Present Trends of Authoritarian Legality in China : The Operational Constitution

In recent decades, democracy has struggled. The gradual erosion of checks and balances and institutional independence of former democratic leaders now threatens the maintenance of established universal values and the protection of fundamental human rights. Simultaneously, democratic retrogression is accompanied by autocratic growth, alongside a new and unprecedented investment in legalistic governance in autocracies, identified by some as the rise of globalised ‘autocratic legalism’. This Article argues that a new and important trend of this legalism is the autocrat’s emphasis on ‘constitutional law’, and the development of a set of constitutional norms that are exempt from the influence of liberal constitutionalism. Autocratic leaders engage their state constitution in implementing amendments that entrench their authority, to declare martial law, and as a basis for legal rhetoric and policy implementation while engaging in legalistic language to promote the importance of the constitution. A top-down conceptualisation of constitutional law that is complex, self-referencing and relativistic is rapidly becoming a hallmark of sophisticated authoritarian regimes. This conceptualisation of constitutional law is termed here as the autocrat’s operational constitution. This Article endeavours to contribute insight on this new direction within the context of the People’s Republic of China (the PRC or China). Namely, this work will propose an answer to the following question: what principles and ideas underline top-down conceptions of constitutional law embraced by the incumbent administration in China – or what is the operational constitution for the New Era? To understand the answer, it is necessary to go beyond the blackletter and discover which texts and principles underline this particular form of autocratic legalism.