The Autocrat’s Moral-Legal Dilemma: Popular Morality and Legal Institutions in China

• Published date: 01 May 2021
• Author: Iza Ding,Jeffrey Javed
• Date: 01 May 2021
• DOI: 10.1177/0010414020957694
• Subject Matter: Articles

https://doi.org/10.1177/0010414020957694

Comparative Political Studies

2021, Vol. 54(6) 989 –1022

© The Author(s) 2020

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DOI: 10.1177/0010414020957694

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Article

The Autocrat’s Moral-

Legal Dilemma: Popular

Morality and Legal

Institutions in China

Iza Ding1 and Jeffrey Javed2

Abstract

Authoritarian regimes sometimes professionalize their legal systems to govern

more effectively. Yet when quasi-autonomous courts rule in contradiction

to popular conceptions of right and wrong—popular morality—it might

threaten citizens’ trust in the regime. We use the case of contemporary

China to investigate this “moral-legal dilemma”—the competing needs of

legal development and the satisfaction of popular justice concerns. Four

case studies demonstrate that when court rulings conflict with popular

morality, the party-state selectively alters decisions, so long as intervention

does not significantly jeopardize the integrity of the legal system. Two online

survey experiments then assess citizens’ reactions to moral-legal conflict

in court rulings. We find that people are more likely to experience “moral

dissonance” when legal decisions conflict with popular morality. We do

not find that moral-legal conflict in court rulings significantly undermines

individuals’ trust in the regime. Our analysis underscores the need for more

attention to the moral foundations of authoritarian rule.

Keywords

morality, rule of law, courts, institutions, authoritarianism, China

1Department of Political Science, University of Pittsburgh, Pittsburgh, PA, USA

2Former Postdoctoral Fellow, Lieberthal-Rogel Center for Chinese Studies, University of

Michigan, Ann Arbor, MI, USA

Corresponding Author:

Iza Ding, Department of Political Science, University of Pittsburgh, 4813 Wesley W. Posvar

Hall, Pittsburgh, PA 15260, USA.

Email: yud30@pitt.edu

957694CPSXXX10.1177/0010414020957694Comparative Political StudiesDing and Javed

research-article2020

990 Comparative Political Studies 54(6)

A major barrier to the development of the rule of law in authoritarian

regimes is that their courts lack political independence. Yet many such

regimes still build comprehensive legal systems to promote domestic mar-

kets, attract international capital investment, and resolve societal disputes

(Moustafa, 2007; Peerenboom, 2002; Wang, 2014). So long as disputes do

not directly threaten the regime, it can be more efficient to leave their resolu-

tion in the hands of a professional, autonomous, and quasi-independent judi-

ciary (Hurst, 2018). Even with politically sensitive decisions such as criminal

prosecution of official corruption, the use of formal legal institutions can

make state decisions appear more legitimate because they seem rule-based

(Ginsburg & Moustafa, 2008).

Legal development, however, may generate challenges to an authoritarian

regime that might not appear under a democracy. In democracies, public dis-

approval of court decisions may undermine popular support for the courts

(Hoekstra, 2000) or, in more extreme instances, the courts’ institutional legit-

imacy (Bartels & Johnston 2013; cf. Bonneau et al., 2017; Gibson & Nelson,

2015). Yet even if citizens deem court decisions unjust, studies show that this

dissatisfaction does not make citizens reject the legitimacy of the democratic

regime itself (Kirkpatrick, 2008).1

In authoritarian regimes, the stakes of unpopular legal decisions are poten-

tially far higher. Since the judiciary in an authoritarian system is widely

understood to be not fully autonomous, much less politically independent,

citizens may expect the regime to intervene and overturn unpopular deci-

sions; they may even withhold support for the regime if it fails to do so. Thus,

public outrage over seemingly unjust legal decisions may extend beyond the

judiciary and threaten the popularity of the regime itself.

This raises a number of questions: Do citizens living under authoritarian

rule expect that their visions of right and wrong—popular morality—will be

upheld by the legal system and its institutions? When legal decisions conflict

with popular morality, will citizens lose trust in the regime—since they are

aware that the regime is capable of overturning unpopular legal decisions?

When the regime confronts unpopular court decisions, does it bend to the

popular will? Or do concerns with legal integrity take precedence over wor-

ries about regime popularity?

In this study, we investigate what we call the autocrat’s moral-legal

dilemma. On one hand, a modern legal system helps the regime govern more

efficiently and effectively—and potentially reap the benefits of popular sup-

port through improved governance and economic performance. On the other

hand, the regime might lose support if it does not affirmatively intervene to

overturn well-publicized and widely unpopular legal judgments rendered by

its judiciary. As a result, authoritarian regimes face a real dilemma: they can

Ding and Javed 991

either intervene to alter legal decisions that have triggered popular backlash,

and therefore portray themselves as defenders of popular visions of morality,

but bearing a real cost to the integrity of the legal system itself; or they can

refrain from such intervention to maintain the institutional integrity of the

legal system, but risk a decline in their popular support.

We investigate the autocrat’s moral-legal dilemma in China—a develop-

mental authoritarian regime which has gone to great lengths to build popular

political support (e.g., Dickson, 2016; Tang, 2016). Since the 1980s, China has

seen the substantial development of a formal legal system from something

close to a blank slate. Drawing on its imperial-historical codes and practices,

borrowing from Japan and the West, and staffed by professionally trained

attorneys and judges, China’s legal system has tended toward a “partial rule of

law” (Peerenboom, 2002; Wang, 2014). At the same time, the rise of the

Internet and social media has placed the state under intense public scrutiny,

and popular platforms like Weibo have allowed netizens to engage in heated

public debates—which often include views that do not align with government

decisions—that can rapidly reach a national if not global audience.

Specifically, when formal legal decisions contradict popular notions of

right and wrong, they often trigger strong public outcries, some of which can

potentially erode popular trust in the regime. Therefore, the party-state often

attempts to address and satisfy the moral demands of its citizenry by inter-

vening in legal cases that have caused popular backlash, usually because of a

perceived incongruity between the court’s ruling and popular moral values.

This phenomenon is documented in the legal literature on China as “judicial

populism” (Belkin, 2018; Liebman, 2011).

We take two steps to explore the moral-legal dilemma in China. First,

through an analysis of four highly salient court cases in recent years, we show

that the party-state is indeed aware of the moral-legal dilemma we highlight

here, and sometimes intervenes to accommodate popular morality when legal

decisions that are perceived to be unjust elicit public moral outcry. However,

we find that such responsiveness is selective. Lack of regime intervention in

two of the four cases suggests that “judicial populism” is pragmatic: the

regime intervenes to alter legal decisions so long as such intervention does

not jeopardize the long-term integrity of the legal system.

Second, we test whether moral-legal tensions in court decisions impinge

on popular support for the regime—do citizens get upset when specific legal

rulings violate their visions of right and wrong? And does this make them

lose trust in the regime and its institutions? To assess whether the regime’s

sensitivities concerning moral-legal conflicts are justified, we conduct an

online survey experiment of 1,048 Chinese citizens. We test whether an

incongruence between specific court decisions and popular morality erodes