Legality and Socialist Legality

Date: Nov. 24th (Fr)

Time: 2pm-3.30pm

Venue: PCL 054

Legality and Socialist Legality

Recent works have described law in China as “socialist legality” or “authoritarian legality.” The paper argues that this demands an eccentric account of legality, an attenuated account of authoritarianism, or both. Drawing on Party doctrine and socialist legal theory, it highlights two enduring ideas in this new theory of legality – the claim that law is not supreme and the claim that it is not distinctive. These ideas are often underplayed in many formative accounts in the liberal canon, and occasionally omitted altogether. A satisfying account of the rule of law ought to begin with the antithesis of these two claims and incorporate the supremacy and distinctiveness of law.  However, that position presents challenges for liberal theories that conceive of the rule of law as a theory about how law makes the difference it purports to make. The article explains how legality came to be understood as something that can be reconciled with authoritarianism and highlights the consequences of this misstep. It questions the claim that legality is a coherent doctrine and that is conceptually distinct from other constitutional values and suggests a way forward.

Short bio of speaker:

Dr Ewan Smith joined UCL Law School as Associate Professor of Public Law in 2022. Prior to that he was a Fellow of Christ Church, Oxford, the Shaw Foundation Junior Research Fellow at Jesus College, Oxford, and an Early Career Fellow at the Bonavero Institute of Human Rights. Ewan read law at Oxford, at the University of Paris and at Harvard Law School. He has previously worked at Peking, Tsinghua and Renmin Universities in China and at the National University of Singapore. He is admitted to practice in New York, where he worked for Debevoise and Plimpton LLP. Between 2005 and 2015, he worked for the Foreign Office.  Ewan was a Hauser Fellow at New York University Law School in 2023. In 2024, he will be a Visiting Professor at the University of Bologna.

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