Authoritarian Legality and Legal Instrumentalism in China

Law has become increasingly important for authoritarian regimes. This article analyzes the dynamics of authoritarian legality by delineating two pure types of authoritarian politics, i.e. normal politics and exceptional politics. It explains the institutionalization of authoritarian legality - from law-making to final adjudication - through a politically controllable congress and court system. It further identifies three pure types of instantiations of legal instrumentalism, based on the variance of political ideologies: liberal, apolitical, and illiberal. Taking China as an example, the instantiation of legal instrumentalism in illiberal regimes has been different from those in liberal regimes. It further argues that legal instrumentalism as instantiated in an illiberal context provides a more explanatory framework than either Marxist or Confucian legal theories to reveal the law's nature and function as a crucial instrument for developing the enterprise of legality grounded on illiberal principles in China.