Atlantic: How a Nazi jurist inspired ‘statists’ in China

If you followed the situation in Hong Kong over the past year then you already know that China’s new national security law essentially put an end to civil rights there, at least the right to say or do anything in opposition to the mainland. That crackdown had a foundation in a growing consensus within China that the state has the right to use whatever means are necessary to protect itself from outside threats. And as it happens those are exactly the kind of threats many Chinese intellectuals claimed were present in Hong Kong:

“Since Hong Kong’s handover,” Wang Zhenmin, a law professor at Tsinghua University, one of China’s most prestigious institutions, wrote in People’s Daily, “numerous incidents have posed serious threats to Hong Kong’s prosperity and stability.” The city, Wang was effectively arguing, was in no position to discuss civil liberties when its basic survival was on the line. Qi Pengfei, a specialist on Hong Kong at Renmin University, echoed those sentiments, insisting that the security law was meant to protect the island from the “infiltration of foreign forces.” In articles, interviews, and news conferences throughout the summer, scores of academics made a similar case.

This view of Hong Kong is extremely convenient for mainland China but it does not come out of the ether. As author Chang Che points out in the Atlantic, it is a growing movement within Chinese academic circles. The group are referred to as “statists” and their fundamental belief is that “Stability overrides all else.” This view of the state didn’t coalesce out of the ether. It was picked up from a German jurist named Carl Schmitt:

Known as Hitler’s “Crown Jurist,” Schmitt joined the National Socialist Party in 1933, and, though he was only officially a Nazi Party member for three years, his anti-liberal jurisprudence had a lasting impact—at the time, by helping to justify Hitler’s extrajudicial killings of Jews and political opponents, and then long afterward. Whereas liberal scholars view the rule of law as the final authority on value conflicts, Schmitt believed that the sovereign should always have the final say. Commitments to the rule for law would only undercut a community’s decision-making power, and “deprive state and politics of their specific meaning.” Such a hamstrung state, according to Schmitt, could not protect its own citizens from external enemies.

There’s a detailed biography of Schmitt available at the Stanford Encyclopedia of Philosophy. Here’s a sample of his views on the power of a sovereign to suspend the law in a “state of exception,” i.e. an abnormal situation.

No legal norm, in Schmitt’s view, can govern an extreme case of emergency or an absolute state of exception. In a completely abnormal situation, the continued application of the law through the normal administrative and judiciary channels is going to lead to haphazard and unpredictable results, while preventing effective action to end the emergency (PT 13; GU 44–114; Scheuerman 1996; Hofmann 2002, 17–33). If the applicability of material legal norms presupposes a condition of normality, Schmitt assumes, a polity must be entitled to decide whether to suspend the application of its law on the ground that the situation is abnormal. Hence Schmitt’s famous definition of sovereignty, according to which the sovereign is he who decides on the state of exception: If there is some person or institution, in a given polity, capable of bringing about a total suspension of the law and then to use extra-legal force to normalize the situation, then that person or institution is the sovereign in that polity (PT 5). Any legal order, Schmitt bluntly concludes, is based on a sovereign decision and not on a legal norm (PT 10, 12–3).

While this view obviously seems to lend itself to tyranny, Schmitt believed that it was in fact based upon a kind of democracy, albeit one in which the sovereign would act according to the supposed will of the people:

…the relation between sovereignty and dictatorship changed in the French revolution. The revolutionary governments relied heavily on dictatorial action to create a new situation of normality that would allow a new constitution to come into force. The revolutionary governments, like the absolutist sovereign, claimed the power to decide on the exception, but they did not claim to be sovereign. Rather, they claimed to exercise the authority to decide on the exception in the name of the French people, even while they were ruling the French people by the use of dictatorial methods (D 132–47). Sovereignty and dictatorship had become fused in the novel institution of sovereign dictatorship: A sovereign dictator is a dictator who does not defend an already existing constitution but attempts to create a new one and who does so not by his own authority but in the name of the people (D 112–31).

Schmitt’s work was translated into Chinese in the early 2000s and was praised by a law professor at Peking University named Chen Duanhong. Chen wrote about Hong Kong and became and adviser to the government on the topic. In 2018, Chen wrote a piece applying Schmitt’s thinking to Hong Kong’s situation:

“The German jurist Carl Schmitt,” he argued in an article, distinguishes between state norms and constitutional norms. “When the state is in dire peril,” Chen wrote, citing Schmitt, state leaders have the right to suspend constitutional norms, “especially provisions for civil rights.”

And Chen wasn’t alone:

Jiang Shigong, also a law professor at Peking University, has made a similar case. Jiang, who worked as a researcher in Beijing’s Liaison Office in Hong Kong from 2004 to 2008, employs Schmitt’s ideas extensively in his 2017 book, China’s Hong Kong, to resolve tensions between sovereignty and the rule of law in favor of the Communist Party.

The statism of Carl Schmitt is gaining legitimacy in China and the treatment of Hong Kong is an example of how it matters. Perhaps if it wasn’t Schmitt the statists would find something else to ground their views in. A one-party tyranny is probably going to act like a one-party tyranny whether it has a good reason or not. But Schmitt helps give the whole thing an air of academic legitimacy.

Chang Che concludes that even if China would have behaved illiberally anyway, the new statist impulse represents an important shift: “It marks a move from what had been an illiberal government in Beijing—one that flouts liberal norms as a matter of convenience—to an anti-liberal government—one that repudiates liberal norms as a matter of principle.”

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