Democracy, Development and the Rule of Law: Rethinking Assumptions in China and Indonesia
Many people have long assumed that several good things go together. Democracy, development, and the Rule of Law are often taken at face value to have a deep and perhaps even necessary co-relationship: you can’t have one without the other two. But what about when you can? In fact, in most of the world most of the time, these good things do not go together.
I started off thinking about and beginning research for Ruling Before the Law when I was still finishing up The Chinese Worker after Socialism in 2006. But, in fact, it was not until one evening in Surabaya in 2009 that I realized my research on the politics of law and legal institutions across urban and rural China and Indonesia could be combined into a single study. Before, I’d always thought of two separate projects advancing on more or less parallel tracks. Once I made this realization, I became strongly attracted to doing the sort of “apples comparison” I’d often thought about but never assumed I’d attempt. Eventually, I ended up with a book that I hope will make at least as large an impact for its theoretical development and comparative method as it does to the study of the world’s most important authoritarian state and largest new democracy.
“…it was not until one evening in Surabaya in 2009 that I realized my research on the politics of law and legal institutions across urban and rural China and Indonesia could be combined into a single study. Before, I’d always thought of two separate projects advancing on more or less parallel tracks.”
In Maoist China and in Indonesia under Guided Democracy, we find what I call mobilizational legal regimes. Courts and legal institutions operate as tools or expressions of politics, while the set of politically empowered actors (or polity) is contested or in flux. In situations where the polity is fixed and settled, but powerful nonlegal actors choose to remain aloof from the legal process – in other words where sovereigns exist, but elect to allow courts and adjudication to proceed according to norms rather than exceptions – we find what I call “rule by law” regimes. These have existed in Chinese civil law in the Reform Era and in Indonesian criminal law since democratization in 1999. Finally, where the polity is fixed and hierarchies stable, but nonlegal actors intervene frequently or deeply into the adjudication of cases – as in Indonesian criminal and civil law during New Order and civil law since Reformasi, as well as in Chinese criminal law since 1978 – we see neotraditional legal regimes.
Looking at legal regimes this way across both China and Indonesia helps illuminate critical aspects of both countries’ politics and legal development. It also helps delineate more clearly several dimensions of legal regimes and to de-link conceptions of democracy, development, and legal system change. This helps us set aside crude, normative, and teleological visions of the rule of law. Hopefully this will promote new research on law and politics in settings and contexts more diverse than those where scholars have previously concentrated, and with more finely attuned perspectives than previously employed.