The rule of law in an authoritarian state

The Chinese media finds it necessary to respond to criticism of the imminent trial of a dissident lawyer who is charged with "gathering crowds to disturb public order." That sounds suspiciously like "giving a speech" to western ears, and so the arrest and trial of Xu Zhiyong becomes further proof of the enduring dictatorial nature of the Communist party government. In rebuttal, an editorial writer for the English-language Global Times website insists that Xu is not being prosecuted for his beliefs. "Xu's advocacies, including constitutionalism, property disclosure of civil servants and education equality, can be expressed and are also echoed in Chinese society," the writer argues. "These advocacies are not incompatible with China's reforms." The writer denies that the trial represents a crackdown on Xu's "New Citizens' Movement." But Global Times insists that China has (or is "speeding up the construction" of) a rule of law to which Xu is accountable, not for his beliefs, but for his actions. "[T]hese political activists ... must have a clear vision of the boundary line between politics and law," according to the editorial, "ensuring that their political advocacies are shown to the public within the rule of law." At the same time, there is a fairly candid admission that the line between free thought and illegal expression is blurred, at least from some perspectives.

But in actuality, the line between the rule of law and the activists' advocacy is not clearly defined. A "gray zone" is used and expanded by many dissidents, who want to legitimize their advocacy, even some radical political actions. By painting themselves as "democracy fighters," they want to step out of the jurisdiction of the law. Any charges against their violations will be interpreted as "oppression" of democracy.

This editorial recognizes that liberalism has had the deck stacked in its favor in political debates with all comes for quite a while.  Identify yourself with "democracy" and you're automatically right. If anything, however, Global Times has the process slightly backward. Whatever PR problems China is having over Xu Zhiyong are based on the perception of the People's Republic as a dictatorship and thus a tyranny. Assume that China has a tyrannical government and it's hard to see Xu in the wrong. Worse, liberalism (I use the term in the classical sense that can also encompass much of modern so-called conservatism) refuses to give dictatorship any benefit of the doubt. Liberal readers will laugh at the claim that China is constructing a rule of law since, by liberal definition, a dictatorship cannot have a rule of law because dictatorship is always arbitrary power. If a dictatorship appeals to the idea of a rule of law, its spokesmen are assumed to be lying outright or using law in a self-serving manner -- since dictatorships are always and only self-serving. You see the same thing happening in Ukraine this month, where dissident mobs are trying to force the fall of the pro-Russian government and liberals around the world scream against the government's new law against demonstrations. On the face of it, such legislation looks abhorrent, but every so often someone should ask, just for the sake of argument in the liberal spirit, whether immunity (or impunity) for dissent is really any society's highest priority. Do we really believe that there is only "rule of law" where people can denounce the government with impunity, or at least as much impunity as we seem to enjoy in the United States? It seems instead that "rule of law" inevitably comes into conflict, and presumably must take precedence over individual liberty to some extent everywhere. But to question the centrality of impunity for dissent to the rule of law is not to imply that there exists some duty of unconditional obedience to rulers in every body politic. It's more likely that the sort of impunity for dissent that liberals idealize is ultimately impracticable or unsustainable, if we assume that no form of government is immune to subversion by genuine tyrants, some of whom may actually exploit impunity for dissent while they're in dissent. If liberals want a world of perfect immunity or impunity for dissent they're bound to be disappointed in the long run. But that doesn't mean "shut up." It means that dissidents must always accept risk, anywhere. It also means that we should never idealize dissent as a thing or end unto itself. From that follows the real challenge for liberals: to consider the possibility that dictators aren't always wrong.

Actually, in this particular case, they probably are, but that's beside the point.