Japan during the early decades of democratic legality (when, Nakano Koichi argues in his chapter, legacies of bureaucratic authoritarian legality lingered), can divert potentially disruptive political issues – principally state failures to regulate – into the state’s legal institutions.Footnote ¹⁵ Legal doctrines and administrative orders limiting class actions or suits with large numbers of plaintiffs reduce the risk that lawsuits will become vehicles for larger political movements, making litigation less threatening to authoritarian regimes. As the Chinese mass tort cases and Japanese pollution cases illustrate, the state also can preempt, or truncate, impact litigation by offering state-brokered or state-run initiatives that provide ad hoc or discretionary relief without creating more state-constraining, legally enforceable rights.

Fifth, legality can solemnize, and thus make more credible and effective, an authoritarian regime’s efforts at accommodation in ethnically mixed and potentially conflict-ridden societies.Footnote ¹⁶ Singapore’s deeply legally entrenched communal pluralism, to limit domination by the ethnic Chinese majority, is a notable example. China’s constitutionally based system of “autonomous regions” for national minorities, and laws granting privileges or exemptions to ethnic minorities (including from once-draconian population control policies) are examples – although overshadowed by harsh and repressive measures, especially in Xinjiang and Tibet – of an authoritarian regime’s appreciation for this aspect of legality.

Finally, legality can help contain threats to political order and regime stability from upper reaches within authoritarian regimes. By mandating means for orderly and predictable succession, promising former leaders will face only lawful punishment for crimes such as corruption (rather than political reckoning after a political struggle), and so on, legal rules can hold out hope of ameliorating “winner takes all” and “I live, you die” struggles in elite politics. Unmitigated, such dynamics can impede regime functioning. They impel leaders to divert attention from policy priorities to factional politics, possibly spawning social conflict and imperiling regime stability. The absence of such retribution-limiting law also can feed top-level resistance to transition from authoritarian rule.Footnote ¹⁷ Post-Mao China’s rules to limit leaders’ tenure in office and to address official corruption offer examples of this dimension of legality’s potential appeal and value for authoritarian regimes – albeit within limits, given that the mechanisms have been only partly law-based and have been shaken by, for example, moves in 2018 to eliminate constitutional term limits for the president and to create a state supervision commission entwined with party disciplinary mechanisms and wielding powers formerly belonging to prosecutors. In this book, Tom Ginsburg’s account of Japan depicts an analogous phenomenon, characterizing the Meiji constitution as a “grand bargain” among the emperor and factions of oligarchs to manage potentially destabilizing elite conflicts.

1.2.2 Fostering Economic Development

Legality can be attractive to authoritarian rulers because it promises to promote economic development. From Meiji and Qing reformers, through the rise of the four “tiger” economies of Korea, Taiwan, Hong Kong, and Singapore and their would-be imitators in the region, to reform under socialism in China and Vietnam, East Asian authoritarian states have been developmental states in which delivering economic prosperity has been a policy priority, and source of legitimacy.Footnote ¹⁸

Leaders in East Asian authoritarian regimes have seen law and legal institutions – particularly those borrowed from economically advanced nations – as promising, perhaps necessary, means to economic development. For reformist elites in Meiji Japan and late Qing China, adopting or adapting Western legal and law-related institutions was a strategy for national technological advancement and economic dynamism, and, thus, security against foreign, largely Western, encroachment. (Japan was both an additional model and an additional threat for some.) For newly industrializing, politically authoritarian entities in postwar East Asia as well, Western-based models of law and legal institutions were part of the machinery for development. For Singapore and Hong Kong, high-quality legal orders for the economy, established by colonial governments and sustained after the end of British rule, are widely and plausibly credited (including by David Campbell and Richard Cullen in this book) for remarkable economic success. For Hong Kong, Singapore, Taiwan, and Korea in the early postwar decades and China and Vietnam during their socialist reform eras, a central element in the recipe for economic development was engaging in international trade and – especially for China and Vietnam – welcoming foreign investment. Those economic policies entailed – and perhaps required – adopting and implementing laws based on foreign models and convergent with international standards.

Many academic theories and much policy advice, based partly on East Asian experiences, have asserted that law (with market-consistent content) is important for economic development. This thread runs through the “law and development” literature of the 1970s; formulations of the “East Asian Model” in the 1980s; the Washington Consensus (with prescriptions for strong property rights and international economic openness that imply legal agendas); and the World Bank’s touting the rule of law as an element of good governance and a pillar supporting economic development.Footnote ¹⁹

The view that legality contributes significantly, perhaps indispensably, to economic development may recognize a “universal truth” of modernization. Or it may indicate path-dependency: although other routes to development are possible, the goal is more easily and reliably attainable for later-developing states through engagement with an outside world that expects or demands legality (or imposes big risk premiums in its absence) and that offers tested models for emulation. Or it may reflect lessons mistakenly derived from now-developed countries’ pasts, which may represent a path that is neither necessary nor replicable. Or it may, particularly in postcolonial cases, be a legacy of “legal transplants,” with once-foreign law and legal institutions taking root and closing off alternative paths.

Whatever the origins or accuracy of the view that law promotes development, the idea seemingly has persuaded authoritarian regimes in East Asia. To varying but significant extents, authoritarian rulers of East Asian developmental states have turned to laws and legal institutions to promise security of expectations to economic actors (in the form of private property, contract law, and so on), provide broadly market-conforming rules for the economy (including laws on corporate structures, capital-raising mechanisms, competition policy, and the like), align with international standards for economic engagement (particularly international trade and foreign investment), and check state predation (including through legal protection of citizens’ economic rights and administrative or criminal law constraints on state actors). Law’s perceived role in development does much to account for the gap between law for the economy and law for more political matters that has been a common pattern in East Asian authoritarian regime.

1.2.3 Strengthening State Capacity

Another reason legality can have a powerful allure for authoritarian regimes is law’s potential to enhance state power and effectiveness. All regimes seek authority, and authoritarian regimes – as their name suggests – are no exception.Footnote ²⁰ Robust capacity to govern is a precondition for successful developmental states, which have been prevalent in authoritarian East Asia. The state-strengthening imperative may be potent in East Asia also for historical reasons: deep-seated memories and fears of internal fragmentation (e.g. in rebellion-prone China or feudal Japan) and external vulnerability (including colonial or quasi-colonial subjugation in the nineteenth and twentieth centuries, or recent threats from powerful and hostile neighbors or unforgiving international economic and political environments).

The paradox of authoritarian legality can seem especially acute in the context of legality’s contribution to state capacity: law concerning state institutions and actors is often – and often rightly – seen as constraining state power. But such law also can be state-empowering. Even ostensibly state-limiting law can be Janus-faced, enhancing state efficacy even as it limits state actors’ discretion.

As authoritarian rulers and elites in East Asia and elsewhere appear to have realized, constitutions serve formally to confer and confirm state powers, not just to limit them. Constitutions are literally – and can be functionally – “constitutive” of the state and its authority. The idea that laws defining the powers of institutions and officials are vital to creating a strong and capable state has ancient roots, prominently in Chinese Legalist (fajia) thinking two millennia ago. Late-nineteenth-century reformers saw constitutional borrowing from Western models as a means to strengthen the state and China’s capacity to protect itself against threats from foreign powers. Here, Qing China was following Meiji Japan, where, as Ginsburg discusses, the adoption of a “rule of law” system with constitutionally structured legal and political institutions, including parliament, a bureaucracy, and courts, contributed to development of a capable state.

The constitution of the Republic of China, which became the charter for the authoritarian KMT-led regime in Taiwan, reflected the thought of Sun Yat-Sen, whose political theories extended the late Qing project of seeking legal-institutional solutions to China’s weakness. Sun, too, sought a more capable government and a more powerful China through a constitutional engineering project that looked to Western examples while also adapting traditional Chinese institutions. During the PRC era, China’s rulers have adopted four new constitutions, each marking a new political period – or repudiating the preceding one – characterized by distinctive institutional arrangements consistent with a particular conception of the contours and bases of authoritarian state power. Hong Kong’s Basic Law – a mini-constitution for the Special Administrative Region – is a variation on this theme. It delegates powers in principle belonging to the central government, and instantiates an executive-dominated, limitedly democratic system of governance. Tellingly, the recurring and tumultuous battles over the limits, and proper foundations, of governmental power in Hong Kong – recent examples of which Davis analyzes – have been waged largely in terms of interpreting the Basic Law.Footnote ²¹

The pattern extends to sub-constitutional levels. Throughout authoritarian East Asia, regimes have turned to emergency powers or state of emergency laws to authorize and empower state actors to wield powers more expansive than those accorded by ordinary law.Footnote ²² For Beijing, the Hong Kong Basic Law is mere legislation, not a constitution, and thus underscores and implements central government authority in a special (and, for Beijing, vexing) part of China.

Among ordinary state-structuring laws, the insight of Max Weber (in Bureaucracy) points to a reason for authoritarian regimes to find aspects of legality attractive.Footnote ²³ Legal rules – including ones that delineate institutions’ authority, authorize officials to act, coordinate differentiated governmental powers, set forth limits to institutions’ and officials’ mandates, and govern who may hold official posts – can produce a more effective, efficient, and disciplined state. They can help constrain state agents’ overreach, reduce state functionaries’ shirking, and make the state’s hands and feet more responsive to directives from its head. Law for the state thus can help redress problems such as: agency costs, local abuses of power, corruption, capture by the objects of state regulation, sloth, and paralyzing wariness about consequences of taking not-clearly-authorized but desirable and innovative measures or unpopular but necessary or obligatory actions.

Law concerning state organs has been an area of significant development in East Asian authoritarian regimes. Ginsburg addresses state-strengthening dimensions of Meiji constitutional reforms, including creating an autonomous administration and a civil service system, and centralizing power from the quasi-feudal pattern of the Tokugawa period. Nakano tellingly calls Japan a case of “bureaucratic authoritarian legality.” The accounts of contemporary China in this volume by Fu and Dowdle and Pils see legality in contemporary China as heavily focused on pursuing party-state control and securing its foundations.

Especially for the remaining communist regimes in East Asia (and to some extent for the KMT-led regime in pre-democratization Taiwan), a mutation of Weber’s point gives an impetus to seek elements of legality. Laws and legal systems are among a Leninist regime’s “organizational weapons.”Footnote ²⁴ Although narrowly instrumentalist and far removed from “rule of law” ideals, a Leninist conception of legality is not inherently absurd, as the reform-era Chinese experience (including in the Xi era) suggests. Explicitly politicized laws providing for suppression and punishment of those deemed enemies of the party-state are welcome additions to the arsenal of a Leninist regime. Laws structuring state organs and defining state functionaries’ ambits, and targeting indiscipline and corruption within the party-state, appeal to Leninists as well as Weberians – as the reform-era Chinese example vividly illustrates.

Even seemingly state-power-constraining features of legality can appeal to authoritarian rulers because, overall, they can strengthen state capacity. Anti-corruption laws address behavior by officials that departs from the leadership’s agenda and erodes regime legitimacy. Citizen suits against the state can enlist the public to help authoritarian rulers keep underlings in line and on task. This function can be performed when members of the public turn to legal rules to seek redress, including in the form of invoking legal rules and rights when seeking state-provided informal and discretionary relief. Such legal or law-related mechanisms for engaging citizens in increasing the state’s internal discipline holds the additional appeal to authoritarians of perhaps deflecting or delaying popular demand for democracy.Footnote ²⁵

Putting policies in legal form can serve the authoritarian state’s quest for capability through mast-binding and signaling, perhaps most evidently in the context of efforts to promote regime policies pursuing economic development. Where the regime insists (credibly) that especially important or stable policies are put into legal form, and where law enjoys (some) social legitimacy such that relevant audiences view law as more serious or worthy of confidence than (mere) policy, using legal forms allows an authoritarian regime to make more persuasive, and, therefore, potentially effective and successful, policy commitments. Substantive laws – some concerning state behavior, and some nominally addressing nonpublic behavior (such as economic interactions in mixed-market economies) – can send important messages to the public about an authoritarian regime’s policy commitments, the undermining of which by state actors then becomes an occasion for regime-sanctioned whistle-blowing, sometimes in the form of citizens’ invoking legal rights and rules. Reneging on the commitments embodied in law could undermine the regime’s capacity to make self-interested credible commitments in the future.

Laws – including procedural laws that offer the public and stakeholders legitimate and stable opportunities for input into, or feedback about, legislation and regulation – can be potent information-gathering tools for the regime. They can generate better law (in terms of suitability and effectiveness in pursuing policy goals), and more socially accepted law (which is less likely to be resisted), and, thus, a state more capable of implementing its (law-embodied) policies.

1.2.4 Legitimating Authoritarian Rule

Legality, even when modest or shallow, can help legitimate authoritarian rule. The rule of law, and lesser forms of legality, have a curious and elusive, but potent, capacity to confer legitimacy. Legitimacy is a chronic concern for authoritarian regimes, especially during the postwar and post-Cold War eras when democracy has become a global standard for legitimate governance. Authoritarian regimes often invest significantly in touting their legal regimes to foreign and domestic audiences. That those claims are often hollow arguably confirms that their purposes include legitimation (rather than performance of more tangible functions discussed earlier in this chapter). Here, hypocrisy may indeed be the tribute that vice pays to virtue – a tribute worth paying because legality matters for legitimacy.

For East Asian authoritarian regimes, some level of legality has long been a means to seek legitimacy or acceptance internationally. For Meiji Japan and Qing China, reforming “barbaric” legal systems (as the West dubbed them) to resemble Western models was a price of admission to the club of “civilized” nations and, in turn, claiming full rights of states in the international system (including freedom from foreign powers’ encroachments that threatened national security and sovereignty).

More recent global developments, also relevant in authoritarian East Asia, reprise these nineteenth-century patterns: Washington Consensus-based prescriptions for developing countries’ domestic legal orders; post-Cold War rule-of-law and constitutional democracy norms as foci for global NGOs and Western powers’ policies; and the expectations or requirements for domestic legal orders established by the WTO-centered regime for international trade and myriad bilateral investment treaties based increasingly on developed, capital-exporting country templates.Footnote ²⁶ As Kellogg argues concerning China’s Foreign NGO Law, and in a point that resonates broadly, China risks its already-modest soft power and international legitimacy when it adopts laws that turn China’s back on pro-legality international norms and institutions.

The authoritarian’s game may be to undertake relatively empty or cosmetic changes to satisfy foreign audiences. Modern East Asia authoritarian regimes offer examples of efforts to draw on the internationally legitimating power of legality to avoid or parry foreign critiques of repressive domestic orders. During the Cold War, superficially liberal-democratic, familiar-to-the-West constitutions and legal orders offered international political cover for dissent-intolerant regimes, and facilitated US support for authoritarian rulers, in Korea and Taiwan. For China, post-9/11 UN Security Council resolutions expounding international legal obligations for combatting terrorism, and the US’s adoption of terrorism-focused national security laws, provided external law-related legitimation for harsh measures that China’s regime has taken against ethno-religious and political dissent.Footnote ²⁷ Authoritarian regimes in East Asia – including reform-era China, pre-democratization Taiwan, and post-reversion Hong Kong – have taken care to tell the world that what critics denounce as political persecution is ordinary prosecution consistent with due process and the state’s lawful role in protecting itself and social order.

Law’s capacity to bolter legitimacy – and legality’s resulting appeal to authoritarian rulers – may be no less important when the forms or substance of legality are addressed to domestic audiences. Weber’s account of political legitimacy, in which legal-rational authority becomes the form of legitimate authority in polities where charismatic authority is scarce and traditional authority has waned, speaks to situations that are common in East Asian authoritarian polities, especially amid the often relentless and successful pursuit of market-consistent economic development.Footnote ²⁸ Fallow constitutions in authoritarian states (in East Asia and more generally) do little to shape exercises of state power, yet they can strengthen authoritarian rule by enhancing its legitimacy. Walter Bagehot’s insight concerning Britain’s constitutional monarchy – that “dignified” constitutional institutions with little real power (or relation to how power is exercised) can contribute to the authority of “efficient” institutions that actually wield power – resonates with authoritarian constitutions’ roles in East Asia, perhaps most pointedly (if not most potently) in reform-era China.Footnote ²⁹ In Ha and Nicholson’s account, Vietnam’s limited move toward constitutionalism, with largely undiminished party dominance, suggests a broadly similar phenomenon. Su discusses a seemingly simple, but interestingly recursive, example of this phenomenon: Taiwan’s authoritarian KMT regime adopted a law-governed structure for not-very-democratic elections, tapping the legitimacy of both law and democracy – although leaning more on legality (having law-governed elections) than on democracy (given the context of a Mainlander-dominated KMT ruling over a majority Taiwanese population).

A second pattern may be found in authoritarian regimes in Hong Kong and Singapore. The rule of law is a colonial legacy on which postcolonial regimes rely as a basis for legitimacy. Perceptions of erosion, or fragility, of legality are seen as blows to – or bases for challenging – the regime’s legitimacy. This has been an increasingly prominent concern in Hong Kong (one that Davis emphasizes but that Campbell and Cullen suggest is overblown, given the resilience of what they call a broadly and deeply shared understanding of the socially beneficial nature of law). Kindred but lesser worries have arisen in Singapore, where the constitutional amendment to overturn the court decision limiting the government’s use of detention powers drew significant criticism as a threat to the rule of law (criticism that Jianlin Chen concludes overstates the problem and misses constitutionalism-preserving aspects of the regime’s action).

Another example is the lengths to which East Asian authoritarian regimes have gone to convince their publics that seemingly politically motivated moves targeting political dissidents are lawful sanctions for violating positivistically valid criminal laws, including those against ordinary antisocial behavior (destruction of property, evasion of taxes, breaches of the peace, and the like) or against threats to state security (sedition, disclosure of state secrets, and so on). As the reform-era Chinese approach illustrates, East Asian authoritarian regimes have other means at their disposal – including punishment outside the formal legal system and, in less legality-minded times, incarceration for “thought crimes.” Yet, they often prefer to employ potentially more legitimacy-conferring (or legitimacy-protecting) mechanisms of ostensibly apolitical criminal law.

Another variation on this theme may be found in East Asian authoritarian regimes’ emergency powers laws. The legitimating potential of legality is a possible answer to the puzzle of why a regime with nearly unlimited powers would find it necessary or desirable to put claims to exceptional powers into formal legal form. It also may explain why the Schmitt–Dyzenhaus discourse about the relative wisdom of making emergency powers intra-constitutional or extra-constitutional would be seen as warranting serious, if regionally distinctive, discussion in the context of authoritarian regimes in East Asia.Footnote ³⁰

The link between legality and legitimacy in authoritarian regimes may be – and in East Asia has been – reinforced by regimes’ efforts to promote legality for instrumental reasons that concern downstream effects. When an authoritarian regime pledges to rely on laws to punish and deter state-disapproved behavior, encourage market-regarding economic activities, or define parameters of authorized and permissible actions by state or party-state actors, the regime may bind itself to the mast – even if not very tightly. To betray those promises by wantonly disregarding laws and bypassing legal institutions – or changing laws and restructuring legal organs too lightly, too often, or too self-servingly – is to undermine the credibility of regime commitments more generally, and, thus, to imperil the regime’s legitimacy (as well as its more tangible capacity). To the extent that an authoritarian regime’s promises about law tap into law’s power to legitimate, the delegitimating impact of betrayal of those legality-linked pledges can be all the greater.

Last but not least, legality can contribute to legitimacy by partly transforming political conflicts into legal ones. When a regime tolerates administrative litigation, or civil lawsuits to address regulatory failure, it avoids potential threats to the state’s authority by fragmenting discontents that might otherwise become foci for organized political challenges to the state’s right, or fitness, to rule and demands for political change. It also diverts those disputes into processes where outcomes disappointing to the discontented can be defended as legally legitimate – and thus made less threatening to regime legitimacy.

Constitutional law in authoritarian East Asia provides examples of law’s potential utility in protecting regime legitimacy by reducing politicization of potentially threatening discontent. As Weitseng Chen notes in his chapter, Taiwan’s Judicial Yuan helped defuse demands for democratic change during the authoritarian era by channeling challenges into protracted legal processes and issuing constitutional interpretations that upheld suspensions of democratic national elections as constitutional. In Hong Kong, the Basic Law-created roles for the Special Administrative Region Court of Final Appeal’s powers of final review, and, above it, the National People’s Congress Standing Committee’s quasi-judicial power of formal interpretation, show an attempt to “legalize,” and thereby defang, contentious political disputes. Beijing and its allies in Hong Kong portray rejection of calls for greater democracy not as reflecting political preferences or calculations by central authorities but, rather, as what a “proper” reading of the quasi-constitutional document dictates. Although not always successful, this approach seeks to sublimate pro-democracy or pro-autonomy popular politics into questions of legal–textual interpretation, which occurs through a process that Beijing has kept under its ultimate control and views in highly positivist terms.

This process presumably sought to reduce, and may have reduced, Occupy Central/Umbrella Movement-like mass actions that might otherwise have occurred. Campbell and Cullen’s analysis is consistent with this reading of law’s legitimating, stabilizing function. They find that political conflicts in post-reversion Hong Kong – centered primarily on constitutional issues – have been less disruptive than they were in the final years of colonial rule, and than many pundits had predicted for the post-1997 era, because the SAR had inherited a robust constitutionalism (of a Diceyan type) from British colonial rule. Davis is skeptical about the durability of this arrangement in a contemporary era of heightened conflict over, and social demand for, democracy in Hong Kong. Mobrand’s analysis of Korea is broadly similar. He argues that a legalistic ethos, with roots early in the authoritarian era and reflected in laws governing party and electoral politics, supported authoritarian legality in the political sphere that underpinned a distinctive claim to legitimacy by the regime.

In the clearly authoritarian context of reform-era China, something similar has at times been afoot. Administrative litigation against state entities, other aspects of administrative law promoting some degree of government accountability, brief flirtations with making individual constitutional rights justiciable, anti-corruption drives that rely partly on law, other uses of law to address officials’ abuse of citizens, and some tolerance for citizens’ extrajudicial invocation of legal norms to seek discretionary redress (such as “letters and visits” to government offices) are examples of how law’s (limited) legitimacy seemingly promises a means for the regime to enhance its (contested) legitimacy.Footnote ³¹

1.2.5 Responding to Demand

Authoritarian regimes may accept greater legality in response to pressure from below, or from within. Such accommodation may be necessary for regime survival, and, in the more ordinary course, for securing the cooperation and acquiescence that even nondemocratic rulers need from their societies and their subordinates or near-peers in the ruling elite. This “demand for legality” can come – and in authoritarian East Asia has come – from diverse sources.

Social pressure for greater legality has been a challenge for many of the developmentalist authoritarian states in East Asia, especially when economic success has come through international openness and market-oriented policies. Whether or not substantial rule by law, or rule of law, is necessary for economic development (or economic development above a certain level), greater wealth can, and often does, lead to pressure for greater legality.Footnote ³²

In much of authoritarian East Asia, economic development has produced large middle classes. They have property interests that they want to see protected, and typically seek greater autonomy and control over their lives. Domestic and foreign investors – important to the economy, but often politically vulnerable in authoritarian states – have similar aims and worries.Footnote ³³ Authoritarian regimes can address these concerns and demands through greater legality in the form of property law, contract law, environmental protection regulations, legal redress for expropriation or arbitrary behavior by state actors, relatively reliable courts, and so on.

Demands for greater legality also may come from economic “losers” in developing, economically rapidly changing, East Asian authoritarian states. Even in contemporary China, with its comparatively weak legal order, those who have not fared well during the reform era – peasants whose land is taken for development, poor urbanites whose houses are targeted for demolition and redevelopment, and victims of polluting factories, dangerous products, or abusive local officials – have turned to legal procedures or informally invoked legal norms to seek redress. In China, law may be the last resort of the desperate, or a slim hope for the otherwise hopeless, but it sometimes is seen as offering at least a weak weapon for the weak.

An analogous pattern can be found in more affluent East Asian societies. In Hong Kong and Taiwan, the legal norms set forth in constitutional documents took on normative force for the youthful protesters of the Umbrella and Sunflower movements, who saw threats to their economic futures and their political ideals, partly from authoritarian or authoritarianism-tinged politics. In Hong Kong, the Umbrella Movement, like many earlier political–economic protests, targeted the undemocratic Beijing and SAR governments. Although Taiwan is not authoritarian, Sunflower Movement protesters notably framed their actions as responses to resurgent authoritarian-style behavior by a government that tried to push a cross-Strait trade agreement through parliament. As Weitseng Chen argues, the Sunflower Movement fell within a tradition of activism by discontented students that dates to Taiwan’s authoritarian era.

More broadly, authoritarian regimes’ long-running endorsements of the rule of law and claims to operate rule-of-law government can raise social expectations about, and demands for, legality. In Hong Kong and Singapore, leaders and officials long have touted the rule of law as something that makes their polities special and successful. In reform-era China, massive campaigns to popularize legal knowledge and to proclaim a “socialist rule of law” system or a commitment to “ruling the country through law” (terms with uncertain meaning and incomplete implementation) have had effects on social expectations. Regime actions can encourage, reinforce, or tolerate legality’s normative pull in the societies they rule, and thereby increase social pressures to provide something more nearly approaching a rule of law. In China, frustrated efforts by individuals and social groups to deploy legal mechanisms promising government openness and accountability sometimes have provided new foundations, and capacity building, for those demanding more law-governed government.Footnote ³⁴

Legal elites can, and have, become sources of pressure for change that authoritarian regimes address through greater legality. In authoritarian East Asia, those educated in law and practicing law have become politically formidable critics of regimes and their excesses. They have done so, in part, due to regimes’ own actions. In Taiwan, Weitseng Chen argues, traditions established under the Japanese colonial regime of authoritarian legality and continued by the postwar KMT regime – and Confucian notions of the political role of intellectuals – led to lawyers and legal arguments looming large in student-centered political activism during the final decades of authoritarian rule. Reform-era PRC authorities long have proclaimed commitments to building the “rule of law” (albeit with Chinese socialist characteristics), which has created political space for legal elites to push a pro-legality agenda, in ways that range from quotidian pursuit of a legal environment consistent with their professional self-image, to high-profile moves by legal academics to trigger constitutional review of problematic legal rules, to calls for radical political change.

Many of contemporary China’s most prominent public intellectuals are lawyers and law professors who call for greater rule of law. Many of the most eminent and potent critics of the SAR government and central government policies in Hong Kong are lawyers, law professors, and law students. Turning points in the erosion of authoritarian rule in Taiwan and Korea were reactions against highly political uses of criminal justice against pro-democracy and pro-legality dissidents for incidents in Kaohsiung and Kwangju and, later, the eve-of-full-democratization student protests in Taipei that led to the repeal of two special laws from the martial law period. A leading lawyer for the Kaohsiung defendants (Chen Shui-bian) would become Taiwan’s first democratically elected president from the opposition Democratic Progressive Party, which had grown out of a movement opposing authoritarian rule. Sometimes, idiosyncratic and path-dependent features are significant. For example, Weitseng Chen argues, student activists and their scholar allies stressed legality, and law-focused means, partly because more purely political approaches had been claimed by the DPP.

Absent concessions to legal elite and broader public calls for greater legality, more fundamental challenges to authoritarian regimes may arise. Discontent might fester into demands, and social movements, for system-transforming reform. As authoritarian leadership groups across East Asia appear to have recognized (as far back as the Meiji constitution-makers, Ginsburg argues, and carrying through to China today), legality holds some promise of substituting for – and preempting – more fundamental democratic change.Footnote ³⁵ Many of the functions that make democracy appealing to publics and (sometimes) an effective form of governance might be performed by law, legal procedures, and legal institutions within an authoritarian political order. These include: holding wayward state actors to account (including through a somewhat independent judiciary), communicating popular views about failed or disliked government policies to ruling elites (including as expressed through law-governed mechanisms such as litigation and not-fully-democratic parliaments or elections), and implementing, through law, policies that align with preferences and interests of politically salient social groups. Perhaps partly reflecting such verities, or East Asian authoritarian rulers’ perception of them, cotemporary East Asian authoritarian states score higher on “rule of law” indices than on indices of democracy, and their rule of law scores are generally dragged down by weaker performances law’s democracy-related aspects.Footnote ³⁶

Movement toward legality may come from within the regime, including legal elites inside the state. In some East Asian authoritarian regimes, lawyers who staff state institutions – including courts – have been key proponents of greater legality, albeit with mixed results. Taiwan’s constitutional court played a key role in the transition to constitutional, democratic governance, including by requiring election of parliament by the Taiwanese public. Established under the U.S. Occupation-imposed democratic-regime-establishing constitution, Japan’s Supreme Court in its early days began issuing rulings that upheld constitutional rights associated with democratic governance, sometimes looking to international norms.

In Hong Kong, the Court of Final Appeal sought to expand judicial power in an early post-reversion case concerning the right of abode (wherein the CFA asserted authority to interpret national-level law), only to be rebuffed by central authorities in collaboration with the local government. Two decades later, preemption of SAR judicial proceedings – against the backdrop of broader concerns about the erosion of judicial autonomy – became a focal point in the controversy surrounding an NPC-Standing Committee Interpretation of the Basic Law that led to the ouster of two pro-autonomy legislators-elect.

Even in the PRC, courts sometimes have pushed to expand law’s empire. The Supreme People’s Court issued a short-lived decision (in the Qi Yuling case) approving direct judicial application of a constitutional provision on individual rights, and a provincial high court (in the Henan Seeds case) asserted powers akin to judicial review to treat as invalid local rules for nonconformity to higher law. More broadly, reformers within the Chinese judicial system, including presidents of the Supreme People’s Court, have sought to expand law’s ambit through greater insulation of judicial decision making from political intervention.

Judges have not been the only actors within the state favoring legality in authoritarian and transitional regimes in East Asia. Especially where Weberian rational authority – cast partly as legality – has grown within the state, officials and functionaries can, and do, become constituents for increased legality. Some perform distinctively legal work. Others understand their not-specifically-legal functions as structured – and facilitated – by law or law-like rules. Legality thus can become a habit or take on a high degree of normativity within the regime.

Many who staff the state in Hong Kong and Singapore have seen no insoluble contradiction between strong commitment to the rule of law and serving in an authoritarian government. Su presents an intriguing example of this phenomenon in authoritarian Taiwan’s law-governed elections, attributing the success of election law, and finding foundations for later law-governed democratic governance, in the habits instilled in state staff who performed such seemingly mundane tasks as operating polling stations and counting ballots. Mobrand offers a broadly analogous, but less benign, account of how the operation of laws and institutions regulating elections in pre-1987 Korea created expectations and habits of legality in the political sphere that persisted within the state and among political elites into the democratic era.

Authoritarian rulers’ choices about reforms may reflect their own subjective preferences for legality, apart from (and even contrary to) calculations of self-interest. It may be less common for rule of law, or pro-legality, norms to gain normative force with top leaders in an authoritarian regime than among the populace or state institutions. But, as Mark Tushnet has argued, it can – or at least could – happen as a feature of “authoritarian constitutionalism.”Footnote ³⁷ Tan’s and Chen’s accounts of Singapore depict a regime that is generally consistent with that paradigm.

Legality’s appeal to those at or near the apex of power in authoritarian regimes may also reflect law’s potential to preserve more tangible self-interest. Legal or law-like restraints on political contestation – factional conflict, succession struggles, appointment and advancement decisions, and the like – can be attractive to all but the most reckless and ambitious among authoritarian elites. A striking case may be reform-era China, where traumatic experiences of life-and-death conflicts for political power at many levels of the party-state during the Cultural Revolution cast a long shadow. Much of the impetus for the turn to law and the promises of enhanced legality may be reactions to the final decades of the Mao era. Xi’s constitutional amendment eliminating term limits has been so fraught partly because it seems to question that historical lesson. Less dramatically, some groups within an authoritarian ruling elite may gain, relative to their rivals in intra-elite competition, from greater legality, as Su finds in considering election law in Taiwan.

Finally, support or demand for greater legality may come from abroad. Rule-of-law ideals – instilled through education abroad, carried by transnational flows of ideas (including by the global NGOs that Kellogg examines), bequeathed by colonial rulers, or disseminated through other means – have taken root in authoritarian polities across East Asia.

Sometimes a system supporting a high level of legality can be imposed by a foreign power. Japan’s liberal and democratic postwar constitutional order was founded under an occupation regime after toppling authoritarian regime. The PRC-U.K. Joint Declaration made treaty-like commitments (implemented through the PRC-enacted Basic Law) to preserve and in some ways enhance (particularly in democracy-related and civil liberties-related areas) a legal order for Hong Kong that had been built by British colonial authorities and that was much more liberal and state-power constraining than Beijing allowed in the rest of China. The chronic controversies over interpretation and implementation of those promises is a testament to how important they are to both sides. Singapore has sustained a robust (if uneven) rule of law that was created by a now-departed colonial ruler that, like its successor, was an authoritarian regime.

Less direct foreign influence may push authoritarian regimes in the same direction. Pressure from Washington and perceptions of the need to shore up US support (especially as the Cold War waned) supported legal reforms for democratic elections in Taiwan and Korea. In the nineteenth century, Western powers’ preconditions for treating China and Japan as juridical equals helped drive Western-style domestic legal reforms in Japan and China. Nationalist, modernizing reformers in Meiji Japan and Qing China saw laws and related institutions based on Western models as vital to their quest for power (and even national survival) and wealth (now called development). Latter day echoes of these phenomena have persisted as reform-era China and, later, Vietnam adopted laws and supporting institutions attuned to global capitalist standards, and the expectations of foreign investors and trading partners, in pursuing economic development.

Accommodating impetuses – from society, elites, foreign sources, or ruler preferences – for more legality is not without risk or cost for authoritarian regimes. But it may be preferable to alternatives. Heeding middle-class calls to protect economic interests and personal autonomy, offering law-based relief to desperate or anxious citizens, giving those who have absorbed pro-legality values more of a place and a stake in the system, acceding to demands and preferences of pro-legality constituencies within the regime, or acquiescing in externally imposed or demanded legality need not pose an immediate or existential threat to authoritarian rule, and can mitigate other, possibly greater dangers to the regime.

Authoritarian rulers’ moves toward greater legality need not be (and in East Asia have not always been) so calculating. Powerful forces for legality can build gradually, sometimes encouraged by the regime’s tolerance for modest development of law or by an inherited rule-of-law legacy, sometimes emerging from the lived experience of social groups and elites inside or outside the regime. These phenomena may help explain why regimes make choices about legality that, often unwittingly, put authoritarian rule at risk, and why discerning the prospects for authoritarian legality is difficult.