The Global Implications of China’s Dual State Revival: a European Perspective

In this paper, I address the evolution of China’s constitutional order in Xi Jinping’s ‘New Era,’ in which the role and visibility of the Chinese Communist Party has been enhanced, while the role of law in limiting public power has been reduced. I draw on Fraenkel’s 1940 concept of the Dual State, a duality of coexisting normative and prerogative modes of governance, established to normalise ‘emergency’ exemptions from legality. First, discussing the implications of selected domestic developments, including the revisions of the Constitution, the crackdown on civil society, and the crackdown on ethnoreligious minorities in Xinjiang, I argue that the theory of the dual state challenges the claim that authoritarian governance reliant on law is per se valuable and that pursuit of the ideal of rule of law (fazhi) is possible in authoritarian systems. Second, I discuss the extent to which Dual State theory may help us understand the global implications of the systemic changes currently taking place in China, with a focus on the implications for liberal democracies in Europe. In the wake of Xi Jinping’s ‘Belt and Road Initiative,’ pro-Party legal scholarship has begun to emphasise the Party’s ‘dual mission’ for the rejuvenation of the Chinese nation, as well as the ‘shared future of humankind’. I argue that the planned export of authoritarian governance norms and practices presents a challenge at various levels, including that of international governance norms, mechanisms and institutions set up on the basis of liberal legal-political principles, such as the treaty mechanisms of the United Nations, and that of transnational civil society. The New Order Party-State’s explicit or implicit rejection of rationalist conceptions of law and justice, and its attempts to undermine the international human rights law order raise the question if China’s ‘going out’ strategies and practices may contribute to the emergence of a global dual order.