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1 - Authoritarian Legality in East Asia

What, Why, and Whither?

from Part I - Framework

Published online by Cambridge University Press:  14 July 2020

Weitseng Chen
National University of Singapore
Hualing Fu
The University of Hong Kong


Authoritarian legality is widespread, diverse, and enduring in East Asia. This chapter first addresses definitions of authoritarian legality in East Asia. Authoritarian legality falls between liberal rule of law and lawless autocracy. Cases include Hong Kong, Singapore, and more indisputably authoritarian polities in the region. Although exhibiting considerable variation, East Asian authoritarian regimes generally score relatively high in rule-of-law metrics and share several regionally distinctive legal–political characteristics.This chapter then turns to the paradox of why authoritarian rulers and regimes in East Asia would incur the risks and costs associated with increases in, or relatively high levels of, legality. It considers several functions that legality can perform for authoritarian rulers, and discusses examples from historical and contemporary East Asian cases: managing threats to order and security; fostering economic development; strengthening state capacity; legitimating authoritarian rule; and responding to demand for greater legality (from society and from elites, including within the regime).Finally, the chapter considers possible future trajectories for authoritarian legality in East Asia, again drawing on past and current examples: resilience and adaptation; transformation to democratic legality; regime political and legal decay; authoritarianism without legality; and lingering elements of authoritarian legality in a democratized polity.

Authoritarian Legality in Asia
Formation, Development and Transition
, pp. 17 - 58
Publisher: Cambridge University Press
Print publication year: 2020

1.1 What?

It seems easy to brush aside “authoritarian legality” as an oxymoron. But the experiences of many polities in East Asia (including Southeast Asia) and a substantial scholarly literature suggest otherwise. Although authoritarian legality is a complex, contested, and elusive concept, there are several points of relative consensus about its parameters.

Authoritarian legality falls between liberal rule of law (wherein: individuals and institutions wielding state or political power are subject to relatively fixed laws; laws meaningfully protect liberal and, perhaps, welfarist individual rights; and law has significant “market share” in regulating economic, social and political behavior), and lawless autocracy (wherein: political or governmental power is unconstrained by legal rules or institutions which – although sometimes exhibiting formal trappings of liberal legality – are hollow facades more than functioning organs; and law has little role in structuring behavior). At least in the contemporary context, authoritarian legality entails “legal modernity”: laws and legal institutions are relatively elaborate, comprehensive, and distinct from customary norms and non-state organizations.

Authoritarian legality is defined here principally as legality within an “authoritarian” political order.Footnote 1 Although the dividing line between authoritarian and democratic political orders is controversial, some distinctions seem relatively clear. Authoritarian political regimes sometimes partly resemble democratic ones: they have elections in which regime-favored candidates sometimes lose (albeit not in contests for positions wielding decisive, or meaningful, power), multiple political parties, and tolerance for some expression of heterodox political ideas. But they differ from democracies in that they lack one or more definitive features: key positions exercising governmental or political power are subject to election (or appointment by those who are themselves elected); elections are held fairly frequently, according to rules set in advance, and are not subject to easy, discretionary suspension; elections are – in the now-somewhat-hackneyed phrase – “free and fair”; candidates can campaign on platforms that challenge the policies and performance of the ruling group (although perhaps not fundamental constitutional or institutional structures); and candidates compete on level, or at least not heavily skewed, playing fields, and do not face retribution as members of the political opposition (nor do their supporters). Alternation of political parties in power is not required, but it is powerful evidence of a democratic system (and arguably indispensable for a consolidated one). At least in the contemporary context, democratic governance requires universal suffrage.

The cases addressed in this book lie on the authoritarian side of the dividing line. Many unquestionably belong in the authoritarian camp. Others are closer calls. Is Singapore’s system of partially competitive and law-governed elections, under conditions that limit political contestation and result in long-standing, one-party dominance, authoritarian? In their chapters, Kevin Tan and Jianlin Chen conclude that it is, but with caveats and cautions. Was Japan – by most reckonings democratic from the beginning of its postwar constitutional era – at the fringe of nondemocratic, vestigially authoritarian governance during the long era of Liberal Democratic Party hegemony? Although regularly classed as authoritarian, pre-1980s Taiwan and Korea, and contemporary Hong Kong include elements of democratic governance – relatively open and contested elections for posts with real, if limited, power (which Yen-Tu Su, in his chapter, sees as a law-governed feature of authoritarian rule in Taiwan, and which Michael Davis, in his chapter, considers a too-limited, and endangered, foundation for the rule of law in post-reversion Hong Kong) – that are absent in contemporary China or post-Taisho Japan.

Macro-comparative indexes’ ratings of regimes considered as examples of authoritarian legality in this volume generally align with the conclusions that almost all fall on the authoritarian side of a plausible line of demarcation and that there is considerable variation in their degrees of authoritarianism. In Polity’s rating of “regime characteristics,” Vietnam and China are “autocracies,” while Singapore is a “closed anocracy” (two levels below “democracy” in a five-category taxonomy).Footnote 2 According to the Economist Intelligence Unit’s Democracy Index, Singapore and Hong Kong are “flawed democracies” (above global medians, at 6.38 and 6.42 on a 10-point scale), while China and Vietnam are “authoritarian” (at 3.14 and 3.38).Footnote 3 On Freedom House’s Freedom in the World Index – which focuses on civil and political liberties but characterizes its 2017 findings in terms of “threats to global democracy,” China scores 15, Vietnam 20, Singapore 51, and Hong Kong 61 on a 100-point scale, placing China and Vietnam among the quarter of polities that are “not free” and Singapore and Hong Kong among the nearly one-third that are “partly free.”Footnote 4 Wherever a reasonable boundary between authoritarian and democratic rule may lie, authoritarian regimes show much variety in “hardness” of authoritarian rule, tolerance for democratic elements, and so on.

With the possible exception of strongly negative assessments of China and Vietnam, all contemporary cases – as well as almost all historical cases – considered in this book exhibit significant levels of legality. Singapore and Hong Kong maintain legality or a rule of law system – including courts with formal powers, occasionally used, of constitutional or quasi-constitutional review – that are high by global standards, notwithstanding significant shortcomings in law concerning political matters. They surpass other authoritarian polities in East Asia and fare well in global measures, ranking in the top five percent in the World Bank’s rule of law index, and ninth (Singapore) and sixteenth (Hong Kong) among 113 polities in the World Justice Project’s rule of law index.Footnote 5

Whether reform-era China has achieved a level of legality worthy of the name – and what level it has achieved – are subjects of disagreement.Footnote 6 In this book, Eva Pils, Thomas Kellogg, Michael Davis, and Hualing Fu and Michael Dowdle represent a significant swath of this spectrum of views. The extent to which Vietnam tracks, or surpasses, China is a salient inquiry, which Do Hai Ha and Pip Nicholson’s chapter addresses in part. In macro-comparative rule-of-law ratings, China and Vietnam receive middling scores, a little below the international median in the World Bank’s metric (46th percentile for Vietnam and 44th percentile for China) and somewhat lower (around the 40th percentile for Vietnam and 30th percentile for China) in the World Justice Project’s rankings. Although cross-time-period comparisons are problematic, it is plausible to assert that somewhere between these two pairs of cases would lie Meiji Japan, and Taiwan and Korea during periods leading up to their transformations into liberal, rule-of-law-governed democracies.

The cases of authoritarian legality examined in this book (and in East Asia generally) – range from regimes that came to power through communist revolutions and remain in place today to polities that have transitioned from authoritarian rule to consolidated liberal democracy. Some of the cases considered in this volume adapted legal regimes inherited from a departing – and from the perspective of the colonized – authoritarian colonial ruler. Other examples had no colonial legacy or broke sharply with it. The colonial (or occupying) powers have been diverse: Japan, the United Kingdom, France, and the United States. So, too, have been external models and sources of legal influence. Authoritarian legal regimes in the region include civil and common law systems.

Legality in East Asian authoritarian regimes varies not only across polities but also across dimensions of legality. China’s overall middling scores in comparative rule of law measures, for example, are composites of dismal ratings on “political” aspects of legality and higher ones on “economic” dimensions. In Davis’s assessment, Hong Kong may be headed toward a similar pattern. In an analysis that contributes to the growing literature considering China as a possible example of Fraenkel’s “dual state,” Fu and Dowdle find a large gap – and a fuzzy and wavering boundary – between a regime of legality for many nonpolitical matters, and an area of state prerogative or zone of exception where the party-state perceives threats to its power (including from official corruption, civil society activists, social media, rights protection lawyers, ethnic “separatists,” and unapproved religious groups).

Within the East Asian Model of development – broadly market-consistent and internationally engaged in its economics and, at least for the period of rapid development, authoritarian in its politics – the roles and importance of law for economic development vary across the major cases, ranging from Japan and Korea (relatively low) to Singapore and Hong Kong (very high).Footnote 7 The debate over the rule, and roles, of law in China includes contrasting views about law’s contribution to China’s economic development and whether low legality and rapid development can continue to coincide.Footnote 8

China’s project of constructing limited legality has reinvigorated distinctions between “thin,” largely proceduralist or positivist versions of the rule of law, and “thick” ones that include substantive commitments to specific, generally broadly liberal, rights and values.Footnote 9 East Asia’s remaining communist regimes raise questions of whether relatively positive evaluations of their levels of legality or optimistic projections concerning legal development without political transformation suggest that we need to take seriously non-liberal-democratic versions of the rule of law. Herein lies an authoritarian legality analogy – resonant with discourse about the rechstaat in hard-authoritarian polities and relevant across a diverse range of East Asian cases – to the much-discussed (and perhaps globally resurgent) phenomenon of illiberal democracy: although liberalism, democracy, and legality sometimes coincide, and some analysts make empirical claims about their causal relationships or normative claims about their collective desirability, it might – or might not – be possible to unbundle the trinity, at least for a long time, achieving authoritarian legality that could be colorably characterized as “authoritarian rule of law.”

Characteristics that differentiate low and high levels of legality (or liberal rule of law) or authoritarian and non-authoritarian (or democratic) regimes exist on continua, not as “yes/no” alternatives. Real-world cases are messy and ambiguous. An analytical framework of two variables – legality and authoritarian politics – suggests a scatterplot ranging across four quadrants. With an X-axis running from more authoritarian to more democratic politics, and a Y-axis from lower to higher levels of legality, cases of authoritarian legality fall in the northwest quadrant, lying more or less close the axes that define its boundaries. Contemporary Singapore and Hong Kong would be in the quadrant’s north-northeastern reaches (high legality and not strongly authoritarian politics). Pre-democratic-transition Taiwan and Korea would be farther to the west (more strongly authoritarian politics) and south (lower legality). Contemporary China and Vietnam would be still farther toward the south and west.

This book’s focus on East Asian cases makes analytical sense, for two seemingly conflicting reasons. First, the diversity among the cases – in time period, political ideology, wealth, scale, culture, history, legal family, level of legality, degree of authoritarianism, extent of international engagement, and much else – means that the examples considered here can provide general insights about authoritarian legality.

To return to the Cartesian quadrants, East Asia includes not only diverse cases of authoritarian legality (scattered about the northwest quadrant and the principal focus here). These cases are nested among regional experiences (addressed at various points in this volume) that also include democratic rule-of-law regimes (the northeast, including contemporary Taiwan, Korea, and Japan), authoritarian rule with very little legality (the southwest, including contemporary North Korea and late-Mao-era China). East Asia has not seen many polities that fall in the quadrant of relatively high (if illiberal) democracy and low legality (the southeast) although that pattern is relatively common in Latin America and may be emerging under Rodrigo Duterte in the Philippines (arguably the most “Latin America-like” state in East Asia).

Second, distinctive regional features make a focus on East Asian authoritarian legality coherent and potentially illuminating about regional politics and law more broadly. East Asian authoritarian regimes typically emphasize economic development. Authoritarian polities in East Asia generally have (adjusted for other factors, such as level of economic development) relatively strong and capable states. Authoritarian regimes in contemporary East Asia score high among authoritarian states on worldwide rule-of-law rubrics. Despite disparate overall rule-of-law rankings, East Asian authoritarian regimes generally do better on economic rule of law, order and security, criminal justice, civil justice, absence of corruption, and regulatory enforcement, than on open government, constraints on government powers, and protection for fundamental rights.Footnote 10

Legal transplants, borrowings, and transnational contagion effects that affect legality in states generally also do so for authoritarian regimes. In authoritarian East Asia, such phenomena are partly intraregional, or reflect common external sources, and thus bring some commonality to authoritarian legal orders in the region (despite the presence of both common law and civil law systems and influences). Much the same is true of contextual factors – including culture – that shape law.

A restriction on analytical scope also contributes to the collection’s coherence. Assessments of authoritarian legality can focus on “systemic” or “incremental” issues (with various cases or comparisons better suited for either type of inquiry). At the “systemic” level, the question of legality and the authoritarian state presents a “chicken and egg” problem. The state both creates and is a creature of law. For the authoritarian state, the paradox (and difficulty) of pursuing legality is most fundamental (and seemingly intractable) if one imagines (contrary to most real-world cases) a shift from virtually no law to seeking robust legality (or rapid replacement of a prior legal order).

The inquiry here is more circumscribed. It does not analyze cases of full-fledged revolution (such as China in the 1940s), or decolonization (such as Singapore from the late 1950s to the early 1960s), or foreign imposition of a new constitutional order (as in Japan after World War II). Even in those contexts, there is often much legal continuity, but there is much more continuity in the cases considered here. Moves to build legality under authoritarian rule, or less planned rises or declines in legality, that are the subjects of this chapter and this volume occur more at the margins – albeit sometimes very wide margins. The focus is on programs or trends that refashion, strengthen or expand laws and legal institutions (sometimes transformatively) or that preserve, and adapt, inherited laws and institutions, within the context of an already-existing state that was not previously devoid of laws and legal institutions. The cases examined here involve ongoing authoritarian legality, or transformation of legality in states transitioning from authoritarianism. In such contexts, choices about legality may pose less evidently profound dilemmas, but they are often more complex in process and effects than in cases of sudden regime replacement.

How to define and compare cases of authoritarian legality in East Asia, and how to assess the persistence of aspects of authoritarian legality after a transition to democracy, entail close analysis and scholarly judgment, which authors in this volume undertake. Such an exercise is largely a positive, analytical project. Analysts in this book and in the study of authoritarian legality more broadly, hold diverse normative positions. Some see liberal-democratic politics and liberal legality as clearly superior. Others hold different views or eschew judgment. But the assessments of authoritarian legality in East Asia in this collection do not depend on how much one celebrates or condemns the political systems and legal orders examined.

In this chapter, questions that cut across cases – one about aims and imperatives, and others about features and trajectory – are the principal foci. The first inquiry, which has been addressed in this section, concerns characteristics of authoritarian legality in East Asia. The project has not been to articulate, defend, or apply a particular definition of authoritarian legality, but to consider traits that place the cases within the boundaries of plausible meanings of authoritarian legality, while also addressing what makes these cases different from one another and more or less easily included within the category.

The second inquiry is why an authoritarian regime would seek, welcome, or tolerate significant legality. The question is hardly novel,Footnote 11 but an examination of motivations, functions, and causes – focusing on East Asia – is still apposite.

The evident paradox of an authoritarian regime creating or accepting legal rules, institutions, and expectations that can constrain its own power (or generate pressure for such constraints) extends to East Asian polities which present regionally distinctive, as well as diverse, experiences of authoritarian legality.

A third undertaking is to consider, in light of East Asian experiences, the prospective durability and possible trajectories of authoritarian legality, whether in polities that remain authoritarian or ones that transform into liberal democracies.

1.2 Why?

Why would an authoritarian regime (in East Asia) incur the risks and costs associated with substantial legality, or significant increases in legality? Empirically supported and generally plausible explanations can be grouped into five, largely “functionalist” or “instrumentalist” categories: managing threats to order and security; fostering economic development; enhancing state capacity; preserving or bolstering regime legitimacy; and responding to demands from segments of society or from within the regime. In some of the most strongly authoritarian regimes, instrumentalism in turning to law is so pervasive (and limiting of legality) that “legalized authoritarianism” may be a more appropriate descriptor than “authoritarian legality.”Footnote 12

Before undertaking a more detailed examination of these “whys” of authoritarian legality, a few points about context are in order. First, seeking to fulfill these “functions” is hardly unique to authoritarian regimes. In general form, these are concerns for any political regime that wishes to succeed, or even survive. These needs and challenges, however, manifest differently in authoritarian polities, including in East Asia. Other things being equal, authoritarian politics makes turning to law to perform these functions – and adopting and implementing laws that perform them effectively – more difficult. In part, this is due to the absence or weakness of the checks on the state’s (or political leaders’) transgressions of state- (or party-) limiting laws that come from democratic politics, independent judiciaries, vigorous and free media, and robust civil society organizations.

Second, there is a complicated relationship between description (the topic of Section 1.1) and functionalist analysis (the focus of this section) of authoritarian legality in East Asia. Concrete phenomena can serve multiple functions or purposes. Choices made for functionalist reasons may fall short or backfire. Authoritarian regimes’ moves to create or change law and legal institutions that may seem instrumentally useful may fail on their own terms or evolve into threats to authoritarian rule.

Third, the discussion that follows draws extensively on Chinese examples. This partly reflects the author’s relative expertise and the several China-focused chapters in this volume. It also reflects other considerations: China is an especially tough case (and, indeed, a fundamentally unique one, Fu and Dowdle argue), in part due to its strongly authoritarian political regime, comparatively weak and rapidly changing legal order, and thoroughgoingly instrumentalist approach to law; China is especially clearly grappling with – and ambivalent about – creating law and legal institutions that perform key functions that legality can serve for authoritarian regimes; contemporary China poses, in especially pointed form, questions about the trajectory of authoritarian legality; and China’s sheer scale makes it singularly important.

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.

1.3 Whither?

How sustainable is authoritarian legality in East Asia? The variations in authoritarian legality across countries, aspects of legality, and over time in East Asia suggest that several pathways are possible. The chapters in this book offer examples of, and arguments for, some of them.

First, authoritarian regimes with significant legality may prove durable and adaptable. Ginsburg points out that the authoritarian constitutional order established under the Meiji endured until the troubled democracy of the Taisho era, and did not fully disappear until World War II. Hong Kong and Singapore have impressive, longstanding, and ongoing track records of legality. Campbell and Cullen find in post-reversion Hong Kong remarkably resilient and effective constitutionalism and legality that had been established under authoritarian colonial rule (and thrived because they proved congruent with local society). In the British and SAR periods, they argue, the legal order withstood numerous political stresses, largely because Hong Kong had achieved a robust rule of law, fairly distributed prosperity, political stability, and a legitimate nondemocratic political order (and partly because, to many Hong Kongers, pro-democracy advocates seemed to endanger those accomplishments). Even for those who, like Davis, reject so sanguine an account, the durability of authoritarian legality through a tumultuous history and wrenching change of sovereignty is striking, as is the backhanded compliment paid to legality by the adherence to the legal forms of Basic Law interpretation by the NPC Standing Committee during heated controversies concerning democratic reform.

Tan argues that Singapore has achieved a hardy form of constitutionalism in the absence of (over-idealized) liberal democracy. Jianlin Chen discerns in the judicial invalidation of detention without trial and constitutional amendment to permit similar practices, an illustration of the regime’s commitment to constitutionalism along with maintaining authoritarian rule. In Chen’s account, it is significant that the regime followed lawful procedures of constitutional amendment and minimized harm to judicial independence and autonomy consistent with achieving the government’s goals. Weitseng Chen and Su find, in Taiwan’s legal history, a growing normativity of law within the authoritarian KMT order that appears to have helped sustain authoritarian legality, even as that same legal normativity laid foundations for democratic transformation.

On some readings, reform-era China’s legal development holds out the prospect of continuing authoritarianism with a level of legality that is significant, and perhaps ultimately rising, despite unevenness, limitations, and vulnerability.Footnote 38 As Fu and Dowdle see it, authoritarian legality and the authoritarian state are mutually reinforcing in China (and elsewhere). Vietnam – where efforts to increase legality, governance under law, and constitutionalism have not encountered some of the impediments and setbacks that have occurred in China, and where Confucian, colonial, and even Soviet traditions of authoritarian legality were less thoroughly repudiated – may offer a more hopeful variation on the same theme, as Ha and Nicholson’s account suggests.

Second, authoritarianism may transform, and be replaced by democratic governance coupled with impressive legality, including full-fledged liberal rule of law. That was the trajectory in Japan (punctuated by wartime defeat) and Taiwan and Korea (where the transition was less wrenching). Tan argues that Singapore is already close to the line separating authoritarian and liberal democratic rule, and that its electoral system and relatively modest restrictions on political speech and media leave open the possibility of an opposition party victory. Gradual and peaceful transition toward full-fledged democracy, with continuingly robust legality, remains a hope of advocates for political change, and a possibility suggested by optimistic analysts, in Singapore and Hong Kong.

Choices by authoritarian regimes can set a polity with a relatively high level of legality along this path. Su’s account of the regime’s implementation of authoritarian-era election laws in Taiwan is consistent with this paradigm. Growing fears in Beijing about pressure for political democratization in Hong Kong or, more remotely, the Chinese mainland if high levels of legality are maintained (Hong Kong) or created (the PRC) reflect a sense that such a trajectory is plausible. Authoritarian rulers and their regimes may be akin to frogs in boiling water, or prison escapees who have reached the edge of a cliff: had they appreciated the trajectory, they might have resisted the moves toward greater legality and political change that now spell mortal peril – whether they now recognize the danger or not.

The role of the constitutional court in advancing democratization in Taiwan, the transformational impact of the US-imposed constitution in postwar Japan, and the impetus for democracy that came from political prosecutions of dissidents after mass pro-democracy incidents in Taiwan and Korea, are disparate examples of how legal institutions and social movements can push systems of authoritarian legality toward liberal-democratic politics and legality. In a similar vein, Weitseng Chen argues that Taiwan’s tradition of law-centered student political activism contributed to constitutionalist, democratizing political change (without a loss of legality). Su and Mobrand argue that laws governing political parties and elections during the authoritarian eras in Taiwan and Korea framed transitions to democracy (with the law-on-the-books in Korea undergoing strikingly little change). In Mainland China and Hong Kong, politicians, public intellectuals, and activists drawn from the ranks of lawyers, or those who have made the rule of law a defining element on agendas for democratic reform, have been principal advocates for less authoritarian governance – albeit with limited success so far.

Each of the five functionalist promises of legality for authoritarian regimes contains a threat to those regimes and, in turn, an opening for movement toward liberal democracy and the rule of law. The tools law provides to maintain social order and suppress actual, potential, or imagined opponents can create martyrs and alienate broader publics who see such uses of law as cynically political or personally threatening. An authoritarian regime’s embrace of law for its own purposes can lead people to expect, and demand, more of the law, including greater fairness, restraints on state (or party) powers, and public input into laws’ content. Cross-national correlations among affluence, the rule of law, and democratic politics – and the trajectory of Korea and Taiwan and, more incipiently, Hong Kong, Singapore and, perhaps, China’s better-off urban areas – point to pressures for political change that may follow from a turn to legality in the successful pursuit of economic development.

Attempts to increase Weberian, or Leninist, discipline within the state or party-state to strengthen the sinews and the neural pathways of authoritarian rule can backfire. Moves in China to combat corruption and impose systems of “responsibility” for officials (including judges) – accelerating under Xi but with earlier roots – have spawned problems of state weakness: officials shirk duties to avoid “errors” that could devastate their lives and careers; or they cave in to the local public’s – or “the mob’s” – demands and preempt complaints to higher levels that could spell trouble for local officials; or they try to pass all decisions – and thus responsibility for “wrong” choices – up to higher levels. Amid such dysfunction, pressures for still-greater legal accountability and political change easily mount. Success in building a more law-governed and, thus, more capable state does not mean an authoritarian regime will not face formidable demands for deeper political reform. Now-democratic Taiwan and Korea, perhaps-increasingly-democratic Singapore, and now-pressed-to-democratize Hong Kong all once fared well as stable, law-governed authoritarian polities.

Efforts to tap law’s legitimating power risk making laws, legal institutions, legal elites, and law-oriented thinking more legitimate in a society under authoritarian rule, with attendant perils for the regime. This dynamic of legitimation is likely part of what lies behind the significant roles of courts, lawyers, legal intellectuals, and law-invoking citizens in achieving democratic change in East Asian states that have transitioned from authoritarianism, or that may be on the path to doing so. Jianlin Chen suggests that even measures that seem questionable from a constitutionalist or rule-of-law perspective (such as the Singapore government’s amending the constitution to overcome an adverse judicial ruling) can help to lay a rule-of-law foundation for more democratic rule. Kellogg argues that the PRC regime today may be losing legitimacy at home and abroad because of its repressive legal regime for NGOs, many of which have agendas that align with liberal legality. Pils’s account of contemporary China discerns a surprising persistence of liberal constitutional discourse in an increasingly hostile ideological environment under Xi, perhaps because of the regime’s earlier efforts to build up, and draw upon, law’s legitimacy. Ha and Nicholson discern a broadly similar pattern in Vietnam’s modest discourse on constitutionalism.

An authoritarian regime’s turn to law to address mounting demand for public participation in politics can empower civil society (to the regime’s chagrin, as Kellogg and Fu and Dowdle address) and create prototypes for polity-wide democracy (as illustrated by competitive elections for posts with limited power that Su examines in Taiwan). More broadly, an authoritarian regime’s use of law to address pressure for public input or accountability can raise legal competencies, commitments to legality, and expectations of legality in society, among legal elites, and within the regime that create constituencies for more robust rule of law and democratic political change. Kellogg’s account of NGO law provides a glimpse into such phenomena, and regime worries, in China.

Third, an authoritarian political order can decay, taking whatever legal order – usually a limited and fragile one – down with it. This is one possible outcome when the double-edged sword that legality presents to authoritarian regimes cuts sharply against those who wield it to try to preserve themselves. Or any number of perils – many having little connection to law – from within or abroad may lead to political disorder and systemic failure in an authoritarian regime. China in the decades preceding the foundation of the People’s Republic, and Cambodia during its most troubled post-Indochina War period, are stark examples of what can happen to politics and law amid degeneration of an authoritarian regime. In the more hyperbolic accounts of pro-regime critics, the Umbrella Movement in Hong Kong (as Davis discusses) and the Sunflower Movement in Taiwan raised the prospect that groups calling for greater democracy, and criticizing perceived erosions of legality, would undermine law and political order in one polity that was undemocratic and another that was a recently consolidated, post-authoritarian democracy.Footnote 39

Fourth, authoritarian rule may persist while legality wilts (or fails to bloom) in inhospitable environments of illiberal, undemocratic politics. In Hong Kong, as Davis notes, worries abound that the rule of law may be declining. Economic integration with the Mainland and its less rule-of-law-oriented business order, and repeated rejection of aspirations for democratic political progress (by Basic Law interpretations, among other means) are, to Hong Kong critics (many of them pro-democracy lawyers, lawyer-politicians, law professors, and law students), signs of a future that will remain politically authoritarian but become less law-governed.

Concerns about, and critiques of, limits to the rule of law, or rule by law, in China have been constant refrains throughout the reform era.Footnote 40 Recent developments – particularly under Xi – have made more vivid and pressing the specter of persisting or resurgent authoritarianism with crabbed or declining legality. Examples include: enacting an expansive national security law giving state authorities extensive power and discretion; imposing more strict and potentially arbitrary legal limits on foreign and domestic NGOs; cracking down severely on rights protection lawyers; restricting law-centered mechanisms (including collective litigation) to pursue society-driven changes; charging political activists with “pocket offenses” (for minor, vaguely defined disruptive activities); relying heavily on extralegal procedures by party or hybrid party-state supervision organs to address official corruption; increasing traditional and social media censorship (as Fu and Dowdle describe); marginalizing tizhnei (“inside the system”) legal reformers and intellectuals; fostering (albeit not by design) a sense that the legal system will tolerate indefinitely an economic playing field tilted in favor of state-linked and well-connected firms; reemphasizing “stability maintenance” and “social management” over legal rights and procedures; adopting martial law-like, human rights-violating responses to ethnic unrest (or potential unrest); and eliminating presidential term limits.

Authoritarian legality faces the compound problems of ambivalent regime commitments to pursuing an inherently difficult task. It may prove untenable for the autocrat to tie his own hands with legal restraints, and this may place beyond reach the order-preserving, state capacity-supporting, economic development-promoting, and legitimacy-building contributions that law and legal institutions can, in principle, offer. For Singapore, Jianlin Chen cautions against unrealistically idealistic expectations about the role an authoritarian government will cede to courts in politically sensitive matters, and argues that premature or overreaching efforts by courts to resolve political matters can bring destructive blowback from an authoritarian regime. For Hong Kong, Davis argues that the preexisting rule of law regime and Beijing’s promises in the Basic Law and Joint Declaration may not survive post-reversion erosion. In Vietnam, Ha and Nicholson find, continuing party dominance has fundamentally compromised efforts at constitutionalism. As recent PRC experiences with courts that bow to public pressure in high-profile criminal (and even civil) cases appear to show, steering political disputes or politically fraught issues to courts may yield not more legitimate outcomes but more delegitimized courts.

In China, and other authoritarian polities in East Asia, a regime’s narrowly instrumentalist legalism may be doomed from the start, or too thin to survive the resulting stresses, when law appears to falter in fulfilling expected roles in advancing regime goals.Footnote 41 For Fu and Dowdle, “zones of exception” that place essential – often political – matters beyond law’s reach, reliance on alternative institutions that deprive legal institutions of their jurisdiction, subordination of legal institutions to political rule, and a debilitating gap between the law on the books and law in practice are not bugs, but features, of legality under authoritarian rule – ones inconsistent with all but the thinnest form of legality. Pils points to the waning of a somewhat legal-liberal and rationalist conception of law relative to a “rule by fear” technique that subdues not only its immediate targets but also others who might criticize, or seek to change, the regime. In these conditions, law may be a weapon wielded by the regime, but it lacks the autonomy and distinctiveness needed for rule by law and, in turn, conditions for legality to provide the support that it might offer an authoritarian regime.

Alternatively, legality may not prove necessary, or even very useful, for authoritarian rulers. This might be true for any of authoritarian legality’s five functional virtues. The use of show trials by totalitarian or nearly lawless regimes (arguably exemplified by China through the dawn of the post-Mao era) to destroy and deter political opposition shows that legal forms can advance regime ends without accepting even the limited constraints of weak forms of authoritarian legality.Footnote 42 Sometimes, even thin pretenses of legality are eschewed when suppressing dissent and maintaining order. Analyses of reform-era China’s remarkable economic progress under authoritarian rule that conclude that law has made little contribution, and that weak legality facilitated development, reject strong links between law and development. On many accounts, other exemplars of the East Asian Model relied much less heavily on the rule of law for the economy than did Hong Kong and Singapore.Footnote 43

Leninist regimes, and perhaps softer authoritarian regimes as well, may be able to rely on nonlegal means to discipline state actors and strengthen state capacity. That appears to be an expectation inherent in Chinese Communist Party drives against corruption, including the aggressive one launched under Xi, with criminal law and courts playing marginal roles in a process dominated by intra-party or merged party-state disciplinary bodies.Footnote 44 A kindred expectation may underlie the Chinese regime’s apparent preference for informal and nonjudicial mechanisms: seeking expert input, receiving ad hoc citizen complaints, tolerating (limited) muckraking journalism, and combining selective severe punishment (especially of leaders) with side-payments and cooptation of mass protestors or incipient social movements.

Law may not be indispensable, or very important, for legitimation for some authoritarian regimes. Observers have noted a “turn against” law in China in recent years that implies a belief that legality is not necessary for legitimacy and may be corrosive of legitimacy.Footnote 45 Economic performance-based legitimacy has had an impressive run in reform-era China and economically more advanced authoritarian polities in East Asia. Nationalism – particularly in the form of authoritarian regimes portraying themselves as guarantors of success or survival in a challenging or hostile world – has offered an alternative, non-law-related basis for legitimacy to some East Asian authoritarian regimes. Other alternatives to partly law-based legitimacy can be found in varied East Asian authoritarian cases: Singapore’s model of government by meritocratic technocrats and chilliness toward Western-style litigious and individualist conceptions of rights; China’s embrace – especially under Xi – of a muscular foreign policy that challenges the existing international order and a domestic governance model that rejects Western legal and political values; and the besieged nationalism, with extremely low legality, of North Korea. As Pils details, Xi’s China has returned to identifying and targeting “enemies” – stressing reasons to fear them and the need to defeat them – to legitimize authoritarian powers and justify harsh measures that do not differentiate clearly between legal and extralegal means.

Social demand for liberal-democratic and rule-of-law governance may prove fragile or manageable. Although Hong Kong has had mounting troubles in law and politics, Singapore remains stable, maintaining legitimacy amid relatively modest pressure for political reform (as Tan and Jianlin Chen address). Surveys of East Asian states that have transitioned to democracy (including Japan, Korea, and Taiwan) show low trust in government officials (19–39 percent), middling satisfaction with how democracy works (56–68 percent), and weak agreement that democracy is always preferable to other forms of government (46–65 percent).Footnote 46 At East Asia’s southern fringe, Duterte’s Philippines suggests the vulnerability of commitments to liberal legality and the potential appeal of a populist leadership style reminiscent of past authoritarian rule – a pattern familiar from Eastern and Central European states. Ostensibly populist politics and democratic disillusionment in the United States and Western Europe point to possibly analogous trends in states that have been models – in both the political–aspirational and scholarly–analytical sense of the term – for reformists in East Asian authoritarian states.

Fifth, traces of authoritarianism may endure in a legal order even after a democratic transition. Courts, other legal institutions, and legal doctrines may maintain authoritarian mindsets and approaches after the political regimes that shaped them have transformed. In important respects, legal change may lag political change. Such tendencies are not ubiquitous or pervasive, as is illustrated by assertive, pro-liberal-rights stances of judicial decisions in post-reversion Hong Kong, and democracy-promoting and liberal-rights-protecting judicial interpretations by Taiwan’s constitutional court. But they are important phenomena, possibly manifested in the deference and protection courts in post-authoritarian East Asian states sometimes accord to state power and discretion. Nakano and Mobrand argue that aspects of authoritarian legality linger in contemporary Japan and Korea. Nakano finds a “bureaucratic authoritarian legality” rooted in the prewar order and persisting – thanks to continuities in institutions, personnel, and political habits – until administrative-legal reforms of the 1990s, and – more controversially – a “neoliberal authoritarian legality” that blunts political democracy today. Mobrand describes Korea as retaining “authoritarian legality after authoritarianism” in laws on elections and political parties that have remained largely unchanged despite democratization in the late 1980s. A broadly similar but more limited argument might hold for Taiwan, where the constitutional court has been restrained in striking down decisions by the political branches, even when it has found state actions constitutionally troubling (e.g. when ruling on the issue of one person simultaneously serving as vice president and premier).

That post-authoritarian legality should remain, to some degree, residually authoritarian should not be surprising. Courts and other legal institutions often avoid direct subjection to the wrenching changes that affect the organs of the state that are more often the immediate targets of demands for political change. Also, law and legal institutions are, in important respects, conservative institutions for which radical change is not the norm – a trait that is part of what makes legality appealing to authoritarians (as well as to some proponents of the rule of law).

Other logical possibilities exist, but the patterns described here have solid grounding in East Asian experiences. Past and possible future trajectories suggest that “authoritarian legality” remains tenable in some forms and under some conditions in East Asia. But authoritarian regimes’ likely ambivalence toward legality, the difficulty of achieving and sustaining authoritarian legality, pressures exerted by economic and social change, and demands from social and political forces, present serious challenges. Authoritarian legality’s viability also surely varies by national and historical circumstances and the version of authoritarian legality that an East Asian regime pursues or achieves.


1 Elements of authoritarian legality can persist after a democratic transition, as several contributors to this volume address. As recent experiences in Western liberal democracies show, legal systems in nonauthoritarian polities can adopt illiberal elements that resemble features of authoritarian regimes.

3 Economist Intelligent Unit’s Democracy Index,

4 Freedom House, Freedom in the World 2017,

5 World Bank, World Governance Indicators 2015,; World Justice Project, Rule of Law Index 2016,

6 Compare, for example, Randall Peerenboom, China’s Long March toward the Rule of Law (Cambridge, UK: Cambridge University Press, 2002); Carl F. Minzner, “China’s Turn against Law,” American Journal of Comparative Law 59(4) (2011): 935; Stanley B. LubmanLooking for Law in China,” Columbia Journal of Asia Law 20(1) (2006): 1; Albert H. Y. Chen, “China’s Long March towards Rule of Law or China’s Turn against Law?,” Chinese Journal of Comparative Law 4 (2016): 1; Jacques deLisle, “China’s Legal System,” in William A. Joseph (ed.), Politics in China (2nd ed., New York: Oxford University Press, 2014), 224–53.

7 Jacques deLisle, “Development without Democratization? China, Law and the East Asian Model,” in Jose V. Ciprut (ed.), Democratizations (Cambridge, MA: MIT Press, 2008), ch. 9.

8 Jacques deLisle, “Law and the China Development Model,” in S. Philip Hsu, Suisheng Zhao, and Yu-Shan Wu (eds.), In Search of China’s Development Model: Beyond the Beijing Consensus (Abingdon, UK: Routledge, 2011), 147–63; Donald C. Clarke, “Economic Development and the Rights Hypothesis: The China Problem,” American Journal of Comparative Law 51(1) (2003): 89; Frank Upham, “From Demsetz to Deng,” NYU Journal of International Law and Politics 41 (2009): 551.

9 See, for example, Peerenboom, China’s Long March, 65–75; Fu and Dowdle, Chapter 2 in this volume.

10 See World Justice Project’s Rule of Law Index (2016). The World Bank’s Global Governance Indicators (2015) tell much the same story when its “rule of law” indicator is disaggregated into component metrics. Vietnam is a partial outlier, scoring near its overall rank on fundamental rights and corruption, and below its overall median on regulatory enforcement and civil justice in the World Justice Project assessment.

11 There is a large literature on the issue, and many traits and functions discussed therein are similar to categories used in Section 1.2. Examples include:  Tom Ginsburg and Tamir Moustafa (eds.), Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge, UK: Cambridge University Press, 2008) (esp. ch. 1, identifying functions of courts in authoritarian regimes: establishing social control and sidelining political opponents; bolstering a regime’s claim to “legal” legitimacy strengthening administrative compliance within the state and coordinating among competing factions; facilitating trade and investment; and implementing controversial policies in ways that allow political distance from the regime’s leadership); Mark Tushnet, “Authoritarian Constitutionalism,” Cornell Law Review 100 (2014): 391461 (“authoritarian constitutionalism” appeals to authoritarian rulers because of rulers’ “modest normative commitment” to constitutionalism, and instrumental benefits of constitutionalism); Tom Ginsburg and Antonio Simpser, “Introduction: Constitutions in Authoritarian Regimes,” in Ginsburg and Simpser (eds.), Constitutions in Authoritarian Regimes (Cambridge, UK: Cambridge University Press, 2013), 1–20 (constitutions in authoritarian systems facilitate coordination within the ruling elite, signal foreign and domestic observers, and give guidance to officials and subjects concerning permissible and required actions); Peter H. Solomon, “Authoritarian Legality and Informal Practices: Judges, Lawyers and the State in Russia and China,” Communist and Post-Communist Studies 43(4) (2010): 351–62 (authoritarian states adopt formal legal institutions to meet foreign actors’ demands while relying on informal practices to control administration of justice and avoid threats to regime’s control of public life); Jacques deLisle, “Chasing the God of Wealth While Evading the Goddess of Democracy: Development, Democracy, and Law in Reform-Era China,” in Sunder Ramaswamy and Jeffrey W. Casson (eds.), Development and Democracy (Lebanon, NH: University Press of New England, 2003), 252–93 (China turned to law to support economic development, limit state predation, and avoid pressures for democratic change); Jothie Rajah, Authoritarian Rule of Law: Legislation, Discourse, and Legitimacy in Singapore (Cambridge, UK: Cambridge University Press, 2012) (authoritarian regime’s use of liberal rule-of-law forms to embody illiberal content, limit dissent, increase state’s power and discretion, and secure domestic and international legitimacy); Chien-Chih Lin, “Constitutions and Courts in Chinese Authoritarian Regimes: China and Pre-Democratic Taiwan in Comparison,” International Journal of Constitutional Law 41(2) (2016): 351–77 (Taiwan’s authoritarian regime preserved unaltered constitution and allowed limited constitutional judicial review to legitimize claim to be sole government of China).

12 I am indebted to Hualing Fu for the insightful phrase “legalized authoritarianism.” On the highly instrumental approach to law in contemporary China, see, Jacques deLisle, “Traps, Gaps and Law: Prospects and Challenges for China’s Reforms,” in Randall Peerenboom (ed.), Is China Trapped in Transition? Implications for Future Reforms (Oxford: Oxford Foundation for Law, Justice and Society, 2007); Jacques deLisle, “The Rule of Law with Xi-Era Characteristics,” Asia Policy 20 (2015): 23.

13 See, generally, Sarah Biddulph, The Stability Imperative: Human Rights and Law in China (Oakland, CA: University of California Press, 2015); Susan Trevaskes et al. (eds.), The Politics of Law and Stability in China (Cheltenham, UK: Edward Elgar, 2014); Ronald C. Keith and Zhiqiu Lin, “The ‘Falun Gong Problem’: Politics and the Struggle for the Rule of Law in China,” China Quarterly 175 (2003): 623.

14 On “aversive” constitutionalism responding to past horrors, see Kim Lane Scheppele, “Aspirational and Aversive Constitutionalism,” International Journal of Constitutional Law 1(2) (2003): 296324. On the turn against recent anti-legalist experiences toward constitutional discourse from earlier eras (a pattern in Eastern European post-socialist states and East Asian reformist socialist states), see Bui Ngoc Son, “Restoration Constitutionalism and Socialist Asia,” Loyola of Los Angeles International and Comparative Law Review 37 (2015): 67116.

15 See, generally, Frank K. Upham, Law and Social Change in Postwar Japan (Cambridge, MA: Harvard University Press, 1987); Jing-Huey Shao, “State Power in Disguise – Addressing Catastrophic Mass Torts in the United States, China, and Taiwan,” Tulane Journal of International and Comparative Law 24(1) (2015): 175204; Jacques deLisle, “Law and the Economy in China,” in Gregory C. Chow and Dwight H. Perkins (eds.), Routledge Handbook of the Chinese Economy (Abingdon, UK: Routledge, 2015), 264.

16 See Hurst Hannum, Autonomy, Sovereignty and Self-Determination (Philadelphia: University of Pennsylvania Press, 1990); Crawford Young, The Politics of Cultural Pluralism (Madison: University of Wisconsin Press, 1977), 6697; Roberto M. Unger, Law in Modern Society (New York: Free Press, 1976), 6676.

17 Ginsburg’s analysis of the roles of constitutional courts, judicial review – and, by implication, legality – in Asian states that transitioned to democracy is consistent with this phenomenon. See Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge, UK: Cambridge University Press, 2003).

18 See, generally, Chalmers Johnson, MITI and the Japanese Miracle (Palo Alto, CA: Stanford University Press, 1982); Stephan Haggard, Pathways from the Periphery (New York: Cornell University Press, 1990); Meredith Woo-Cumings (ed.), The Developmental State (New York: Cornell University Press, 1999); Atul Kohli, State-Directed Development (Cambridge, UK: Cambridge University Press, 2004); S. Philip Hsu, Suisheng Zhao, and Yu-Shan Wu (eds.), In Search of China’s Development Model: Beyond the Beijing Consensus (Abingdon, UK: Routledge, 2011).

19 See David Trubek and Mark Galanter, “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States,” Wisconsin Law Review 4 (1974): 1062; Kevin Davis and Michael Trebilcock, “The Relationship between Law and Development: Optimists vs. Skeptics,” American Journal of Comparative Law 56 (2008): 895; deLisle, “Development without Democratization?”; John Williamson, “What Washington Means by Policy Reform,” in John Williamson (ed.), Latin American Readjustment: How Much Has Happened? (Washington, DC: Institute for International Economics, 1989); John Williamson, “What Should the World Bank Think about the Washington Consensus?,” World Bank Research Observer 15(2) (2000): 251; Daniel Kaufmann and Aart Kraay, “World Bank Worldwide Governance Indicators,” World Bank,

20 Fu and Dowdle argue that in authoritarian legal regimes generally, and China in particular, law serves to enhance, not check, state power – in contrast to law’s performing both functions in democratic states.

21 See generally Brian Christopher Jones (ed.), Law and Politics of the Taiwan Sunflower and Hong Kong Umbrella Movements (Abingdon, UK: Routledge, 2017); Jacques deLisle and Kevin P. Lane, “Hong Kong’s Endgame and the Rule of Law,” University of Pennsylvania Journal of International Law 18 (1997): 195264, 8111047.

22 Victor V. Ramraj and Arun K. Thiruvengadam (eds.), Emergency Powers in Asia (Cambridge, UK: Cambridge University Press, 2009); compare Kim Lane Scheppele, “Exceptions that Prove the Rule: Embedding Emergency Government in Everyday Constitutional Life,” in Jeffrey Tulis and Stephen Macedo (eds.), The Limits of Constitutional Democracy (Princeton, NJ: Princeton University Press, 2010), 129–30 (law as “the way the state talks to itself”); Bruce Ackerman, “The Emergency Constitution,” Yale Law Journal 113(5) (2004): 1029–91.

23 See Max Weber, “Bureaucracy,” in Guenther Roth and Claus Wittich (eds.), Economy and Society (Berkeley: University of California Press, 1978), 9561005.

24 See, generally, Philip Selznick, Leadership in Administration: A Sociological Interpretation (New York: Harper & Row, 1957) (contrasting durable, “value-infused” institutions with expendable, instrumental organizations); Philip Selznick, The Organizational Weapon (New York: McGraw-Hill, 1952) (analyzing disciplined, mobilizational features of communist organizations). On contemporary China, see deLisle, “Rule of Law with Xi-Era Characteristics.”

25 See deLisle, “China’s Legal System,” 233–41; Neil J. Diamant, Stanley B. Lubman, and Kevin J. O’Brien (eds.), Engaging the Law in China (Palo Alto, CA: Stanford University Press, 2005) (esp. chs. 24); Carl F. Minzner, “Xinfang: An Alternative to Formal Chinese Legal Institutions,” Stanford Journal of International Law 42 (2006): 103–79.

26 For an argument that China’s WTO accession imposed requirements for significant legal change – and implied more fundamental political–legal transformation to satisfy those requirements – see Pitman B. Potter, “The Legal Implications of China’s Accession to the WTO,” China Quarterly 167 (2001): 592.

27 Jacques deLisle, “Security First?: Patterns and Lessons from China’s Use of Law To Address National Security Threats,” Journal of National Security Law and Policy 4 (2010): 397.

28 Max Weber, “The Three Types of Legitimate Rule,” Berkeley Publications in Society and Institutions 4(1) (1958): 111; Politics as a Vocation,” in Hans Gerth and C. Wright Mills (eds.), From Max Weber (New York: Oxford University Press, 1947), 77128.

29 Walter Bagehot, The English Constitution (London: Chapman & Hall, 1867).

30 See Ramraj and Thiruvengadam, Emergency Powers in Asia; Carl Schmitt, Four Articles: 1931–1938, trans. Simona Draghici (Washington, DC: Plutarch Press, 1999); David Dyzenhaus, The Compulsion of Legality (Oxford: Blackwell, 2008). Pils discusses a Schmittian turn in the Chinese regime’s view of law (see Chapter 3 in this volume).

31 See generally, Jacques deLisle, “Legalization without Democratization in China under Hu Jintao,” in Cheng Li (ed.), China’s Changing Political Landscape (Washington, DC: Brookings, 2008), 185211.

32 On contemporary China as an example, see Jacques deLisle, “Law and Democracy in China: A Complicated Relationship,” in Shelley Rigger, Lynn White, and Kate Zhou (eds.), Democratization in China, Korea and Southeast Asia (Abingdon, UK: Routledge, 2014), 126–40; on the correlation between rule of law and economic development in East Asia, see Randall Peerenboom, China Modernizes (Oxford: Oxford University Press, 2007), 3377.

33 For this argument concerning China, see Yuhua Wang, Tying the Autocrat’s Hands: The Rise of the Rule of Law in China (New York: Cambridge University Press, 2015).

34 See, for example, Greg Distelhorst, “The Power of Empty Promises: Quasi-Democratic Institutions and Activism in China,” Comparative Political Studies 50(4) (2017): 464–98.

35 See generally, deLisle, “Law and Democracy in China.”

36 Kaufmann and Kray, World Bank Worldwide Governance Indicators; Peerenboom, China Modernizes, 26–81.

37 Tushnet, “Authoritarian Constitutionalism.”

38 See, generally, Peerenboom, China Modernizes, esp. 257–81; Peerenboom, China’s Long March; deLisle, “Law and Democracy in China.”

39 See Jones (ed.), Law and Politics.

40 See, for example, Minxin Pei, China’s Trapped Transition (Cambridge, MA: Harvard University Press, 2006), 6672; Yuanyuan ShenConceptions and Receptions of Legality,” in Karen G. Turner, James V. Feinerman, and R. Kent Guy (eds.), The Limits of the Rule of Law in China (Seattle: University of Washington Press, 2000), 2044; Jiangyu Wang, “The Rule of Law in China,” Singapore Journal of Legal Studies (2004): 347–89.

41 deLisle, “Rule of Law with Xi-Era Characteristics”; Benjamin L. Liebman, “China’s Law and Stability Paradox,” in Jacques deLisle and Avery Goldstein (eds.), China’s Challenges (Philadelphia: University of Pennsylvania Press, 2014), 157–77.

42 See Judith N. Shklar, Legalism: Law, Morals and Political Trials (Cambridge, MA: Harvard University Press, 1986), 164, 209–19; A Great Trial in Chinese History (Beijing: New World Press, 1981) (trial of the “Lin Biao Clique” and the Gang of Four at the dawn of China’s reform era, melding elements of communist “show trials” and incipient claims to positivist legality in criminal law).

43 See, Clarke, “Economic Development and the Rights Hypothesis”; Upham, “From Demsetz to Deng”; Katharina Pistor and Philip A. Wellons, The Role of Law and Legal Institutions in Asian Economic Development, 1960–1995 (New York: Oxford University Press, 1999); Tom Ginsburg, “Does Law Matter for Economic Development? Evidence from East Asia,” Law and Society Review 34(3) (2000): 829–56.

44 Jacques deLisle, “Xi Jinping’s Impact on China’s Legal Development,” Asan Forum 4(5) (2016).

45 Minzner, “China’s Turn against Law”; Benjamin L. Liebman, “Legal Reform: China’s Law–Stability Paradox,” Daedalus 143(2) (2014): 96109.

46 Asian Barometer Survey (third wave), Data for the Philippines is similar, generally at the lower end, except for a higher (51 percent) level of trust in government officials.

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