Legal Cooptation and Dual State

• In Event: Judicial Politics of China

Abstract

Autocratic regimes often employ formal institutions like legislatures and political parties as tools for fostering cooperation and suppressing opposition (Gandhi 2008; Kim and Gandhi 2010; Reuter and Robertson 2015). However, a less examined aspect of this institutionalized cooptation is the role of authoritarian legality, particularly concerning the judiciary. Research indicates that under authoritarian regimes, the legal framework can redirect social disputes from more contentious methods of mobilization to judicial avenues (Chua 2012; Rajah 2012; Stern and Liu 2020). Yet, skepticism arises regarding the effectiveness of such legal cooptation. Critics argue that when authoritarian legal systems fail to meet demands, societal actors often revert to more confrontational tactics (Lee and Zhang 2013; Gallagher 2017; van der Vet 2018). Furthermore, authoritarian legal structures may inadvertently provide activists with opportunities to merge legal strategies with other forms of mobilization (O’Brien and Li 2004).

This study delves into the efficacy of a dualistic legal system as a cooptation mechanism, drawing on Fraenkel's concept of the “dual state.” This concept contrasts a normative state, guided by legal principles, with a prerogative state characterized by institutionalized lawlessness and repression (Fraenkel 1941). The hypothesis posits that such a system might be more effective at cooptation compared to traditional models of authoritarian legality, fostering engagement in sanctioned legal processes while simultaneously dissuading confrontational mobilization methods.

The study examines this phenomenon in the context of environmental legal mobilization in contemporary China under Xi Jinping. The administration allows NGO-led public interest litigation (PIL) against environmental violations and has implemented judicial reforms making courts more responsive to environmental issues. Simultaneously, it restricts foreign funding for environmental NGOs and suppresses extrajudicial mobilization like media campaigns and protests. Insights from in-depth interviews with leaders and lawyers from over 30 environmental NGOs reveal significant shifts in NGO activities. Attracted to PIL's benefits, many NGOs pivot to legal strategies, fostering non-confrontational relationships with the state to maintain legal standing and access resources for PIL.

The study identifies three distinct groups of NGOs emerging from this cooptation process: the collaborators, the professionals, and the guerrillas. The collaborators, typically with pre-existing ties to state institutions, have integrated themselves within the official environmental governance structure, gaining resources and political protection. The professionals, maintaining a cautious distance from the state, seek influence through formal legal processes but moderate their PIL practices for legal and political survival, including seeking state approval for lawsuits. In contrast, the guerrillas, representing the most committed resistors, navigate financial and political hurdles, for instance, by establishing “shell” NGOs for risk distribution. They file numerous PIL cases and display assertive courtroom behaviors, yet generally avoid public, confrontational methods like protests and media campaigns due to existential risks.

The findings underscore the potential efficacy of legal cooptation within a dual-state framework. While the normative state encourages potential regime adversaries to direct their activities through officially sanctioned legal channels like courts, the prerogative state exerts pressure to ensure these legal endeavors pose minimal threat to the regime. In the studied scenario, most environmental NGOs—despite varied agendas and institutional environments—have notably moderated their advocacy, aligning more with the state, or moderating their behaviors as they invest in PIL. Even the most resolute resistors primarily operate within the state-approved legal framework, reducing the likelihood of mass mobilization or significant challenges to the political status quo. Nevertheless, the indistinct boundary between the normative and prerogative states allows local actors to exploit the system, potentially obstructing legal mobilization for their own advantage rather than the regime's interests. This study challenges conventional views on legal cooptation, contributing to the ongoing debate about authoritarian legality and the dual state concept.

Authors

• Yueduan Wang, Peking University

• Marina Ying Xia, University of Hong Kong