I. WHOSE SOCIALISM? WHOSE LEGALITY?

Socialist Law in Socialist East Asia is a rich and interesting book by a fine group of researchers, under the direction of four editors whose diverse expertise and talent are well-matched to this enterprise. It seeks to place socialism back into the foreground of our analysis of law in East Asia. The principal argument of the book is that the socialist legacy is fundamental to understanding legal institutions in East Asia, and that this legacy stretches back to the Soviet Union and beyond.

The delineation of East Asia is curious and illuminating. Laos and Cambodia, for example, are mentioned only in the titles of two footnoted articles. North Korea is not mentioned at all.Footnote 1 Gillespie says ‘a key difference’ between social control in Vietnam and China, and ‘elsewhere in East Asia’, is ‘the party-state's moral conviction in its mission to guide society’ (p 349). The Korean Workers Party might have something to say about this. Indeed, the Democratic People's Republic of Korea is an interesting comparison precisely because it has not undergone the same political and economic transition seen in China and Vietnam. In contrast, in Cambodia, politics has undergone a horseshoe transition. The Cambodian People's Party no longer espouses a socialist ideology (in the sense used here), and it has shared power. However, its leadership dates from its former incarnation as the Kampuchean People's Revolutionary Party; it has held political power for over twenty years, and it now holds all of the seats in the (notionally democratic) National Assembly.

The book, therefore, is concerned with a singular brand of socialism, a brand lying somewhere between Fabianism and Juche. These socialisms share a common heritage but possess sufficient diversity for the comparison to be revealing. That heritage, and those differences, are exemplified with breadth and precision, restating themes and reuniting collaborators from earlier works, such as Gillespie and Nicholson's Asian Socialism and Legal Change,Footnote 2 and Gillespie and Albert Chen's Legal Reform in China and Vietnam. Footnote 3 As Tom Ginsburg notes, the book asks what is socialist about Chinese and Vietnamese law in different ways: conceptual, historical, and analytic (front matter). These various approaches – philosophical, archaeological, and anatomical – are explored in fifteen carefully researched chapters. Some, such as Fu Hualing and Jason Buhi's account of the Chinese and Vietnamese constitutions, are explicitly comparative. Others, such as the sections devoted to Labour, Regulation, and Land, juxtapose singular but complementary analyses of China and Vietnam. Three prefatory chapters by Michael Dowdle, William Partlett, and Glenn Tiffert expose the philosophical and historical themes that run through the book.

The book observes that socialism is both ‘normative’ and ‘structural’, which is to say, it is a book about both values and institutions (p 3). In the first and second sections of this article, we will consider the book's claims about socialist values and then about socialist institutions. The final section addresses the book's wider ambitions, and considers how best to engage with a liberal scholarship of socialist law while describing that law accurately.

II. SOCIALIST VALUES

The editors of this book say East Asian socialist values ‘and forms of knowledge’ offer ‘an alternative vision for modernity’ (p 20). They say that these concepts and institutional approaches are compatible with capitalism but not with liberalism. They argue that the resilience of socialism challenges our assumptions about the ‘inevitable export of western capitalism together with versions of liberalism and its institutional manifestations’ (p 3). Contributors to the book repeat versions of this claim (pp 24 & 34). What, then, are socialist values and socialist ‘forms of knowledge’? Fu Hualing and Jason Buhi note that what ‘classifies’ the Chinese and Vietnamese orders as socialist ‘is their self-identification’ (p 148). Others approach the ‘dichotomy’ of capitalism and socialism more cautiously (p 171). Michael Dowdle, for example, observes that ‘legal practices that are commonly equated with “socialist law” or “socialist legality” are not necessarily socialist in nature’, and ‘the mere deployment of these practices does not establish a country as a socialist state or polity’ (p 28).

Soviet jurists used to classify legal systems according to their underlying economic system. Superstructural legal concepts reflected the basic economic structure, which can be typified as capitalism or socialism.Footnote 4 This method tends to understate the similarities and overstate the differences between states and their legal systems. This is especially true of transitional socialist states like China and Vietnam, where capitalist cats are supposed to catch capitalist mice. Joseph Stiglitz recently described socialism not as a singular economic system, but as the subject of ‘a branding battle crossing political and generational divides’, in which socialism is set up as a counterpoint to the ‘myth’ of American capitalism as ‘an unfettered free-market system’.Footnote 5 An account of socialist values that simply generalizes from the values of states labelled ‘socialist’ will therefore only take us so far, as many contributors to this book observe. The book thus invites us to ask not only ‘what is Asian about these socialisms?’, but also ‘what is socialist?’

With this in mind, the editors sensibly devote a section of the book to consider what is socialist about socialist law. The section, however, contains only one chapter: a short but important piece by Dowdle. The chapter identifies socialism by process of elimination: it asks what socialism is not. Dowdle sets out a brief history of the ideas of some early (western European) socialists and defines socialism as a set of claims originating in these ideas. Drawing on this survey, he suggests ‘a number of core concerns of socialism’ (p 27). He says socialism ‘emerged out of a concern for a particular kind of injustice’, namely the ‘moral implications of material inequality’ (p 27). Because socialism is a set of ‘moral claims’, and because ‘morality knows no geography’, so its values are ‘not conditioned by physical borders’ (p 27). Dowdle takes issue with the exploitation of labour by the state, even if this is intended to promote material equality or to ensure the survival of the state (p 31). He distinguishes socialism from Leninism on similar grounds. If Leninism – ‘the political side of state capitalism’ – is exploitative, then it is not ‘socialist in fact’ (p 32).

We can question this method. For example, if this is a justified account of socialism, then the historical origin of these ideas does not matter. Moral concern about material inequality is not limited to China and Vietnam, nor is it limited to any particular time or place or author. Because Dowdle arrives at these principles by way of history rather than philosophy, via Saint-Simon and Marx, we are left with the justifying to do. Briefly, the socialism set out here is concerned with at least two sorts of moral wrongs: labour exploitation and material inequality. These are separate sorts of moral wrongs. A society where vital resources are unequally shared could be a bad society even if it were not exploitative, and, as Dowdle notes, a society can exploit its members in order to promote material equality. A justified account of socialism would need to consider how these two values relate to one another. But these are not the only important values for a socialist legal order. We are left wondering how they relate to other values, including material development and security. For socialist states such as China and Vietnam, the order of priority granted to values such as development and equality is no mere abstraction.

Dowdle's chapter is therefore a good point of departure for an inquiry into the aims of a socialist legal system. However, it leaves some important questions unanswered, and many of these questions are crucial to the overall framing of the book. In particular, a fuller inquiry into what makes socialist law socialist would give us a clearer standpoint from which to select socialist concepts, and from which to evaluate those concepts.

In January 2016, the Vice Dean of Peking University Law School, Shen Kui spoke out against a campaign to suppress ‘Western’ ideas in Chinese law schools. Responding to a conference presentation by Education Minister Yuan Guiren, Professor Shen asked whether it was possible to distinguish Western and Chinese values. He said:

Professor Shen is saying we should not assume that Western values are liberal values, but there is a sharper edge to his remark. This is not a wry observation about intellectual history: it is a challenge to people who wish to insulate socialist ideas from intellectual critique. It is also a reminder that a liberal critique of socialist ideas can draw on Marxist values as well as liberal ones.

III. SOCIALIST INSTITUTIONS

Even if we do not agree that China and Vietnam share common values, we can hopefully agree that they share common institutions. For Fu and Buhi, what separates Asian constitutional orders from European ones is their Leninist political structure. This is a structure in which the Communist Party can ‘monopolise political and military power, institutionalise democratic centralism and prohibit threatening discourse’ (p 148). But what does it mean to ‘institutionalise’ socialist values? As with values, we can label the constitutional structures of some states ‘socialist’, but if we wish to claim that these institutions are structurally related to socialism, then there is more to say.

The editors tell us that ‘questions about the particular legal and institutional arrangements required of a socialist state … were peripheral to the socialist theories of the nineteenth century’ (p 6). We might take issue with this claim, not least because nineteenth century socialism was a practice as well as a theory. The Paris Communards grappled with the institutional challenges of socialism, and, in The Civil War in France, Karl Marx grappled with their grappling.Footnote 7 By the turn of the twentieth century, socialist legal theorists said that their institutions were the only authentic and effective embodiment of socialist values. Lenin's April Theses said that the state form of the proletarian dictatorship must be a Soviet Republic, as distinct from a parliamentary democracy.Footnote 8 The idea that socialist values could only be embodied in a particular socialist set of institutions ultimately came to be a point of dogma, from which orthodox legal theorists in socialist states could not retreat.

Some contributors to this book argue that statism is a cardinal feature of Chinese and Vietnamese socialism, and the motive force behind their economic development.Footnote 9 Perhaps ideas such as democratic centralism, and the Leninist conception of party leadership, ultimately reflect the degree of étatisation of the constitutional order?Footnote 10 Perhaps socialism demands a strong state to promote material equality by means such as fiscal redistribution? Perhaps the intercession of a strong state is the most effective way to fight labour exploitation? But again, we are left wondering if the strong state institutions in China and Vietnam are necessary and socialist, or whether they are contingent and authoritarian. Fu and Buhi give a cautious answer to this question. They note that China and Vietnam have a ‘high implementation capacity’ (p 141), but they stop short of making an explicit connection to socialist institutions. They say Leninist structures ‘need not undercut’ the strong state, although they perpetuate other problems (p 141).

William Partlett's chapter comes closest to arguing for a connection between socialist institutions and socialist values. He explores the socialist concept of legal supervision, performed by one distinctive Leninist institution – the Procuracy. The supervisory role of the Procuracy ‘is a reflection of how the institutional organisation of the socialist legal system is in tension with Western conceptions of separated powers’ (p 21).

In China, since Xi Jinping came to power, supervision has taken on a new importance. This expansion has taken place at the expense of the Procuratorate, which was never the only organ of executive self-supervision, nor even the most important one.Footnote 11 In 2018, while this book was being prepared, the Central Discipline and Inspection Commission and the Ministry of Supervision were overlaid with another organ, the Supervision Commission. As Partlett notes, these bodies are supposed to be centripetal. They operate at the direction of the party centre, and one thing they supervise is misinterpreting instructions from the Centre.Footnote 12 Partlett describes supervision as a bulwark to protect individuals from ‘bureaucratic lawlessness’ (p 62). At best, the law in question is seen from the point of view of the Centre. But not all orders from the Centre are legal, or even lawful, orders. Supervision blurs the line between illegality and indiscipline.Footnote 13

Partlett reports that the Venice Commission raised serious concerns regarding the compatibility of the Procuracy with democracy and the rule of law. However, he does not discuss these concerns, or their implications for legality. Instead, he reframes the apparent inconsistency as a ‘tension’ (p 70). He recites a Russian defence of supervision, on grounds of ‘legality’, ‘unity’, and ‘objective realit[y]’ (p 65). He describes the Procuracy as ‘an important lever for ensuring state control over the potentially centrifugal forces of capitalism and persistent administrative illegality’ (p 70). He says socialist supervision ‘ultimately frustrated the judicial monopoly over the review of legality and challenged Western conceptions of judicial power’ and ‘helped to re-energise politicised methods of ensuring legality’ (p 70). He concludes that ‘bureaucratised and political control of legality … exists alongside, and in some tension with, independent and binding judicial enforcement of legality’ (p 70).

A key objective of the chapter is therefore to challenge the claim ‘that the legal tradition and idea of law was weak in Russia, and later in the Soviet Union’ as ‘ahistorical’ (p 37). But that depends on what we mean by weak. The claim that law and legal thought were absent in either tradition would be a crass overstatement. But perhaps supervisory institutions weakened distinctively legal forms of social control? Perhaps, though labelled as legal, these institutions were at best peripheral examples of legality? A satisfying answer to these questions requires a more explicitly evaluative assessment of the relationship between legality and socialist legality. We turn to that assessment in the final section.

IV. SOCIALIST LAW?

This book is descriptive and evaluative. It seeks to explain the current importance of socialist ideas, and to explore the genealogy of those ideas. It also seeks to critique those ideas, and to explore their coherence and their value. The two dimensions of this task pose separate challenges.

The descriptive argument in this book is that we need to understand socialism to understand legal institutions in East Asia. It can be hard to describe socialist legal ideas because they are presented to us with intermittent sincerity. The party's account of socialist law is a treacherous guide to its true nature and true objectives. The irony, and at times the hypocrisy, of official ideology in socialist states do not assist the comparative lawyer in her task.

In 1949, Lon Fuller wrote a review article comparing the ideas of Pashukanis and Vyshinsky (whose joint influence is thoughtfully considered by Partlett). Fuller describes these works as ‘miscellaneous ingredients, compounded in the greatest disorder’.Footnote 14 On Vyshinsky's The Law of the Soviet State, he said:

With this in mind, Fu, Gillespie, Nicholson, and Partlett's book does a commendable job both of explaining concepts such as socialist legality and democratic centralism, showing why and to what extent they are different, tracing their lineage, and then investigating their influence on current developments in Chinese and Vietnamese law. Sarah Biddulph's chapter on Democratic Centralism and Administration in China is a particularly impressive example, as is Tiffert's fascinating chapter on Socialist Rule of Law with Chinese Characteristics. But no one with knowledge of China or Vietnam would deny that we need to understand socialism to understand legal institutions in those states. This book provides a lucid and elegant exposition of the anatomy and genealogy of socialist law, but its descriptive claim sets us looking for something that we already know to be there.

However, the book has a wider critical ambition. In the opening chapter, the editors set out their intention to ‘treat socialist thought and institutions as subjects worthy of study in their own right’ (p 20). The preface describes the book as a ‘fresh theoretical approach to and internal critique of socialist laws’ (front matter). Their vision of socialist law is alleged to be compatible with capitalism but not with legal liberalism, as embodied by judicial independence, the autonomy of civil society, and the ‘political neutrality of state organs’ (p 20). The book asks whether socialist legality has a ‘continuing normative traction’ (p 20). The editors hint at an answer when they suggest that Asian socialism ‘may shape the future of global legal development among developing nations’ (front matter).

If we wish to account for the ‘normative traction’ of socialist values and institutions, which is to say, whether people have good reasons to endorse them, then we need to evaluate these ideas. We need to ask whether the values are coherent and desirable, whether the institutions truly embody the values, and whether they produce good outcomes, among many other questions. So far as the book addresses these questions, it does so hesitantly.

In particular, it is not immediately clear what is internal about its ‘internal critique’. The point would appear to be that the critique should proceed from East Asian socialist values rather than Western values. Donald Clarke criticizes scholarship that measure China using the yardstick of idealized Western values.Footnote 16 For Clarke, such scholarship fails to compare like with like, and in its idealism it celebrates prejudice and assumption. But as Shen Kui argues, if the boundary between socialism and Western values exists at all, it is difficult to draw. When we question the self-identified socialism of these two states, whose socialism underpins our internal critique?

An alternative is scholarship grounded on the values of the jurisdiction in question. But, as we have seen, the problem with this approach is that the label does not necessarily match the substance. Moreover, if our conception of socialism is based on the doctrines and political institutions of states that call themselves socialist, then why not include North Korea and Cambodia, not to mention social democracies? A further alternative is to supply a justified account of socialism, hence the question ‘what makes socialist law socialist?’ As we have seen, that would require a fuller exploration of the values served by socialism, and how those values can be instantiated in legal structures. The contributors to this book are not generally of the view that Vietnamese and Chinese law promote material equality or prevent exploitation.

One pressing question, which deserves fuller treatment, is the potential overlap between socialist and liberal legality. In its opening paragraphs, the book claims that, since the collapse of the Berlin Wall, the ‘liberal legal scholarship’ on socialist Asia has ‘devalued and dismissed socialist institutions, legal theories and forms of knowledge’, and ‘marginalised the ongoing normative and structural legacy of Asian Socialism’ (p 3). Later, we are reminded that ‘scholars’ have ‘largely ignored the ramifications of the continued commitment to socialist law and legal institutions’ (p 21). This supposed scholarly myopia justifies the search for socialism in socialist East Asia. However, these liberal legal scholars are never called out by name, and their works are not identified.

Liberal scholars have not ignored socialism; certainly not liberal scholars writing in China, whose general aim is to challenge what they see as an attenuated version of liberal legality.Footnote 17 We might describe some of those scholars as East Asian socialists. Neither is this generally true of liberal scholarship outside China. Socialist theories of law have been carefully examined and vigorously challenged, not least in the immediate post-war period. Perhaps the critique of socialist institutions from liberal premises has become so thoroughly internalized that we no longer feel the need to invoke it explicitly. Fuller, for example, did not dismiss Marxism – not at any rate in an article entitled … A Study in the Development of Marxian Legal Theory.Footnote 18 He did not ignore socialist legal theory so much as disagree with it. He asked whether this particular socialism could be reconciled with the only legality he knew, and found that it could not.