Julius Yam on Judging Under Authoritarianism (Modern Law Review)

"Judging Under Authoritarianism"
Julius Yam
Modern Law Review
Published online: December 2023

Abstract: Authoritarianism has significant implications for how judges should discharge their duties. How should judges committed to constitutionalism conduct themselves when under authoritarian pressure? To answer this question, the article proposes a two-step adjudicative framework, documents a variety of judicial strategies, and proposes how principles and strategies can and should be incorporated into the framework in different scenarios. The first step of the adjudicative framework involves judges identifying the ‘formal legal position’ while blindfolding themselves to extra-legal factors (such as potential authoritarian backlash). In the second step, depending on the level of risk incurred by maintaining the formal legal position, judges should lift the blindfold to check whether, and if so how, the formal legal position should be supplemented with or adjusted by judicial strategies. Through this analysis, the article offers a guide to judicial reasoning under authoritarianism.

New Book: The Oxford Handbook of Comparative Administrative Law (co-edited by Eric Ip)

The Oxford Handbook of Comparative Administrative Law

Edited by Peter Cane, Herwig C H Hofmann, Eric C Ip, and Peter L Lindseth

Oxford University Press

Published in December 2020

1,168 pp.

Abstract: The comparative study of administrative law has a long history dating back more than 200 years. It has enjoyed a renaissance in the past 15 years or so and now sits alongside fields such as comparative constitutional law and global administrative law as a well-established area of scholarly research. This book is the first to provide a broad and systematic view of the subject both in terms of the topics covered and the legal traditions surveyed. In its various parts it surveys the historical beginnings of comparative administrative law scholarship, discusses important methodological issues, examines the relationship between administrative law and regime type, analyses basic concepts such as 'administrative power' and 'accountability', and deals with the creation, functions, and control of administrative power, and values of administration. The final part looks to the future of this young sub-discipline.
     In this volume, distinguished experts and leaders in the field discuss a wide range of issues in administrative law from a comparative perspective. Administrative law is concerned with the conferral, nature, exercise, and legal control of administrative (or 'executive') governmental power. It has close links with other areas of 'public law', notably constitutional law and international law. It is of great interest and importance not only to lawyers but also to students of politics, government, and public policy. Studying public law comparatively helps to identify both similarities and differences between the way government power and its control is managed in different countries and legal traditions.

    HKU Law colleagues contributed to three chapters of this important work co-edited by Eric Ip: Ch 4 "A Chinese Tradition" by Albert Chen, Ch 14 "Parliamentary Regimes" by Eric Ip, and Ch 17 "Authoritarian Regimes" by Po Jen Yap.

New Volume of Hong Kong Journal of Law and Public Affairs on Militant Democracy and Constitutionalism

HONG KONG JOURNAL OF LAW AND PUBLIC AFFAIRS

2020, Volume 2

MILITANT DEMOCRACY AND CONSTITUTIONALISM

The Government and Laws Committee, The University of Hong Kong (GLC) is pleased to officially unveil the Second Volume (2020) of the Hong Kong Journal of Law and Public Affairs (HKJLPA), the official annual journal of the GLC. The volume is titled “Militant Democracy and Constitutionalism”.

ABOUT THE VOLUME

The Second Volume 2020 of the Hong Kong Journal of Law and Public Affairs, published in Fall 2020, is entitled “Militant Democracy and Constitutionalism”.

     The end of Cold War has once endowed the world with optimism that the End of History has finally arrived. However, the rise of populist leaders with little regard to democratic norms, authoritarians which harness the constitutional toolbox to subvert democratic processes and an unprecedented invocation of emergency powers to combat the COVID-19 pandemic have all but blossomed into a siege against Constitutional Democracies on a global scale. This timely Volume, situated against the backdrop of global constitutional backsliding, features essays from leading political scientists and constitutional scholars. It discusses one of the possible countermeasures of democratic self-defence that has existed since 1937 – militant democracy and militant constitutionalism.

     In addition, this Second Volume is graced with a case commentary on Miller (No.2), two interviews with leading constitutional lawyers Professor Andrew J Harding and Dr Tonio Borg, and two author interviews conducted with Professor Joel Colón-Ríos and Dr Eric C Ip on their new books. It ends, as usual, with a review of the Government and Laws Committee's initiatives and publications over the past academic year.

OBTAINING A COPY

You may access the online copy here at: http://www.hkuglc.org/government-and-laws-committee-hku-hkjlpa

ABOUT HKJLPA

The Hong Kong Journal of Law and Public Affairs (HKJLPA) is the first English language studentedited journal in law and political science in East Asia, published by the Government and Laws Committee, The University of Hong Kong (GLC) since 2019, in restoration of the student-edited Hong Kong University Law Journal (1926-1927), founded by Professor George Keeton (1902-1989), the first Lecturer of Political Science and Jurisprudence and Reader of Law and Politics at HKU, and later Dean of Laws and Vice Provost at University College London (UCL).

     Supported by an International Editorial Advisory Board consisting of distinguished scholars, HKJLPA publishes articles in the English language from researchers, teachers, practitioners, and students all over the world. It accepts submissions in all areas broadly related to the intersection between law and politics, including but not limited to comparative constitutional law and politics, international law and relations, jurisprudence and political philosophy, and administrative law and public administration.

     As the GLC’s flagship publication backed by the HKU Government and Laws Programme, HKJLPA is committed to promoting a stronger understanding of cutting-edge issues that lie at the nexus of law and politics at the international and domestic levels, and to offering a robust platform for the exploration of ideas that will guide how societies are organised and governed.

Stephen Thomson & Eric Ip on COVID-19 Emergency Measures and the Impending Authoritarian Pandemic (J of L & Biosciences)

"COVID-19 emergency measures and the impending authoritarian pandemic"

Stephen Thomson & Eric Ip 

Journal of Law and the Biosciences 

Published 29 September 2020

Abstract: COVID-19 has brought the world grinding to a halt. As of early August 2020, the greatest public health emergency of the century thus far has registered almost 20 million infected people and claimed over 730,000 lives across all inhabited continents, bringing public health systems to their knees, and causing shutdowns of borders and lockdowns of cities, regions, and even nations unprecedented in the modern era. Yet, as this Article demonstrates—with diverse examples drawn from across the world—there are unmistakable regressions into authoritarianism in governmental efforts to contain the virus. Despite the unprecedented nature of this challenge, there is no sound justification for systemic erosion of rights-protective democratic ideals and institutions beyond that which is strictly demanded by the exigencies of the pandemic. A Wuhan-inspired all-or-nothing approach to viral containment sets a dangerous precedent for future pandemics and disasters, with the global copycat response indicating an impending ‘pandemic’ of a different sort, that of authoritarianization. With a gratuitous toll being inflicted on democracy, civil liberties, fundamental freedoms, healthcare ethics, and human dignity, this has the potential to unleash humanitarian crises no less devastating than COVID-19 in the long run.  Click here to read the full article.

New Book: Authoritarian Legality in Asia Formation, Development and Transition (CUP)

Authoritarian Legality in Asia: Formation, Development and Transition

Edited by Weitseng Chen and Hualing Fu

Cambridge University Press

July 2020, 500 pages

Description: A cluster of Asian states are well-known for their authoritarian legality while having been able to achieve remarkable economic growth. Why would an authoritarian regime seek or tolerate a significant degree of legality and how has such type of legality been made possible in Asia? Would a transition towards a liberal, democratic system eventually take place and, if so, what kind of post-transition struggles are likely to be experienced? This book compares the past and current experiences of China, Hong Kong, South Korea, Japan, Taiwan, Singapore, and Vietnam and offers a comparative framework for readers to conduct a theoretical dialogue with the orthodox conception of liberal democracy and the rule of law.

• Provides a comparative perspective of authoritarian legality to enrich the understanding of legality and liberal rule of law and democracy
• Introduces an intra-Asia comparison approach that provides a new set of metrics for evaluating legal reforms in authoritarian countries such as China
• Explores various phases of authoritarian legality development and discusses not only the transition of authoritarian legality but also the post-transition struggles in various countries

Editors

Weitseng Chen is Associate Professor at the National University of Singapore (NUS) Faculty of Law and Deputy Director at the NUS Center for Asian Legal Studies. He specializes in comparative Chinese law within greater China as well as law and development in East Asia. Before joining NUS Faculty of Law, he was Hewlett Fellow of the Center on Democracy, Development and the Rule of Law at Stanford University and also practiced as a corporate lawyer at Davis Polk & Wardwell.

     Hualing Fu holds the Warren Chan Professorship in Human Rights and Responsibilities at The University of Hong Kong, Faculty of Law and is Interim Dean of The University of Hong Kong Faculty of Law. He specializes in constitutional law and human rights with a particular focus on the Chinese criminal justice system, Chinese media law and land law. Other areas of research include the constitutional status of Hong Kong and its legal relations with China. He has previously taught at the City University of Hong Kong, University of Washington, New York University and University of Pennsylvania.

Contributors

Weitseng Chen, Hualing Fu, Jacques deLisle, Michael Dowdle, Eva Pils, Thomas E. Kellogg, Richard Cullen, David Campbell, Michael C. Davis, Kevin Y. L. Tan, Tom Ginsburg, Do Hai Ha, Pip Nicholson, Jianlin Chen, Yen-Tu Su, Koichi Nakano, Erik Mobrand

Roderick Hills and Shitong Qiao on "Binding Leviathan: Credible Commitment in an Authoritarian Regime" (Minnesota L Rev)

"Binding Leviathan: Credible Commitment in an Authoritarian Regime"

Roderick M Hills Jr and Shitong Qiao
Minnesota Law Review 
Apr 2018, Vol. 102 Issue 4, pp. 1591-161

Abstract: The problem of credible commitment dogs every government, whether democratic or authoritarian. Authoritarian bureaucracies face special credible commitment problems. Fear that local officials will build up a local power base has historically induced the leadership of China, Imperial and Communist alike, to frequently transfer local officials among subnational jurisdictions. Such frequent transfers undermine those officials' capacity to make the credible commitments that officials with more stable tenure can make with ease. Moreover, authoritarian regimes discourage the development of independent institutions--like investor-owned banks or locally elected legislatures--that are independent from local executive officials and that might otherwise act as monitors and enforcers of long-term commitments. We describe how these problems of credible commitment posed by China's cadre transfer policy and, more generally, the Chinese Communist Party's distrust of divided power lead to excessive municipal debt in China. We also propose three new institutional solutions for resolving the credible commitment problem of China's authoritarian regime. In the end, we conclude that there is no magical solution that can reassure stakeholders, such as lenders or home buyers, that an autocratic mayor will follow through on his or her promises. All of our proposed solutions, however, trade on the intuition that even modest institutional limits on power, compatible with China's one-party system of democratic centralism, can mitigate the problem of powerlessness ironically created by authoritarian power.  Click here to download the full article.