Authoritarian Legality in China examines the significance of rule of law for authoritarianism in China through the lens of labour law and workers’ legal mobilization. China's authoritarian legality is defined as the instrumental use of institutions with democratic lineage “to improve governance and structure newly permitted market institutions” (p. 30). Mary Gallagher's main argument in this book is that the Chinese government has passed labour legislation of high standards that encourage workers to mobilize to protect their rights, which substitutes for the government's lack of legal enforcement. Such incomplete adoption of legality is “jeopardizing both the resilience and the democratic convergence” (p. 38) of the Chinese state.
The core four empirical chapters examine the causes and consequences of workers’ rights consciousness and legal mobilization, the process of learning the law, the effects of workers’ mobilization and the limitations of China's legality. Gallagher uses a mixed-methods approach, and relies mainly on case histories, rich interview material from litigants, novel data from two multi-city surveys of labour issues, and two strike case studies. The statistical analysis of survey data is particularly illuminating concerning the role of education in workers’ legal mobilization but its assessment of the dispute resolution methods most used and deemed most effective is limited because it is based on respondents’ hypothetical choices instead of their actual labour dispute experience (pp. 156–57). An empirical shortcoming of the book is that it makes claims about the state's motivations, but first-hand empirical material from government officials or trade union officials is unfortunately largely absent (appearing only thrice in chapter six).
The book is based on a constitutive theory of law (p. 55), claiming that legal institutions constitute workers’ rights consciousness and mobilization. These institutions are labour legislation, the labour dispute resolution system, and the legal dissemination campaigns (pufa). Gallagher also acknowledges the effect of age (generation), life experience and political socialization (especially for SOE workers) on workers’ mobilization strategies (pp. 175–189), and shows that workers with better education and resources (i.e. legal representation) are essentially more rights conscious, confirming the elitist bias of law. However, this ignores the fact that many workers, regardless of their level of education and legal awareness, are able to identify workplace injustices – the problem is that these are perfectly legal. This focus on legal institutions overlooks the role of alternative normative or interpretative frames and the interaction between contemporary legal constructs with pre-existent legal cultures, in shaping workers’ rights consciousness. The analysis could have benefitted from considering the impact of, for example, the legacies of socialist law, classical legal traditions (i.e. lizhi, fazhi), informal norms and practices, social interactions on workers’ rights consciousness, or the structural and formal features of China's legal system (modelled on civil law), and the substantive nature of China's labour laws, including its capitalist underpinnings, besides individualization (pp. 70–77).
On the basis of rich empirical detail Gallagher identifies that legal users are disappointed with the system (“informed disenchantment”), and that non-users, younger workers and users with proper legal representation have more positive evaluations of the legal system. This is important because nurturing positive attitudes towards the legal system leads to trust and increased government legitimacy, as “part of a strategy to avoid democracy by supplying some functions of a legal system without the complementary institutions that accompany it in a liberal democracy” (p. 150). The most substantive contribution here is that workers’ legal mobilization substitutes for the lack of governmental legal enforcement, as “state-led citizen activism” (p. 116). This is attributed to the decentralized and fragmented political system, and lack of governmental resources (labour inspectorates). Yet, this explanation fails to note the politico-economic incentives for local governments not to enforce labour laws, which derive from their closeness to business's interests, and constitutes the real challenge for the government's legitimacy.
Gallagher argues that the incomplete institutionalization of legality (lack of enforcement and legal recognition of collective interests) leads to workers’ radicalization. She echoes appeals for further legislation and improved union representation and procedures as the only way to strive for collective interests (p. 196), overlooking the manifold sources of workers’ power and means to achieve collective interests. To Gallagher, incomplete legality becomes apparent for workers in the dissonance between law in the books and in practice (p. 30), leading to their radicalization. The underlying assumption here is that extra-legal actions such as strikes and protests occur because of the lack of legal enforcement, and once “bargaining, conciliation, and legal redress have been attempted but failed” (p. 199). This interpretation is misleading, because empirically we know that extra-legal action is taken for both rights and interest-based claims, and is combined with, precedes or even simply ignores legal procedures.
The book concludes that China's authoritarian legality politically “breed(s) instability and disappointment,” but “contributes neither to its authoritarian resilience nor to a gradual pathway of reform and political liberalization” (p. 59); economically, the improvement of its legal institutions is necessary for its development project to prevent the middle-income trap (p. 227). These conclusions are based on the assumption that rule of law is indivisible from democracy and economic prosperity, derived from Western liberal ideology and a thin theory of rule of law. On this note, one might ask what is analytically gained from using the blueprint of liberal democracies (namely, the US – incidentally a common law system) (e.g. pp. 108–109) to assess China's rule of law. A comparison with post-socialist, authoritarian or developmental states could have shed more light on the specificity of the case of China and its value for a general theory of authoritarian legality.
This book demonstrates the depth of Gallagher's expertise in the subject. I would warmly recommend it to those interested in law and governance in China. It lies within the disciplines of political science and law, and provides insightful empirical detail for China scholars interested in labour and law.
