Rule By Norm: China's New Approach to Authoritarian Legality.

In authoritarian states, the legislative process transforms the will of those in power into law, serving as a governing tool and providing some legitimacy for the regime. This practice is referred to as authoritarian legality. However, recent practices in China reveal a new facet of authoritarian legality. In 2022, the Regulation on Handling Public Complaints and Proposals (“the Regulation”) was jointly issued by the State Council and the Central Committee of the China Communist Party (CCP), rendering the nature and legitimacy of this Regulation ambiguous. Despite functioning as an administrative regulation, the Regulation is positioned and categorized as a mere Party norm. This approach indicates the CCP’s departure from the constitutional customs it established, opting to engage directly in the legislative process rather than merely “leading” it.

This paper contends that such a change, which has been understudied, signifies a new phase in China's Party-State relationship. It poses a threat to the rule of law, and even rule by law, in China, creating an evident imbalance between the administrative and judicial systems, including the legislative system. This joint Party-norm-creation process could exacerbate the human rights situation, particularly concerning sensitive issues such as freedom of speech and freedom of religion. A significant concern is that this methodology might become more widespread in the future. By analyzing China’s case, this paper advocates for a new understanding of authoritarian legality, where legality itself becomes vague or “plural”. To be more specific, it is based on norms rather than law. Considering the overall global decline in democracy, this also suggests that the “rule by law” issue might not be the only threat the rule of law faces, but the first one.