The limits of liberal justice: on authoritarianism and instrumental theories of law

Abstract

ABSTRACT In this essay, I use Professor Sucheng Wang's recent book Law as an Instrument: Sources of Chinese Law for Authoritarian Legality as a point of departure for reconsidering the conventional opposition between liberal and authoritarian forms of legality. I suggest that opposition is in turn embedded in an even more elemental distinction between different state forms. Turning to Montesquieu's The Spirit of the Laws, I first investigate the historical and geopolitical processes by which modern political theory reduced the political universe into three species of states (republics, monarchies, and despotisms) and then merely two (democracies and authoritarian states). I then turn to the contemporary genealogy of the concept of rule of law, which arose first as a critique of the rise of the administrative state in the West and then became a means to delegitimize socialist conceptions of legality. I conclude by focusing on the People's Republic of China to evaluate the utility of assessing its legal order in terms of authoritarian legality as well as in terms of democracy more generally.