Consultative Authoritarianism: The Drafting of China’s Internet Security Law and E-Commerce Law

Abstract

Through interviews and content analyses, this article conducted a comparative study of the drafting of China’s Internet Security Law (ISL) and E-Commerce Law (ECL). Although both had multiparty participants, they had very different substantive outcomes. Contrary to formalistic participation in the ISL, the ECL’s drafting involved considerable communication and negotiation. This difference was intended by the central party given its interests, and it was realized through its control over the scope, principle, direction and focus of the participation in the drafting, which is referred to as ‘leadership control’. This confirms the existence of consultative authoritarianism in China’s central lawmaking systems. The difference contributes to the theory by outlining indirect institutionalized control of the central party. This mode of control causes the authoritarian regime within the legal framework to occasionally be responsive and consultative, and at times fragmented, in realizing its interest in different situations. Such a polity still presents limits in terms of relieving contradictions in China. Power manipulation and attitudinal and fragmented problems can exaggerate such differences and result in the drafting of unreasonably polarized legislation. Interests and substantive power are essential for determining the limits and evolving directions of consultative authoritarianism. For further democratization, leadership control must be limited by the constitution and such limits must be afforded substantive power to become real and practical.