Legal complicity in an age of resurgent authoritarianism

• Pages: 75-118
• Date: 01 January 2025
• Published date: 01 January 2025
• Author: Jedidiah J. Kroncke

Legal Complicity in an Age of Resurgent

Authoritarianism

JEDIDIAH J. KRONCKE*

ABSTRACT

Faith in end of history narratives emergent at the end of the twentieth century

carried powerful ethical implications for engagement with authoritarian

regimes. The most widespread of these narratives was modernization theory:

the idea that economic development would invariably lead to political democra-

tization or liberalization. Asserting this relationship offered up the alluring pos-

sibility that engagement with authoritarian regimes posed no ethical qualms of

complicity and only helped hurry such regimes towards their inexorable demise.

For lawyers from liberal nations, this possibility was especially seductive

exactly because they often assert their professions’ special links to promoting

liberal political values through a consonant logic of amoral professionalism.

Therefore, legal representation within and for authoritarian legal regimes was

absolved by virtue of the transformative future modernization theory promised.

No quick adoption of this stance was more evident than the post-1978 engage-

ment of American lawyers with the Chinese Communist Party.

Today, end of history narratives have succumbed to not only resilient author-

itarian regimes but also a global resurgence in authoritarian ideologies in lib-

eral regimes. Many authoritarian regimes have proven capable of sustained

economic development, even economic liberalization, while keeping democratic

institutions from forming or f‌lourishing. This development thus demands a renewed

examination of the ethics of legal engagement with authoritarian regimes,

especially as they have become deeply integrated into the world economy.

The American legal profession’s modern engagement with China is an acute case

of this renewed problematic, but only one example of a shared conundrum among

liberal legal professions worldwide.

Recursively, the challenges of authoritarian engagement are illustrative for

growing discontent concerning the fundamental empirical predicates of the amoral

civic virtues promised by liberal legal professions. Rising authoritarian ideologies

* Associate Professor of Law, The University of Hong Kong. The author would like to thank William

Alford, Jacque Delisle, David Dyzenhaus, Fu Hualing, Frank Upham, and Jerome Cohen for their critical

inputs, as well as the participants at conference “China’s Legal Construction Program at 40 Years” held at the

University of Michigan Law School and the Interdisciplinary Seminar at the HKU Institute for the Humanities

and Social Science. © 2025, Jedidiah J. Kroncke.

75

worldwide blur the line between foreign and domestic authoritarianism, as well as

foreign and domestic legal practice. Thus, the fall of modernization theory exposes

common issues regarding liberal legal professions’ regulatory autonomy—amid

growing doubts over their systemic independence from market forces and service

to democratic values.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

I. THE (CONTESTED) AMORALITY OF LAWYERS’ CIVIC VIRTUE. . 82

A. THE SOCIAL BARGAIN AND CONTROVERSIES OF

PROFESSIONAL AUTONOMY. . . . . . . . . . . . . . . . . . . . . . . 82

B. THE GLOBAL CRISIS IN LAWYERS’ CIVIC VIRTUES . . . . . 92

II. MODERNIZATION THEORY AS PROFESSIONAL ABSOLUTION . . . 95

A. THE ETHICS OF LAWYERING IN UNJUST SOCIETIES . . . . . 95

B. THE LEGAL DYNAMICS OF COLD WAR GLOBALIZATION . . 98

C. MODERNIZATION THEORY’S PROMISE OF ALL GOOD

THINGS TOGETHER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

D. CHINA FROM LEGAL PARIAH TO MODERNIZATION’S

CONVERT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

III. LEGAL HYPOCRISY IN AN AGE OF RESURGENT

AUTHORITARIANISM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

A. CHINA AND THE QUICK DEATH OF MODERNIZATION

THEORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

B. THE UNAVOIDABILITY OF LEGAL ETHICS’ EMPIRICAL

PREDICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

76 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 38:75

This belief promotes peace of mind. You do not have to face those troubling

questions: What is the public interest? How far should I push the client’s inter-

ests? How vigorously should I press public interest advice? Is my professional

life helping or hurting the world? How much risk of not making partner am I

willing to take? The moral life, nowadays, is likely to lead away from an

untroubled conscience—virtue is its own punishment.

- John Leubsdorf

1

The world as we know it.. .is falling apart under the weight of its contradictions.

- Arif Dirlik

2

INTRODUCTION

The end of the twentieth century was suffused with ideas that the tides of his-

tory had turned towards an inexorably brighter future for political liberalism. A

wide array of social and technological trends were cited as motor forces behind

various “end of history” narratives producing a world where global economic

integration, political liberalization, and general social progress were all on a

steady ascent. Such optimism was perhaps no more eagerly expressed in the col-

lection of thinkers and theories, broadly termed “modernization theory,” which

held out that economic development, even simply aggregate economic growth,

planted the irresistible seeds of political liberalization. Thus, while many coun-

tries had yet to succumb to the waves of democratization which had washed over

the twentieth-century world, this resistance was cast as both transitory and has-

tened along by their near universal embrace of economic globalization. Promoting

economic growth could therefore be turned into an all-encompassing rationale for

international engagement and inaugurated an era where public and private links

between nations set aside the binary divisions of the Cold War. Such logic also

side-stepped the concerns of those potentially troubled by the ethical implications

of engaging with illiberal regimes, even for the most avowedly prof‌it-seeking

endeavors.

A clear and accelerating adjunct to modernization theory were articulations

which emphasized the “rule of law” as one of the underlying causal mechanisms

linking economic and political development. Often with quite wide def‌initional

latitude, the rule of law was seen as capable of both facilitating economic growth

and creating the institutional pre-conditions for political liberalism. As such, this

vision contemplated liberal lawyers as another vector of modernization, while also

generating a corollary logic of ethical absolution for lawyers operating in regimes

that facially rejected their values.

1. Robert Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 64 n.228 (1988).

2. ARIF DIRLIK, COMPLICITIES: THE PRC IN GLOBAL CAPITALISM 1 (2017).

2025] LEGAL COMPLICITY 77