Comparative authoritarian law

Introduction

Engagement with comparative legal sources is now routine in the study of public law.^[1] There is widespread acknowledgment of how comparisons can illuminate differences and similarities across constitutional systems in ways that aid interpretive endeavors. Such acknowledgment is visible in scholarly contributions in the still flourishing field of comparative constitutional law, but it has also been a staple feature of judicial doctrine across a great many jurisdictions. The examples are easy to provide. One can consider not only prominent American cases, but also the practices of courts in other established Western democracies like the United Kingdom and newer states like India, Kenya, and South Africa.^[2]

The comparative endeavor in comparative constitutional law has predominantly involved comparing rights, institutions, and structures across jurisdictions that share a commitment to constitutional democracy and to the values and principles that we have come to associate with the postwar liberal legal imagination.^[3] In recent years, comparative constitutional lawyers have turned to a different kind of comparative exercise. The backsliding witnessed in old and new democracies over the past decade or so has been a central theme in comparative constitutional law scholarship.^[4] In cases of democratic backsliding, scholars have recognized that the trappings of democracy can exist without many of the attendant liberties and constraints that we associate with such regimes. In many instances, democracy has been reduced to the bare practice of popular authorization, operating without restrictions on state power, familiar checking and balancing institutions, customary rights-based guarantees, and so forth. We have come to understand and compare how “elected authoritarians” have entered office through popular support in countries like Hungary, Poland, Turkey, and so on only to undertake legal changes that undermine basic constitutional norms and produce an illiberal form of democratic rule.^[5]

The flow of scholarship contrasting the similar and different ways in which the “crisis of constitutional democracy” and the phenomenon of “populism” have unfolded across a range of democracies has underlined the possibilities of cross-national learning.^[6] But more ambitious possibilities for such learning remain. In particular, we are witnessing not only an undermining of democratic norms across several constitutional democracies, but more fundamentally a borrowing of authoritarian techniques. Even though authoritarian-esque leaders in backsliding democracies have turned to authoritarian legal practices, comparative constitutional law scholarship is yet to draw on the now extensive literature on traditional authoritarian systems. Comparative constitutional law scholarship remains largely embedded in the postwar liberal legal imagination. In other words, beyond the study of democratic retrogression and abusive constitutionalism, there is the potential for learning from practices in conventional authoritarian states.

Indeed, the present political moment offers an opportunity to place two bodies of literature, on comparative constitutional law and on the study of authoritarian law, in conversation with one another in ways that have hitherto rarely been done. This Article uses the occasion of this symposium to ask what such an endeavor might involve. We must begin by acknowledging a certain dichotomy that has thus far structured our analyses. In the practices of comparative constitutional law, both courts and scholars distinguish between those jurisdictions that are similar enough such that our legal inquiries might encourage serious engagement with them—whether the eventual result is one of convergence or departure—and those that are fundamentally different in ways that offer a reminder of the positions we should avoid taking. Kim Lane Scheppele has identified this contrast in the context of constitution-making as the “difference between aspirational and aversive constitutionalism,” but the distinction is equally prevalent in judicial practice.^[7] Insofar as a court chooses to refer to particular jurisdictions—insofar as, say, a Canadian court chooses to engage with the legal position in the United Kingdom and the United States—it chooses to exclude the consideration of certain jurisdictions from its analysis.^[8] Indeed, all descriptions reflect a choice.^[9] In the case of comparative constitutional law, our descriptions usually reflect a decision to divide the world into authoritarian and democratic states.

When the reference to a nation being dissimilar is explicit, it will often serve to emphasize how the country in question is so radically different from the country to which we belong—so different that it is commonality rather than difference which should concern us. Such reference can occur even when there is no specific engagement with foreign law. In Dobbs, for instance, Chief Justice Roberts reminded us that “[o] nly a handful of countries, among them China and North Korea, permit elective abortions after twenty weeks.”^[10] And lest we collapse into a kind of democratic bias, it is worth noting that such a practice is present across different types of regimes. In Lim Meng Suang, for example, the Singapore Court of Appeal—in upholding the criminalization of same-sex relations—identified the approach to rights in countries like Canada, India, South Africa, and so on as marking points of departure.^[11] Simply put, the reference to countries that are different is often made to underscore a path that a court has chosen to take with respect to its country.

But at a time when the binary between liberal democracies and authoritarian polities no longer represents our political reality as neatly as it once did, comparative constitutional lawyers whose focus is on liberal democracy—and on defending liberal democracy—would do well to draw on the study of authoritarian regimes. The study of such regimes is a major area of comparative legal research, but it is yet to receive due attention from comparative constitutional lawyers. To be sure, several comparative constitutionalists have considered such regimes, but what bears mention is that both bodies of literature are distinct.^[12]

The domain of comparative constitutional law has, crudely put, focused on the study of constitutional law in liberal democratic states. In contrast to such work, most scholarship on existing authoritarian regimes has focused on particular countries or regions, like China or the Middle East. The governing question for such research has been the role that law plays in such societies—societies that are often caricatured as being, quite simply, lawless, despite the abundant use of law to regulate such societies. In the case of China, for example, considerable writing has focused on how the Chinese party-state uses law and legal institutions, and on whether law can restrain official action. Several instrumental reasons have been offered to understand the acceptance and use of law, from the facilitation of economic development to the preservation of social order to the maintenance of state legitimacy.^[13]

The bifurcation of regime type that has structured comparative legal research for decades—for comparative constitutional lawyers and for scholars of specific authoritarian regions—reflects a world that is now under strain.^[14] With the global rise of authoritarianism and the growing use of law by authoritarian states, the world is harder to separate into two camps than it once might have been. Today, developments like populist authoritarianism—in countries like Hungary and Turkey, for instance—expose the challenge of clearly distinguishing between comparative constitutionalism and legal studies of authoritarianism.^[15] Some scholarship has begun to appreciate the need for comparative work across different kinds of regimes and has attempted to understand how authoritarian regimes might share certain characteristics with democratic ones. By and large, such work has focused on specific case studies. An excellent example is Mark Tushnet’s study of Singapore, which considers how law might be a normative constraint in a system that otherwise imposes few constraints on public authority.^[16] Tushnet’s study—his goal in pluralizing constitutionalism—thinks through the ways in which Singapore is and may not quite be an authoritarian regime. In other words, it serves to commence a conversation on problematizing and scrutinizing a regime against an ideal type. This Article is very much in the same spirit.^[17]

It is worth noting that in the effort to pluralize constitutionalism, it may be helpful to hold up for consideration archetypal examples, even if a great many regimes do not match the archetype. Given this, it is unsurprising that China features prominently in this Article. But there are even further reasons to use China as a focus of comparison. China is the largest and most influential authoritarian country. It is also one where law has been central to efforts to boost the Communist Party’s legitimacy and to China’s efforts to exert global influence. In many respects, China appears quite different from most countries that have undergone democratic backsliding in recent years. In China, the account is one of legal construction, as the party-state has built a highly sophisticated legal system since the end of the Cultural Revolution in the late 1970s. In contrast, from the perspective of the system, the developments in many formerly liberal systems relate to legal destruction—autocratic leaders have worked to undermine legal norms and, in some cases, the legal system itself. Yet China is not wholly absent from this backsliding narrative. Legal reforms have stalled under Xi Jinping, as the Communist Party has reasserted control over all aspects of Chinese governance, including the legal system. In addition, in Hong Kong, law has been central to the central government’s elimination of political dissent and assertion of oversight. Indeed, Hong Kong has arguably undergone the most rapid shift from a liberal to an illiberal society anywhere in recent years, with law central to this transformation. The Chinese case is thus pivotal to efforts to engage in the comparative study of the role of law in authoritarian systems.

Our endeavor is speculative—and it has modest aims. It offers a generalized set of reflections on how we might engage in comparative legal research in a world marked by a plurality of regime types, and where there is increasingly a continuum both in regime type and in legal practices.^[18] Cross learning between scholarship on authoritarian regimes and democratic ones may serve several benefits. It may indicate the onset of authoritarianism in a democratic regime, as well as suggest the endpoint of authoritarian rule. It can allow us to break away from the binary between authoritarianism and liberal democracy and speak in terms of degrees of democracy and authoritarianism (and everything in between). Cross learning can give us benchmarks for measurements in this regard. In a way, we already have such benchmarks, but they are mostly from the liberal democratic point of view—such as measuring the degree of protection of human rights, the extent to which law constrains state action, the degree of free and fair elections, and so on—rather than from the vantage point of authoritarianism. We have thus until now only been able to speak in terms of the degrees of perfect democracy rather than the degrees of regime type more generally.

In the discussion that follows, we first reflect on the nature of institutions, making the basic point that when we study an institution, we must understand it within the type of regime in which it is located. Close attention to an institution’s practices may help illuminate the character of the regime in question. We then turn to two themes—legal dualism and internal and external security. Focusing on legal practices across these registers is a way to comprehend more fully the regimes and the regime types that we study. Such an effort can allow us to present a more complete and accurate account of such regimes. But it may also serve a further, more ambitious purpose. With the global shifts in regimes, the meanings of authoritarianism and democracy are themselves less plain than they once were. Because law plays a central—even constitutive—role in how a regime functions, to study legal practices in a state is to grasp the dimensions across which we might regard a state as authoritarian or democratic. In other words, our proposed inquiries might not only direct our attention to the authoritarian and democratic features within a regime, but they also clarify what authoritarianism and democracy mean.^[19]

I Institutions

Whether one considers the writings on judicial review, models of the separation of powers, or the varieties of federal arrangements, one notices a sustained effort by comparative constitutional lawyers to understand structures and institutions. Historically, comparative constitutional lawyers have studied institutions to understand how we might best place limits upon the exercise of power. To offer but one example, considerable writing has been devoted to different models of judicial review.^[20] In recent times, with the rise of populism, the focus has shifted from models of institutional design to the mechanisms by which the limits on authority can be broken down. For instance, in the case of Hungary, scholars have considered how the Fidesz Party’s victory in 2010 was followed by a series of constitutional amendments that disempowered checks and balances and paved the way for a new constitution to be created.^[21] During the PiS’s reign in Poland, one similarly notices how institutions like the Polish Constitutional Tribunal were rendered powerless through various legal changes.^[22]

In the writings on populism, the attack on institutions has been a dominant theme. In his study on the global rise of populism, Wojciech Sadurski has sketched out several ways in which populists hollow out preexisting institutions: institutions can be captured by the appointment of new personnel; they can be superseded by newer ones; they can be rendered nonfunctional through a change in their powers and capacities; their authority can become entirely subsumed within the authority of the leader; they can lose their independence by a reconfiguration of their place in the institutional map; and finally, they can be liberated from oversight by other institutions.^[23] As Sadurski notes, populists still use institutions, but they “work within the inherited institutional architecture and subvert it for their purposes.”^[24] The writing on populism has explored how a leader or party can subvert an institution, while acknowledging that the shift away from constitutional democracy is not necessarily an anti-institutional shift.

Institutions—and, indeed, officeholders too—take on the hue of the systems within which they operate: they reflect the structure of authority. They thus help reveal the nature of a regime. The scholarship on authoritarian law encourages us to consider institutions that play roles other than a checking and balancing function, and also to examine institutional functions beyond only checking and balancing. Importantly, Sadurski’s study reminds us that we cannot assume the irrelevance or nonexistence of institutions in hybrid or nondemocratic contexts. The study of institutions, then, requires a fine-grained assessment of the precise mechanisms of accountability that exist. Scholarship on institutions in authoritarian settings has gestured at this in focusing on the goals that such institutions serve. For example, in their key study, Rule by Law: The Politics of Courts in Authoritarian Regimes, Tom Ginsburg and Tamir Moustafa identify a set of instrumental goals that authoritarian courts can serve, namely the establishment of control, the achievement of legitimacy, the solving of coordination problems, the facilitation of economic development, and the adoption of unpopular policies.^[25] The emphasis on courts is understandable given that judicial independence has long been viewed as central to the rule of law.^[26] Insofar as this is true, understanding the nature of courts is helpful in understanding the nature of legality in the regime in question.^[27] Other scholarship has confirmed how judicial institutions are key instruments by means of which the state curbs dissent, controls opposition, and undertakes changes and reforms. In the case of Egypt, for example, it has been suggested that the creation of the Supreme Constitutional Court helped to “relieve political pressures and perform a legitimizing function without opening up the political system.”^[28] During Pinochet’s rule, to offer a different example, the institutional structure of the judiciary is understood to have facilitated its utter subservience to the regime.^[29]

It is tempting to see institutions in authoritarian states as non-constraining and instrumental. In his work on the Middle East, for example, Nathan Brown views nondemocratic constitutions as “organizing power without limiting it.”^[30] Similarly, Tom Ginsburg has referred to authoritarian periods in Korean history as exemplifying “the instrumental use of the rule of law,” where law should be understood as “a tool of the rulers, not a constraint on them.”^[31] Such scholarship rightly captures the existence of some relationship between institutional accountability and the political leadership, but it does not fully underscore how institutions can enjoy some genuine zone of autonomy that plays a role in maintaining the regime in at least some authoritarian states. Consider one of the functions of courts that Ginsburg and Moustafa recognize, as noted above: the adoption of unpopular policies. For institutions to plausibly take the blame for certain decisions, the relevant institution must to some extent be perceived as distinct from political actors, which suggests that authoritarians must tolerate some degree of institutional autonomy.^[32] What appears noticeable in authoritarian regimes is not the absence of autonomy, but that the autonomy in question is not situated within a framework that is open to public criticism, public accountability, or public change—but nevertheless it does serve a real, functioning purpose. The question is how a regime both empowers an institution as well as makes it subject to the discretion of the rulers.

We may offer two non-exhaustive illustrations in this regard. One technique that exists is familiar to comparative constitutional lawyers. An authoritarian regime may create several institutions, allowing them to check one another.^[33] Such a schema serves to keep organizations rather than the ultimate authority in check; it keeps the institutions accountable. The goal of this kind of “authoritarian separation of powers” is not to preserve the liberty of the individual, but to preserve the authority of the state.^[34] Consider the empowerment of the administrative judicial organs in Egypt in the 1970s-80s. By creating and investing in specific institutional forums, the state was able to use the courts to check its officials. As Tamir Moustafa notes, “[t]hese new institutional channels increased the accountability of government bureaucrats, enabled the regime to monitor and discipline administrators diverging from their state-proscribed mandates, and facilitated the coordination of state policy.”^[35]

A second technique involves exempting institutions from the sphere of legality—or perhaps fudging the line between legality and non-legality.^[36] Here, China offers an interesting example in the form of the new supervision commissions created at every level of the Chinese party-state in 2018. Such commissions are tasked with fighting corruption and draw personnel both from the Communist Party’s own anticorruption bodies (the Communist Party Discipline Inspection Commissions), as well as from the procuratorate (the state body responsible for bringing criminal prosecutions and generally overseeing the legal system). Despite having extensive powers to investigate corruption, including the power to detain suspects, the supervision commissions are not formally legal bodies but are party-state political bodies. With respect to their functioning, the rules of criminal procedure do not apply and there is no possibility of challenging decisions of the supervision commissions in court. Among other things, this fact underlines the fragility of the line between legal and nonlegal institutions in authoritarian regimes.

There is a second point worth making with regard to the study of institutions. If we are to understand regimes more fully, we must consider institutions beyond those that are usually the matter of assessment within constitutional democracies. This is, at one level, an elementary point of legal theory: to understand a system, we must understand the hierarchy of norms within that system. To understand whether and how a regime is authoritarian or democratic, we are required to consider the place of a wider set of institutions and institutional contexts. For example, institutions that mediate the relationship between the state and society are crucial to understanding a political order.^[37] The literature on populism has been sensitive to this fact in drawing attention to institutions like the media. The Media Council in Hungary has been commonly referenced, for example, for its role in the country’s political transformation. But other mediating institutions have been less examined. Take, for instance, the academy and educational institutions, which are rarely studied by comparative constitutional lawyers. In Israel and Turkey, for example, dramatic changes in the educational curriculum now further a specific form of ethnic and religious nationalism, thereby constructing a new kind of civic culture and a new kind of citizen.^[38] Such changes—made through formal state action—not only illuminate the legal order (by capturing the extent of control exercised by the state) but also help to legitimize and sustain the regime.

Such efforts may also be directly visible in the domain of legal education. Here, recent shifts in China are again illuminating. From the 1980s through the 2000s, legal academia in China was often a site where liberal norms were disseminated. Borrowing from Western systems was common. More recently, however, the Communist Party has sought to put its stamp on legal education more directly. Textbooks from prominent liberal public-law scholars have been banned. In early 2023, the Communist Party’s General Office, together with the State Council, issued a notice on “strengthening legal education.” Specifically banned are discussions of “constitutionalism” and “separation of three powers.”^[39] The notice suggests not just an attempt to silence liberal legal thinkers; it reflects an attempt to reshape legal education more generally to bring it closer in line with Party ideology. Similarly, courses on Xi Jinping’s rule of law thought are now mandatory in Chinese law schools. For much of the reform era, borrowing from Western legal thought was seen as key to modernizing China’s legal system; today reshaping legal education has become central to maintaining Communist Party authority.

The professions are another important example of a mediating institution. Take, for the moment, the legal profession.^[40] This profession is especially interesting because lawyers’ commitments to a positivist account of law can provide jurisprudential resources for defenders of authoritarian legality. In Nazi Germany, the state not only tightly controlled the membership of the profession but also its ideology, as the task of the lawyer was redefined to be one of service to the overall goals of the state.^[41] Contemporary studies on China have confirmed the importance of studying lawyers. Rachel Stern’s recent work on the Chinese bar exam—with its politicization and emphasis on loyalty towards the state—is one example of such work.^[42] A recent study on Pakistan offers yet another illustration by showing how the strength and autonomy of the legal profession have been central to the judiciary’s actions with respect to the presence of martial rule during Pakistan’s history.^[43]

As concerns over democratic backsliding have grown, there is an emerging effort to turn our attention to a broader set of institutions. Vicki C. Jackson, for example, has recently turned to what she refers to as “knowledge institutions,” such as universities, the press, and certain professional and technical state bodies.^[44] But we are only in the very early stages of incorporating the study of such institutions into our work.^[45] In thinking about such institutions, engagement with traditional authoritarian regimes can be helpful quite simply because these regimes are also in the business of knowledge-creation and control. As such, it is less the presence of particular institutions and more the relationship between their authority, the authority of citizens and the state, and the overall structures of accountability that is likely to help us better appreciate the attributes of particular regimes. To end on a very different example, consider Yuen Yuen Ang’s work on corruption in China and its distinctiveness from corruption in the West. Ang’s contribution on the rise of capitalism highlights the very different mechanisms that can shape regulatory outcomes in different settings—as well as how, in a way that supports our call for broader comparative work, varying outcomes might nonetheless share great similarities.^[46]

II Two Forms of Duality

In authoritarian regimes, the prerogative will of the state exerts a dominating power over the law. It commands the interpretation of the law, delimits the boundaries of state intervention, and steers the relationship between high-level politics and daily routines. Consider the public-private distinction, a feature central to constitutional democracies.^[47] One form in which the distinction manifests is through the existence of a private-law regime. In authoritarian regimes, with powerful centralized states, there is often no clear divide between private law and public law: all disputes have the possibility of becoming issues of state concern. This blurring is often rationalized by means of concerns pertaining to escalation and social stability. The state achieves its aim of order in part through the intervention in and regulation of private law. In China, for example, even in medical malpractice cases, the state often intervenes to compel settlements in the hope of preventing protest.^[48] To be sure, in both democratic and authoritarian regimes, there can be relatively clear distinctions between public and private law. What may be more significant is the power and willingness of authoritarian states to intervene in the latter—thereby, of course, calling into question the significance of the distinction.

In a country like China, the concerns of the party-state appear even in routine tort litigation where the threat of escalation or protest is remote or nonexistent. Chinese tort law is also instructive for having a different conception of what counts as private law and public law. Chinese law explicitly recognizes forms of collective loss-sharing largely unheard of elsewhere, and until recently explicitly authorized holding nonnegligent parties liable based on fairness principles.^[49] In some such cases, mere presence at the scene can lead courts to compel compensation by defendants not causally linked to an accident.^[50] In such instances, courts appear to pursuing a mixture of values: pragmatic justice, social cohesion, and loss-spreading.^[51] Likewise, state values are clear in family law, where a state linkage between family harmony and social harmony routinely leads courts to deny divorce requests and to overlook even egregious cases of domestic violence.^[52]

Moving beyond the traditional domain of public law is thus crucial to understanding how constitutional democracies are evolving as regimes. At a most basic level, comparisons that attend to the public-private distinction reveal the boundaries of state power. The comparison between the public and the private domain discloses the protection accorded to the domain of the private. Or, put differently, such a comparison may reveal what counts as public law, and what as private law. The state’s willingness to intervene in private law can be a sign of an authoritarian tilt. The constitutional transformation in Hungary, for example, is not only limited to the structures of government; it has also involved a radical alteration in the relationship between the state and the market.^[53]

In recent years, scholars of constitutional democracies have scrutinized the public-private distinction, but in different ways from those who study authoritarian regimes. In the case of constitutional democracies, the primary concern of studies on the public-private distinction has been excessive forms of private power, and the consequent undermining of the public domain. The concern has not been that of an unbound state. Here, the call to intervene in the private domain has been a progressive call—it has aimed at preventing the abuse of private power. This literature has focused on the takeover of public functions by private actors, the undue influence exerted by private corporations on politics, and so forth.^[54] In one sense, such scholarship also acknowledges the importance of the public-private distinction, but its worry is the opposite of that usually associated with authoritarian regimes: the concern is with excessive private power rather than excessive public power. That is to say, democracy is at risk because of a weak state that has lost its capacity to control private power.^[55] This is, of course, an important matter; it is a reminder that studying the public-private distinction is not straightforward. Indeed, not all state interventions in the economy can be casually framed as authoritarian.^[56] Just as scholars of constitutional democracy have realized that studying the boundaries of private power can challenge the democratic foundations of a polity, the scholarship on authoritarian legal regimes emphasizes the importance of studying the boundaries of public power. Together, the importance of turning to the public-private divide in understanding a regime is clear.

There is a second prominent distinction in the study of authoritarian systems—namely that between what we might call matters of high-level politics, on the one hand, and ordinary quotidian practices and rules, on the other. Here the distinction is not between state actions and private action, but instead between matters of political significance and those that relate to routine social exercises. Such routine exercises can involve the state—for example, an application for a driving license. This distinction appeals to and draws on Ernst Fraenkel’s classic work, The Dual State, arguably the most important legal account of Nazi Germany.^[57] The Dual State portrayed how authoritarian legal regimes can construct dual systems, using law (or law-like norms) in the normative state while maintaining total control using the prerogative state. Fraenkel’s distinction between the prerogative and normative states does not neatly track the distinction between the public and private domain. Within the normative state, he was interested in matters that involved private parties as well as bureaucratic relations between citizens and the state. The emphasis was not on the public-private distinction, but on the ways in which an oppressive, totalitarian regime could have complete discretion and nonetheless create a functioning social order in which the law-based observance of rules had a place.

Recent years have witnessed much interest in Fraenkel’s typology. Legal dualism has served as a kind of framework for authoritarian regimes in which one often finds that law both exists and does not exist.^[58] In the case of China, for example, several scholars have applied Frankel’s “dual state” theory of law.^[59] On the one hand, this framework has been used to conceptualize the repression that the Chinese party-state has exercised under Xi Jinping. The party-state’s “civil society crackdown, its persecution of minorities in Xinjiang, and the tightening of political control,” Pils observes, “unmistakably bear the marks of the actions and self-portrayal of a Dual State dictatorship.”^[60] On the other hand, this framework has been relied on to underscore how, as Fu notes, amidst “the extra-legal regime, there is a normal legal system, less politicized, reform-oriented, and semi-autonomous, which continues to evolve toward maturity and grow in institutionalization and sophistication by offering rules-based solutions to a wide range of social conflicts.”^[61]

The typology has also prompted more sociologically grounded work on the lived experience of law in daily life. In the case of Russia, for example, Kathryn Hendley’s work has suggested the possibility of a stable, politically non-contentious legal domain involving routine cases, like auto accidents.^[62] As Hendley notes,

If assessed in terms of these mundane disputes, the Russian legal system would receive respectable scores on many elements of the rule of law. On the other hand, these routine cases, though representing the vast majority of cases brought to the courts, do not capture the full story of Russian law. Those who bring nonroutine disputes into the legal system (or have such cases brought against them) risk being swept into the shadowy world of telephone law. In such cases, the written law takes a back seat to brute power and any pretense of justice is absent...

In an ironic twist, both routine and nonroutine cases are marked by predictability. It is just that the sources of that much-desired stability are different. For the former category, it stems from the law itself, whereas for the latter category, it is rooted in power.^[63]

Here, as we can notice, the relevant distinction is less between public and private law, and more between ordinary legal matters in which the state machinery functions in a law-like manner and extraordinary matters which are hostage to the whims of the state. As Fraenkel himself grasped, to determine whether regimes genuinely exhibit legal dualism is of course far from easy. As Mark Tushnet has recognized, the challenge in applying legal dualism in a neat manner arises in part from the fact that the boundary line between the normative state and the prerogative state is not only underspecified—and perhaps fluid—but from the fact that it is determined by the authoritarian ruler. In Tushnet’s attempt to apply the framework to lynching in the American South, he attends to the arbitrariness of the boundary line, including its shifting by means of extralegal norms.^[64] In the Chinese case, a number of scholars have pushed back against the “dual state” framing, noting the difficulty of separating routine from political cases, the absence of a preexisting normative legal order, the instability of the model itself, and the fact that there is no domain completely free from potential Communist Party influence.^[65] That is to say, there is no real “normative state” within the Chinese legal system. Indeed, Fraenkel’s thesis itself was somewhat subtle, for it challenged in certain respects the stability of the dichotomy he laid out. And other historical examples are similarly complex. The Soviet Union contained many laws that existed and continued to exist because they had no political consequences, but those domains of private activity were not domains of autonomy, but ones that the leadership allowed because it only furthered the leaders’ authority.^[66]

These distinctions—between public and private law, and between high-level political matters and routine practices—are attempts to better understand the character of a regime and the specific ways in which state power is structured across different domains and arenas. The dual state frame, the emphasis on routine cases, and so forth clarify the powers of a state and other forces, allowing us to make sense of the degree of citizen autonomy within a regime. Inattention to such themes risks mis-conceptualizing the regime in question. For example, certain regimes might satisfy a range of rule-of-law criteria in one domain of law but nonetheless appear to be far more authoritarian in another domain. The two forms of duality that we have underscored allow us to understand regimes in totality; to engage in the study of comparative legal systems rather than simply comparative public law. In studying populism, comparative constitutional lawyers have observed how changes to the overall regime can occur through both constitutional and sub-constitutional measures.^[67] But the corollary is also true: a regime—like, for example, Brazil or Poland—might succeed in electing populist leaders out of office, but we must not assume, without a broader assessment of such regimes, that they are now constitutional democracies. Simply put, their authoritarianism might lie elsewhere.

III Internal and External Security

In the post 9/11 period, the topic of emergency powers invited a great deal of comparative interest. Scholars focused on the different ways in which constitutions sought to address moments of breakdown, and the various means by which they strove to meet the ideals of liberty and security.^[68] Two distinctions animated this genre of scholarship. The first was the distinction between emergency periods, as exemplifying exceptionality, and ordinary times, when individual liberty was protected and the exercise of power, constrained. The second distinction was between citizens and aliens. Were there certain guarantees, such as habeas corpus, that would apply even to noncitizens?

Each of these distinctions—between normal and abnormal times, and between citizens and aliens—breaks down in the case of authoritarian legal regimes. Studying security-related laws is vital to understanding the realities of a regime. A familiar fact about authoritarian regimes is the emphasis their legal architecture places on the maintenance of order. In such regimes, it is not simply that there are fewer civil liberties or a reduction of checks and balances in the exercise of state power, or that the scale and scope of the coercive apparatus is far larger than what one generally associates with a democratic state. The more fundamental feature of the legal framework in authoritarian regimes is the blurring of the boundary between internal and external security.^[69] In such states, the distinction between friends and enemies, to speak in Schmittian terms, no longer overlaps with the territory of the nation-state. Rather, there are “enemies from within.”^[70] In such regimes, there is a link between both internal and external security and the nation—often underscored by inimical approaches to protests, civil disobedience, and the like.^[71] It is, of course, true that democratic states can and do exhibit examples of such practices—in many instances, they view not only permanent residents but also their own citizens as “antinational.” In the post 9/11 era, the rise of global antiterror laws and the antiterrorism framework illustrate the kind of legal architecture in which the state acquires extraordinary discretionary penal authority even over its own citizens.^[72] But this only reveals the point, for insofar as this is true, such democratic regimes—notably the United States—embrace an authoritarian edge. Even though features of the post 9/11 legal era are appreciated, they are not uncommonly framed in terms of a security regime rather than in terms of quite simply an authoritarian one.

The blurring between internal and external security is partly achieved through how crimes are constituted. The vagueness and latitude associated with the definition of a crime empowers the state not only to apply the law to particular situations, but in fact to construct and modulate it depending on the circumstances. This is not a new phenomenon. In the notable authoritarian regimes of the twentieth century, one saw the expansion of coercive power—the turn to absolutism—through “the extension of such conceptions as treason and subversion” and “the broad interpretation of the ‘national interest’ and the ‘security of the state.’”^[73] In authoritarian regimes like Singapore and pre-democratization South Korea, statutes like the Internal Security Act, 1960, and the National Security Act, 1948, respectively, are similarly infamous for how they characterize crimes.

Hong Kong provides the most prominent recent example in this regard. The National Security Law—officially titled the “Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” (NSL)—became effective on July 1, 2020.^[74] China’s National People’s Congress Standing Committee adopted the law without any public consultation and made it public only at the moment that it became effective. Yet the effect was almost immediate, as civil society and democratic opposition in Hong Kong were largely eviscerated overnight. Numerous accounts detailed how civil society organizations disbanded and individuals deleted their messaging service accounts almost immediately after the law became effective. Despite promises from pro-Beijing lawmakers that the law would be rarely used, hundreds of national security trials have followed—including those of virtually all members of the previous democratic opposition in Hong Kong’s Legislative Council.^[75]

As Cora Chan has carefully analyzed, the NSL contains a variety of provisions on secession, subversion, terrorist activities, collusion with a foreign country, and so on that define activities in vague terms. The provisions are a helpful illustration of how expansively an authoritarian regime might view national security. As Chan notes, the provisions “can potentially be interpreted to cover activities that pose no imminent threat to security.”^[76] As a consequence, the determination of guilt is relegated to judicial approval of the state’s discretion. Although the law’s name suggests a focus on national security, the text makes clear that the law does not distinguish between what it perceives to be domestic opposition and international criticism. The point here is not that restrictions on the former are more legitimate than the latter, but that dissent is framed as an existential threat. For example, in Article 29—which deals with “collusion with a foreign country or with external elements to endanger national security”—the law lists as one of the five categories of offenses the “provoking by unlawful means hatred among Hong Kong residents towards the Central People’s Government or the Government of the Region, which is likely to cause serious consequences.”^[77] Similarly, the provision on subversion includes among its proscribed activities the offense of “seriously interfering in, disrupting, or undermining the performance of duties and functions in accordance with the law by the body of central power of the People’s Republic of China or the body of power of the Hong Kong Special Administrative Region.”^[78] A notable use of the provision has been the targeting of 47 pro-democracy figures. Here, even participation in a democratic primary in which more than 500,000 Hong Kong voters participated is recast as a threat to national security.^[79]

The NSL’s assertion of global jurisdiction captures the fusing of internal and external security. The NSL claims jurisdiction over actions outside of Hong Kong or China by anyone, regardless of whether they have ties to Hong Kong.^[80] The global reach of the NSL stands in contrast to China’s own Criminal Law, which states that crimes committed overseas by “foreigners” against the Chinese state are not subject to sanction if such acts are not deemed criminal in the jurisdictions in which they are committed.^[81] China’s Criminal Law thus exempts most speech crimes committed by non-Chinese nationals outside of China. In Hong Kong, in contrast, speech critical of Hong Kong overseas is potentially criminalized.

The overarching logic here is that the state is permanently under threat by those who are both within and outside the state. Law is increasingly and fundamentally the tool that gives voice to and articulates the perceived threat. One can therefore see why scholars have problematized the concept of authoritarianism by inquiring into whether law-enforcing officials serve the citizens or the regime. For example, Yanilda María González’s work conceives of the police force in many Latin American states as authoritarian because they serve to preserve the political leadership rather than the interests of the people.^[82] We have previously pointed to the language of terrorism and counterterrorism, and how democratic regimes also challenge the neat citizen-alien binary. But in authoritarian states there is much greater malleability between the categories of insider and outsider; the legal architecture discriminates between the citizen and the alien, but it also reconstructs these categories, their interrelationship, and their joint threat to the state. All persons are a potential threat.

The starkest example of the breakdown between citizen and alien occurs in the case of martial law. In some instances—most notably, a civil war—the distinction between the internal and external may well collapse. But in other cases of martial rule, the military—an institution meant to protect the state from external threats, to keep the nation safe from external threats—now performs the task of domestic law enforcement.^[83] Within comparative constitutional law scholarship, few studies focus on the military, even though, despite the current interest in populism, martial law remains very much a global reality.^[84] The study of the military is important beyond merely periods of martial rule. In ordinary periods as well, the military and other national forces can be granted the authority to maintain domestic security, and attention to this role can be revealing for it can indicate the blurring of internal and external security.^[85] The 2024 flirtation with martial law in South Korea provides a helpful contemporary example. Even though the attempt to impose martial law eventually failed, the attempt itself was a sign of a leader starting to tread an authoritarian path.^[86]

The military may also exist as a kind of extralegal presence that shapes domestic politics in informal ways. We can take account of Pakistan’s constitutional history in this regard. The country has oscillated between periods of martial law and periods of constitutional democracy, but the military has been a constant presence throughout. In such scenarios, attention to the military serves a different purpose. Here, it is not the presence of martial law that is of moment, but rather the role of the military in domestic politics even in periods when there is no imposition of martial law. In such instances, we are reminded of how formal legality does not reveal the breadth of the political-legal forces that shape power in a regime; we are reminded of how formal democracy may mask a far more hybrid regime.^[87] In different ways, then, greater attention to civil-military dynamics can illuminate both the character of a regime and a potential trend towards authoritarianism.

Conclusion

The current frame that comparative constitutional lawyers adopt in studies, from judicial review to structures of government to the nature and forms of rights, presumes a great deal about a regime—its division between distinct domains of law, the separation between state and non-state power, the distinction between ordinary and extraordinary periods, and so forth. But with many democratic regimes now exhibiting authoritarian elements, and with many authoritarian regimes now turning to legality to achieve their ends, the assumptions that have shaped comparative constitutional law scholarship seem less warranted than they once were. Contemporary developments in the U.S. underscore the importance of the comparative project we outline here. To understand regimes anew, we must move beyond the traditional domains of study that have thus far rightly preoccupied the comparative study of public law. The study of authoritarian legal practices is now central to understanding constitutionalism as a general matter.

From its initial examination of the judicial use of foreign law to its broad-ranging efforts to compare rights and structures to its recent attempt to understand democratic backsliding, comparative constitutional law is an extraordinarily dynamic field. In this Article, our goal has been to draw on work in both comparative constitutional law and the study of traditional authoritarian regimes to underscore certain themes, questions, and issues that can inform comparative work across these two domains. We try to take seriously Marlies Glasius’ call to scrutinize “authoritarian and illiberal practices,” not just “authoritarian regimes or authoritarian personalities,” by suggesting the study of legal practices across regimes.^[88] Much of the contemporary legal scholarship that moves beyond constitutional democracies considers the role that law serves in authoritarian regimes.^[89] But we are yet to fully appreciate how law serves these goals. The possibility of comparisons across a wider set of regimes offers an opportunity to consider this question—to ask whether certain legal practices may themselves be signs of, and constituent parts of, a particular regime type, like authoritarianism. The broadening of inquiries that we propose and the topics that we highlight can illuminate what might be democratic or authoritarian about a particular legal practice, which can in turn shape how we understand democracy and authoritarianism—it can yield insights into how we conceptualize each of these regime types. Such endeavors may not always be encouraging. Mark Tushnet once suggested, in better times, that efforts in comparative constitutionalism “bring to mind possibilities that might otherwise be overlooked or thought too utopian to be considered as part of a real-world constitution.”^[90] In the present age, the reverse is equally true: comparisons might expose us to possibilities that one imagined to be too dystopic for our political reality.