Series: Critical Legal Thinking on China
Critical theory borrows liberally from various anti-liberal thinkers , such as Karl Marx and Carl Schmitt, but what should critical legal scholarship on – and in – illiberal political regimes look like? This essay discusses the role of critical legal theory in the study of illiberal political regimes and the Chinese party-state, in particular. Its focus is on the US variant of critical legal theory, which is a relatively well known (although still far from prominent) reference point in Chinese legal scholarship.
The contributions from the American variant of critical legal theory to the study of illiberal regimes are fairly recent and tentative. In its heyday the CLS movement was committed to criticizing liberalism in the United States (and occasionally in other liberal democracies), rather than studying law in the USSR and elsewhere in the eastern bloc. A 30-page long bibliography on critical legal studies scholarship, published by Duncan Kennedy and Karl Klare in 1984, includes dozens of articles on American contract law, constitutional law and labour law, but only a handful of texts on Marxist legal theory and just two articles focusing specifically on illiberal regimes: an unsympathetic treatment of the military junta in Argentina and a short critique of the 1981 Polish martial law, translated from German.
The early CLS movement in the US comprised some critical law and development scholarship on developing countries, some of which were non-democratic. Illiberal legal systems, and even the PRC, also featured in CLS theory-building, such as Roberto Unger’s seminal Law in Modern Society. On the whole, however, illiberal legal systems were neither the focus of critique nor an object for praise in the early CLS movement.
Moreover, the CLS toolbox – the identification of dichotomies between rules and standards, altruism and egoism, apology and utopia and so forth – was intended to expose the inherent contradictions of liberalism specifically. No critical exposés were needed to reveal the bad faith of Soviet legal theorists who did not fetishize the law in the same way as the Americans did. Finally, the persuasive force of CLS may have owed something to the perception that the contradictions identified by the crits were culturally and ideologically limited rather than universal.
Despite their focus on the US, the mainstream critics of the CLS movement accused the crits of being uncomfortably close to totalitarianism, perhaps even serving as useful idiots in the cause of global communism. The logic of the argument was simple. Anybody who discredited liberalism necessarily credited its political opponents: Marxism-Leninism, Stalinism and Maoism. The crits felt that the accusation was both unjust and inane.
In retrospect it does seem absurd to associate the somewhat parochial American crits with a Moscow-run global conspiracy or even to characterize them as useful idiots. The battles and distinctions animating the early crits were typically within elite American legal academia (a handful of law and development scholars notwithstanding). Moreover, while the crits waxed nostalgic about the brotherhood of men, the movement had a strong irreverent and individualistic streak, which would not have played well in Moscow. For instance, in Law in Modern Society Unger asserted mockingly that the “revolutionary socialist consciousness [suffered] from schizophrenia.” Such colourful language would still cast Unger out from the academic mainstream in contemporary China.
Since the 1980s, American and European critical legal theory has expanded its horizons beyond the United States and other liberal democracies. As regards Chinese law, influential critical scholarship has been published on topics such as legal orientalism, American legal realists’ engagement with China, and the Chinese reception of European illiberal legal theory.
Nevertheless, the above-described origin story helps understand the relative lack of critical resources on illiberal regimes. This story also explains why illiberal regimes and the PRC, in particular, continue to pose a challenge to critical legal theory. What point is there to expose fictions about the rule of law in political regimes, which already denounce such fictions? At most, it would seem, critical theory can inform critiques of liberal scholars’ writings on illiberal legal thought. Added to these factors are more recent methodological doubts about intercultural understanding. As Günter Frankenberg has pointed out in his Comparative Law as Critique, critically minded Western comparative lawyers prefer “not to risk encounters with the [West’s] other” in order to avoid having to face embarrassing questions about their cognitive biases.
From Apologists to Utopians
In sum, the relationship between critical legal theory and the Chinese party-state is both remote and complicated. Yet it is also true that critical legal theory – in particular, its American variant – has a role to play in contemporary China. CCP ideologues have on rare occasions made use of American critical legal scholarship to legitimize the Chinese party-state. For instance, CLS is mentioned in passing in CCP textbooks on the socialist rule of law, where it supports the argument that law is inevitably political and (in a leap of faith) that the Party’s leadership of the judiciary is both natural and beneficial. CLS scholarship also lends supports to the Party ideologues’ assertion that American legal scholars are aware of the social and political nature of adjudication and that their efforts to export the rule of law abroad are, therefore, hypocritical.
It could be said that CLS provides aid and comfort to the Chinese party-state precisely in the same way as its American critics feared it would during the Cold War. At the same time, it must also be recognized that critical scholarship is a far more marginal reference point for CCP ideologues than American legal realism and legal pragmatism. The above-mentioned textbooks on the socialist rule of law principle, for instance, mention CLS together with legal realism, pragmatism and the law and society movement, without distinguishing between the arguments made in these research paradigms.
Indeed, some influential Chinese legal scholars, such as Zhu Suli of Peking University, have found Richard Posner’s pragmatism more useful for legitimizing the Chinese party-state than CLS scholarship. This is the case despite Posner’s own view that pragmatism is an ideology of and for liberalism. Zhu Suli has urged Chinese people’s courts’ judges to discard formal rules when this is pragmatically justified and to decide cases as they see fit. Zhu has also argued that local-level CCP cadres are repositories of socially and economically valuable contextual local knowledge, and that their good offices should be used in dispute resolution. From this perspective, the party-state facilitates the inclusion of pragmatically valuable knowledge better than the “liberal” rule of law model.
The Chinese party-state is supported, therefore, not only by the critiques of liberalism but also by legal pragmatism. Many other forms of supposedly liberal legal thought have been used to legitimize (or at least normalize) the Chinese party-state. CCP-approved Marxist textbooks, for instance, advocate Dworkin’s interpretivism just as effortlessly as they attest to the class-based nature of all law. Such texts also promote liberal sounding human rights principles, such as equality before the law, in abstract and politically harmless terms.
Some Chinese legal scholars have made use of critical theory for academically consequential projects in an effort to explain and remake Chinese legal thought. In China, such scholarship has been called neo-conservative, or “New Leftist,” because it draws on post-Marxist resources to criticize Western liberalism and the Chinese scholarly mainstream. Perhaps the most critsy of these scholars, the late Deng Zhenglai of Fudan University in Shanghai, shocked and annoyed his contemporaries in the early 2000s by depicting their views as emanating from an outdated modernization paradigm. In Deng’s view, Chinese legal scholars had unwittingly adopted a legalistic perception of law, which had had adverse consequences to Chinese society. Among other things, legalistic legal thought misdirected inquiries into doctrinal debates away from substantive policy questions. Critical theory has also inspired utopian strains of Chinese legal thought. Huang Zongzhi of Renmin University, for instance, has sought to describe Chinese law as a “substantive” and morally pragmatic system of justice, which stands in contrast to the supposedly more formalist liberal legal thought.
The Chinese New Left is broadly in tune with the country’s current leftist and nativist tendencies. In contemporary China it is obviously not a shocking critique to argue against liberal legal thought or even against the “one-sided” advocacy of legalism. Commentary on the newly rebranded “Xi Jinping thought on the rule of law” follows some of these critical themes, while also professing faith in legalistic values. However, while some Chinese neo-conservative scholars seem to believe that the role of critical theory is to justify the political status quo, it would be a mistake to conclude that all Chinese critical scholars are squarely within the country’s political mainstream. The Chinese crits’ efforts at theoretical innovation necessarily diverge from Party ideologues’ ideological speech. Such creativity is not without its risks in a political environment that increasingly stresses ideological conformity.
Form and Substance in Party Governance
Finally, it may be asked what critical legal scholarship on, rather than in, illiberal regimes should look like. However one seeks to brand such critique, there is clearly much space for critiques of illiberal legal thought which set out from non-liberal premises. Such critiques do not need to be confined to the critiques of “Western” or liberal writings on illiberal legal thought, but instead, they may address illiberal notions of power directly.
By way of example, the dichotomy between rules and standards in the CCP’s internal governance appears to be just as ripe for critical treatment as it is once was in American contract law. It turns out that the Party’s internal governance relies on the same notions about rule-based governance, which Party ideologues criticize in their writings on the formal legal system. Far from being averse to formal rules, CCP leaders govern their 90-million-member organization through a system of internal (“intraparty”) regulations. These regulations set up disciplinary standards and processes for Party members, and they establish hierarchies and jurisdictional boundaries between different Party organs. Many intraparty regulations can be characterized as substantive standards, but they also include a number of bright-line rules.
From a critical perspective it appears that intraparty regulations are both over- and under-inclusive. Over-inclusive rules impose too far-reaching restrictions on Party members’ conduct (banning coercive and deceptive investigation methods, for instance), whereas under-inclusive rules allow too much freedom for Party members. As is the case with liberal legal systems, CCP leaders and Party ideologues cannot conclusively settle on using either rules or standards in Party governance. To complicate the situation, the very purpose of a Marxist-Leninist political party is its ability to suspend formal legality – and, one assumes, its own rules – when political expediency requires this. Whenever Party leaders have settled on a bright-line rule for Party governance, there is a possibility that this rule will be suspended. Yet, it is also the Party leaders’ stated – and likely – objective to constrain CCP cadres’ uses of power through formal rules. Moreover, the decision-making processes within the Party – and, indeed, the “Party” itself – are at least partly constituted by its rules. Specific Marxist-Leninist doctrines, such as the principle of democratic centralism do not provide a way out of this dilemma. In each instance of literal rule application, the argument remains that a faithful (and fearless) Party cadre is merely enforcing the Party leaders’ will in accordance with the principle of democratic centralism.
Faced with such difficulties a true believer might argue that the Party is able to transcend rule-based governance through its historic role as a progressive social enterprise. A more critical conclusion would be that the Party’s governance project involves considerable uncertainty about what Party leadership actually means.
In conclusion, there are many opportunities for non-liberal critiques of illiberal legal and political thought. Critical scholars should not fear being stigmatized for engaging in such projects. After all, critiquing illiberalism does not (necessarily) mean that one is a liberal.
Suggested Further Reading
Zhenglai Deng (Lin Xi transl), Rethinking Chinese Jurisprudence and Exploring its Future: A Sociology of Knowledge Perspective (2014).
Richard Michael Fischl, “The Question That Killed Critical Legal Studies,” 17 Law & Social Inquiry 779 (1992) (book review).
Günter Frankenberg, Comparative Law as Critique (2016).
Günter Frankenberg, “Poland, Of Course, Is a Critical Case!,” 5,1 Telos 131 (Spring, 1982).
Eugene D. Genovese, “Critical Legal Studies as Radical Politics and World View,” 3 Yale J. L. & Hum. 131 (1991) (book review).
Huang Zongzhi, Zhongguo de xinxing zhengyi tixi: Shijian yu lilun [China’s new justice system: Practice and theory] (2020).
Jiang Shigong, Fazhi yu zhili: Guojia zhuanxing zhong de falü [Legal system and governance: Law in a transforming state] (Zhongguo Zhengfa daxue chubanshe 2003).
Jiang Shigong, Chengfa yu fazhi: Dangdai fazhi de xingqi 1976-1981 [Punishment and the rule of law: The rise of contemporary rule of law in 1976-1981] (Falü chubanshe 2009).
Duncan Kennedy & Karl E. Klare, ”A Bibliography of Critical Legal Studies,” 94 Yale L. J. 470 (1984).
Duncan Kennedy, “Form and Substance in Private Law Adjudication,” 89 Harv. L. Rev. 1685 (1976).
Jedidiah J. Kroncke, The Futility of Law and Development: China and the Dangers of Exporting American Law (2016).
Ryan Martínez Mitchell, “Chinese Receptions of Carl Schmitt Since 1929,” 8 Penn St. J.L. & Int’l Aff. 181 (2020).
Teemu Ruskola, Legal Orientalism: China, the United States, and Modern Law (2013).
Samuli Seppänen, Ideological Conflict and the Rule of Law in Contemporary China: Useful Paradoxes (2016).
Samuli Seppänen, Interrogating Illiberalism Through Chinese Communist Party Regulations, 52 Cornell Int’l L. J. 267 (2019).
Frederick Snyder, “State of Siege and Rule of Law in Argentina: The Politics and Rhetoric of Vindication,” 15 Law. Am. 503 (1984).
Roberto Unger, Law in Modern Society (1976).
Zhang Wenxian, Falixue [Jurisprudence] (5th edn 2018).
Suli Zhu, Sending Law to the Countryside: Research on China’s Basic-level Judicial System (2016).
Samuli Seppänen is Associate Professor, The Chinese University of Hong Kong
Two things: first, Chinese legal thought ChLT (?) is not “nomophilic” (in the sense of Douzinas) but pragmatic realist (in the sense of Ch S Peirce). Second, the basis of the legitimacy of the CCP lies in the doctrine of the “mandate of heaven” which is quite distant from the Western “divine right of kings”.