What are we to make of all these improbable but tangible experiments in the field of digital communications? Do they have a broader significance? They arguably do, if only because they serve as reminders that the new despotisms are not straightforwardly censorious systems of brute power grounded in violence. These systems are undoubtedly dead set against power-sharing monitory democracy, in the richest sense of free and fair general elections combined with ongoing public monitoring of power by independent watchdog mechanisms. Despots treat more than a few topics as ticklish or taboo. Open public criticism and resistance to the ruling institutions and their leading figures are risky. Fair-minded analyses of “sensitive” topics, such as Putin’s hidden wealth, Xinjiang detention camps, and the murder of journalists in Turkey, are banned. And all the official don’ts are backed by pre-digital methods: early-morning swoops by plainclothes police known as “interceptors”; lengthy interrogations of suspects; hostage-taking of relatives; rigged court trials and imprisonment; violent beatings by unidentified thugs; trolls, torture, murder, and bodily dismemberment.
But these forms of top-down control and censorship are not the whole story, as the spread of digital feedback and learning mechanisms illustrates. They come as something of a surprise, especially when we consult our eighteenth-century guide Montesquieu, who was sure that despots had a bad habit of lazily hiding from their subjects. Cloistered in palaces and seraglios, surrounded by trusted courtiers who spoon-fed them information calibrated to please their ears, despots could be tripped up by “natural foolishness.” By contrast, the cleverest despots of our time are not “naturally lazy, ignorant, and voluptuous”; they know the pitfalls of cloistering themselves, and they don’t suppose that they are “everything and that others are nothing.”1
Well aware of their own vulnerability in tugs-of-war between their will to control, negotiated change, and outbursts of public resistance, our despots know well local versions of the Russian saying that riding slower takes you farther. That is why the new despots have a taste for public forums and other consultation mechanisms and why they pay so much attention to producing and controlling public opinion. “The correct guidance of public opinion benefits the Party, benefits the nation, and benefits the people,” former Chinese leader Hu Jintao famously remarked, before adding: “Incorrect guidance of public opinion wrongs the Party, wrongs the nation, and wrongs the people.”2
Such statements are not mere official hyperbole. They reveal how the new despots strive to be flexible in how they exercise power, pragmatically adapting to changing circumstances so that they remain on top. In this new twenty-first-century vision of “enlightened despotism,” the embrace by despots of organized market research and opinion polling is telling. Most of the new despotisms know that fish are best caught with hooks, baskets, and nets, which is why they build a giant information-gathering apparatus that covers every nook and cranny of their domains, and beyond.
The contraption has many parts, comprising many different types of information gathering. In Iran, for instance, public opinion polling is considered a vital tool of resilient government, even though pollsters and polling agencies find themselves forced to tread carefully. So as to improve the quality of its received intelligence, the regime tolerates the operation of a variety of pollsters. Iranpoll is the most active, and enjoys a reputation for the most reliable polling. In cooperation with the American Association for Public Opinion Research, the University of Maryland, and other outside bodies, it claims to conduct more than 150,000 interviews each year, using methods ranging from landline telephone interviews (notoriously unreliable in a country where barely a third of the population has a fixed line) to online and app-based surveys. Other polling agencies include the University of Tehran’s Iranian Students Polling Agency, the official Islamic Republic News Agency, Entekhab, Rooz Plus, and Tabnak. The regime allows outside organizations to sample opinions, as the Washington-based International Perspectives for Public Opinion did a dozen times during the buildup to the 2017 presidential election. On the eve of the same election, even the supreme leader, Ali Khamenei, using his Telegram messaging account, invited his followers to reply to his question about the state of the Iranian economy, which many tens of thousands did.
The regime clearly understands the need for information feedback loops, but here the paradoxes begin. Fearing that negative results might arouse public controversy, the rulers keep a close eye on the pollsters. Polls published at universities, in newspapers, and via online platforms are tracked by the Ministry of Culture and Islamic Guidance; online poll results are permanently under the surveillance of the Iranian cyberpolice, known officially as the Police for the Sphere of Production and Exchange of Information. Their brief is to apply laws that prohibit such acts as “creating disagreements among the social strata of the population,” “disseminating false polls,” and “disturbing public opinion.” Here the contradictory logic of public opinion polling is exposed. In order to rule intelligently, despotisms depend on free flows of information that come from below. But despotisms do not like bad news, because it can arouse public resistance. So they must suppress poll results not to their taste.
Public opinion is despots’ curse. They need it on their side. They must nurture it to prop up their rule. Yet despots fear it. And when it delivers ominous news, they must shoot the messenger. Public opinion must then be ignored, or crushed outright. Examples of the uneasy dynamics unleashed by opinion polling are easy to find. During Iran’s bread riots in January 2018, the Office of the President commissioned polls by the Iranian Students Polling Agency (ISPA). Their results showed deep disgruntlement with the policies of the government, which worsened matters by arresting ISPA pollsters as they went about their work. More controversial was the drama triggered by the Ayandah Polling Institute during the so-called reform period under President Mohammad Khatami (1997–2005). When their poll data suggested that a majority of Iranians favored rapprochement with the United States, Supreme Leader Khamenei stepped into the fray. Determined to kill off developing oppositional public spheres, he ordered the arrest of the head pollsters on the grounds that they “lacked national pride” and were “ignorant of the ABCs of politics.”3
In China, the dynamics are just as fraught. During the first two decades of reform, an estimated eight hundred polling firms were registered, half of them located in Beijing.4 Though not all of them survived ruling pressures, some of these organizations are classified as “unofficial” (private, for-profit, not directly part of state structures). Others are semiofficial organizations (for-profit, operating at some distance from state ministries); still others are controlled directly by the state, as is the case with the People’s Daily Online Public Opinion Monitoring Center, which harnesses data-harvesting algorithms to send summaries of trends in Internet chatter in real time to Party leaders, often with advice about which language to use, or avoid, in handling hot topics. Some of the polling agencies are joint ventures with media firms and foreign companies operating in China. Practically every institution of higher education hosts a public opinion research unit, chartered to analyze trends and hot spots with the help of social scientists who have swapped their former “redness” for the mantle of expert functionaries in a booming public opinion polling and survey research industry.
From the perspective of state power, the data-gathering and opinion-polling machinery operated by the Party is straightforwardly designed as an early warning system, mainly to protect the governing structures from political resistance and social disorder. Public opinion polling is central to the Party’s efforts to kick the habit of keeping the lid on everything by becoming a “learning party.”5 In the Tibet Autonomous Region, for instance, the Chinese rulers have been experimenting for some time with a new political grid system (wǎng gé) of neighborhood information-gathering units, led by grid captains. More than six hundred street-side “convenience police posts” (biàn mín jǐng wù zhàn) equipped with computers and video technology have been set up in towns, rural areas, and temples throughout Tibet. These police posts are a vital part of a system that operates 24 / 7 and is designed to gather information about “special groups,” such as ex-prisoners, “nuns and monks on the move,” and Tibetans who have returned from exile in India. These police posts are linked in turn to voluntary grassroots civilian networks called “red armband patrols,” whose job is to anticipate “sudden incidents” (self-immolations, for instance) and to conduct “doorstep interviews” and searches of Tibetan homes for politically forbidden materials, including photographs of the Dalai Lama. As a reminder to the local population that the mountains may be high but the emperor is close by, available online, the Chinese rulers have announced that they intend to expand the state-of-the-art surveillance system. They say it is designed to “improve public access to basic services.” They describe the dragnet as an important component in the countrywide drive toward “social stability maintenance” (wéi wěn) and “scientifically guiding public opinion” (kē xué yǐn dǎo yú lùn). Party documents speak of a system of “nets in the sky and traps on the ground” that strengthen the information and intelligence work of the Party.6
Elsewhere in the Chinese polity, the data-harvesting machine operated by Party rulers affects all tiers of government. Local Party branches, for instance, function as listening posts, as do the Party academies to which up-and-coming cadres are sent periodically for “study.” Higher up within the polity, the network of People’s Political Consultative Congresses and other consultative organs is designed to win the support and collect the opinions of businesspeople, intellectuals, and various Party and non-Party people. The information-harvesting machine extends far beyond the territorial borders of China. China’s surging foreign press corps is an example: stationed everywhere on our planet, including strategically important countries such as the United States, the press corps comprises more than reporters filing stories from abroad. Journalists double as providers of regular intelligence to government security and diplomatic departments.
Outside-inside information harvesting by state officials also extends to joint ventures with foreign companies such as A. C. Nielsen, Gallup, and Kantar. For nearly a decade, to cite just one example, the Global Attitudes Project of the Pew Research Center, a nonpartisan “fact tank” based in Washington, DC, has organized surveys in China on directly political matters. “Now I’m going to read a list of political leaders,” runs the wording of a standard question asked of Chinese citizens. “Tell me how much confidence you have in each leader to do the right thing regarding world affairs—a lot of confidence, some confidence, not too much confidence, or no confidence at all.” The results are understandably pleasing to the Chinese rulers. Between 82 percent and 86 percent of citizens said they had “a lot of confidence” or “some confidence” in former Chinese president Hu Jintao (2006–2012); in a 2014 survey, despite early signs of demagoguery, President Xi Jinping managed to leave the leaders of parliamentary democratic states in the dust by scoring a 92 percent positive rating among Chinese citizens.7
These information surveys and opinion polls deserve closer inspection, for they tell us much about the whole strange phenomenon of despotism. The data-harvesting strategies they normally use have proto-democratic methods. They range from doorstep interviews, focus groups, and standard questionnaires to participant observation and telephone, postal, and email surveys. In the peculiar circumstances of heavily mediated rule, these methodologies are debatable: questions are often poorly worded, key terms are left undefined, the methodologies used by the polling agencies are rarely explained, and not much is known about whether and to what extent respondents feel pressure to provide the expected, politically correct, or socially acceptable answers—or to what extent subjects tell lies to pollsters, whether just for the hell of it or to get the data monkeys off their backs.
Given the staggering complexity and various levels of censorship of the official information that flows through the body politic, the opinion samplers can never be fully sure they are asking the pertinent questions or drawing the right conclusions. In Beijing and several hundred other cities just months before the 1989 Tiananmen and related uprisings that threatened to implode the whole political system, most observers considered price inflation to be issue number one. Nobody anticipated the rapid swings of opinion and public explosions that were shortly to happen. In other words, the striking thing about public opinion (yú lùn) in China, as elsewhere, is its indeterminacy, its immeasurability, its promiscuity, which is why it is unlikely despotic rulers could ever manage to perfect the art of opinion formation.
In China, things are not helped by the censorship and manipulation of findings carried out by the Party’s Central Propaganda Department (tellingly, in 1998 its English name was officially changed to the more democratic-sounding Central Publicity Department). Since the Party controls most broadcasting and print media outlets, survey findings that it dislikes simply go unreleased. Some topics, such as the large-scale cruelty and violence of the post-1949 period, are still out of bounds to polling and marketing agencies.8 Unsurprisingly, willful self-censorship flourishes under these conditions. Every government department at the central and provincial level contains units dedicated to public opinion research. Yet they often produce reports that reproduce the anticipated views of the officials who are in charge. When the Party turns to private polling and survey organizations, the bias is not automatically corrected, since they too have a contractual or strategic interest in not incurring the wrath of Party officials.
The upshot is that in China, as in other despotisms, what counts as “public opinion” is a guessing game. Nothing is quite what it seems. There is much pretense, along with cultivation of the art of pretense, fueled by second-guessing. That is why so many people are so busily engaged in interpreting what elsewhere is called dog whistling. In a system of media spectacles in which it is hard to know what is real and what is artificial, what is permitted and what is not, and what will or will not be punished, it becomes imperative to decode surface or official explanations, in order to grasp the hidden meaning behind things as they appear.
Despite such complications, the rulers hold fast to their organized hunt for measured “public opinion,” which they seek to correct and control, in opposition to the disruptive forces of “rumor” and “wrong thinking” and “social disharmony.” The range, depth, and frankness of some opinion polls can be impressive. The Moscow-based Levada Center uses a countrywide interviewer network to track opinions about a wide range of matters, including daring questions about Putin’s overall popularity ratings (they range between 90 percent and 65 percent) and his personal responsibility for “high-level government corruption and financial abuse” (67 percent said “fully” or “in large part” in March 2017).9 There is considerable freedom to pry into such topics as public order and security, migrant workers, the disabled, beggars, social welfare policies, and the efficiency and effectiveness of local government. Polls are also cleverly used by despots to calibrate proposed policy changes considered potentially controversial, such as measures to reform taxes, restrict car use, or increase the costs of public transport. The rulers know that they cannot simply shove measures down the throats of unhappy subjects, and that public opinion polls are useful means of predicting negative reactions and defusing bitter controversies.
The public rumpus triggered by local government plans to reduce traffic congestion by increasing parking fees in Guangzhou in early 2014 is a case in point. Officials were aware that a survey, conducted by the largest independent public opinion research agency in China, the Canton Public Opinion Research Center (C-POR), had already reported that most Guangzhou citizens (54 percent) were unconvinced that parking fee increases in the downtown area would improve traffic conditions, with an overwhelming majority (69 percent) concerned that increased fees would lead to more illegal parking.10 So in order to dampen public discontent and to review the proposed plans, the local Guangzhou Bureau of Prices convened a public hearing attended by various invited representatives. Local media were quick off the mark in reviewing the proposed plans, with the Yangzi Evening News stirring up trouble with calculations that the average cost of parking for ten years would be equal to the price of a BMW (480,000 RMB).11 C-POR weighed in with a survey reporting that, while only a bare majority (51 percent) of respondents rejected the government’s new policy, more than three-quarters of Guangzhou citizens (77 percent) seriously doubted the wisdom of raising parking fees. A clear majority (60 percent) believed that higher parking fees would actually cause more “illegal/random” parking, but that if parking fees had to be increased, then the revenues generated should be spent on tighter traffic regulations and improved public transport.12 There followed lively, open, and fairly frank public debate. The Bureau of Prices wavered and began to explore alternative, more equitable schemes, even calling upon citizens to make their views known by email, fax, or mail. This triggered still more controversy, with many hundreds of contributions posted on Sina Weibo. The eventual introduction of higher parking fees in August 2014 did not halt the uproar. Using various media, some citizens asked where the increased revenues were being spent; others complained about the worsening city traffic; still others said that, while public consultation was a good thing, the local government was behaving incompetently, with things made worse by postponed announcements and ambiguous information. One brave citizen even suggested that the best solution to the traffic problem was to arrest and jail the boss of the local Transportation Committee.13
Do such public disputes fueled by poll findings have broader significance for how we understand the new despotisms? They do, for they reveal the strange and subtle dependence of the ruling powers on public opinion. It is more accurate to say that the new despotisms pay homage to a “phantom public” (Walter Lippmann’s classic phrase) that is both tangible and ungraspable, both real and unreal.14 They prevent the independent formation of public opinion through nonviolent but rough-and-tumble exchanges of views among citizens who think of themselves as equals. Yet while the institutions of despotism stand firmly against public opinion in this genuine sense, the remarkable thing about these despotisms is how they seek to divine and dowse public opinion through a host of agencies bent on measuring phenomena that are prevented from taking on a life of their own. Put bluntly, those who govern the new despotisms simultaneously honor and do everything to crush the formation of publics with independent views about matters of public concern.
Rulers acknowledge the old maxim that every form of government rests upon opinion.15 But since rulers such as Recep Tayyip Erdoğan, Alexander Lukashenko, and Sooronbay Jeenbekov (president of the Kyrgyz Republic, whose constitution describes him as “the symbol of the unity of the people and state power”) are well aware that the survival or extinction of their regime depends on winning or losing public support, they give the old saying a sharp new twist. Their calculation is clear: if opinion is the foundation of stable government, then government itself must create stable opinion. It follows that the imperative is to watch, to keep ears to the ground, so that the goal of harmoniously guiding public opinion becomes a reality. Despotism must work constantly to stay closely in touch with the people, to ensure that the gap between them and government never grows dangerously wide. Not without a dose of anxiety, the rulers thus acknowledge that when all is said and done, very little props up the political order except people’s belief in it. Potestas in populo is the classic Roman formulation to summarize this rule. The Vietnamese version might be: the higher you climb, the farther you are likely to fall (trèo cao, té đàu). And the Chinese version: the water that floats the boat can overturn it as well (shuǐ kě zài zhōu, yì kě fù zhōu).
If the resilience of a regime is its ability to get its subjects to act as the rulers choose, then persuasion of people rather than violence against them is ultimately the most valuable governing resource. Command and obedience turn out to be tricky components of any political equation, for power over others functionally requires that they feel comfortable with the instructions, directives, and commands issued by those who rule. Despite their native suspicions of power, the ruled have to be persuaded that they will not be devoured by its jaws. Otherwise, they may be tempted to stir up trouble.
If persuasion of people rather than violence against them is key to the stability and long life of despotism, then a salient question arises, one that many consider the quintessential political question: How violent are the new despotisms of our age? Since all states strive to monopolize the means of violence, it seems germane to ask whether rulers are prone to use force on their subjects and on others outside their realm. And since several of these states are armed with weapons of total annihilation, they could be a danger to their subjects, and to all peoples on our planet.
The conventional answer from past thinkers who worried their heads about despotism is straightforward. In the seventeenth century, Thomas Hobbes was the first to say openly that government—“paternal, and despotic”—is founded on conquest and “fear of others.”16 The thought that despotism is a synonym for master-servant government established by violent conquest of subjects fearful of death was echoed in Samuel Johnson’s often-cited A Dictionary of the English Language (1755). Despotism is “absolute power,” he wrote. He went on to say, “Despot: An absolute prince; one that governs with unlimited authority,” and “Despotical, Desspotick: Absolute in power; unlimited in authority; arbitrary; unaccountable.”17 The ideas buried in these definitions remain familiar. When the word “despotism” is uttered, what springs to mind is the image of power backed by fear and violence. Despotisms are said to rest upon their monopoly of force. Appearances aside, they are repressive police states.
What we are about to encounter is yet another surprise: the new despotisms are police states, but they do not resemble the police states of the past. The term “police state” once meant a form of government that “policed” (regulated and polished) its subjects. In the mid-nineteenth century it came to mean a government that exercises power arbitrarily backed up by extensive powers of surveillance and force. When used today, the term has negative connotations. It highlights the bullying, fear, and uncertainty that accompany heavy-handed policing. A police state in effect takes the ruled population hostage in deadly games of shadowy, arbitrary power. The commonly used phrase emphasizes how the rulers of a police state are entangled in parallel dynamics, such as fear of rivals, secretive plots, and assassinations. Police states are often symbolized by Hitler’s Germany, where terror functioned as “non-calculable violence” hovering daily over the heads of every subject.18 Violence was an instrument used to attract loyal support, to frighten the obedient, and to destroy defenseless innocents in concentration camps. More recently, when we hear talk of police states, we turn to Augusto Pinochet’s Chile, with its unsparingly brutal suppression of citizens’ rights to public assembly, independent media, and trade union freedoms. Or we think of Erich Honecker’s East Germany, a police state that penetrated every nook and cranny of life by means of a vast police and intelligence service staffed by more than one hundred thousand full-time “sword and shield” officers, noncommissioned personnel, and special guard units and supported by Stasi informers (dubbed Spitzel) and occasional stool pigeons that may have numbered up to 2 million people (in a total population of 17 million) drawn from all walks of life, including doctors, lawyers, journalists, writers, actors, Protestant and Catholic clergy, university professors, sports stars, and hotel staff.19
Regimes ruled by fear laced with violence are part of a much older pattern. Historians teach us that past tyrannies and dictatorships slaughtered members of their cities’ leading families. They exiled, imprisoned, or killed their rivals. Past rulers were regularly tempted to follow the recommendation proffered in an old tale recorded by the Greek historian Herodotus and reiterated in the advice of Machiavelli in his well-known study of Castracani: power with glory goes to rulers who are brave enough to kill even their own friends because at some point they may become revengeful enemies.20
The despotisms of our time don’t match this description. It is true they are not havens of serenity, gardens of paradise where flowers of peace and harmony bloom. The new despotisms generate plenty of public bellyaching, digital mutinies, and street-level outbreaks of public protest. When public disturbances happen, the police and army swing into action, reminding everyone that when all is said and done these regimes feel like police states. Less obvious is the fact that the new despotisms are a type of police state the world has never before seen.
When it comes to the use of violence, despotic rulers are unusually circumspect, both at the top and in the lower echelons of government. They practice the arts of calibrated coercion.21 The difference with the past can be observed at the pinnacles of state power, where otherwise-skittish rulers tacitly agree among themselves to something of a peace pact. Despots know they are not truly loved. They may be familiar with the stories of the ancient rulers who suffered death at the hands of plotters, including the Roman emperors Domitian, knifed in the groin by a trusted servant named Stephanus in CE 96, and Commodus, who was fed poisoned food by his mistress, vomited, then was strangled in his bath by his wrestling partner in CE 192. The famous Encyclopédie entry on despotism written by Chevalier de Jaucourt (1754) insisted that unrestrained violence at the top continued to be a feature of modern despotisms. Yet since then things have turned out differently.22 The new despots understand that in a war of each against all, nobody is safe even at the top. Living by the sword risks death by the sword.
The alternative is to practice honor among thieves. Everything is done to prevent the kind of great terror backed by wanton violence that in the Soviet Union during the 1930s resulted in large-scale purges of high-level Communist Party and government officials, who were accused of being “counterrevolutionaries” and “saboteurs” and summarily put on trial, dispatched to concentration camps, executed in mobile gas vans, or shot. The upshot is that at the summits of the new despotisms a strange kind of cold peace breaks out. Rulers remain jumpy, grumpy, and prone to paranoia. As in Saudi Arabia and the UAE, where tribal loyalties, regional allegiances, religious factions, and family conflicts run deep, rulers take for granted, and know in their guts, they are ensnared in wrestling matches among potential enemies. Life at the top is reptilian. There are dangerously two-faced showmen, opportunists, crooks, whisperers, plotters, calculators, cockroaches, and spiders. Surrounded by serpents, rulers have an intuitive feel for the plight of Macbeth, in that they know those they command don’t usually obey out of love. They are well aware that there’s many a slip “’twixt the cup and the lip.”23 Palace intrigues and full-scale assaults are constants; bitter feuds, promotion-demotion scorekeeping, squabbling disagreements, tilting at windmills, and comic melodramas are commonplace. There are moments when rulers suffer the plight of the Sicilian tyrant Phalaris: sleepless nights racked by anxieties about plots, assassinations, and popular rebellion that would reduce them to rulers of nothing.24
The paradox is that in spite of these shenanigans and anxious moments, rulers refrain from using violence against their enemies at the top. They understand the dangers of spreading “rhinoceritis” (the playwright Eugėne Ionesco’s word for the way murderous violence proves strangely attractive to people who in turn become its justifiers and perpetrators).25 Since the disease of violence easily spreads and boomerangs on its perpetrators, they have to find more sophisticated ways of fending off competitors. That’s why rulers conclude that it’s better to be a clever political snake charmer with a flute than to enter the serpents’ nest armed with a sword. Since plots at the top are risky, cunning becomes a key weapon. So do secrecy and guarding privileged access to the pinnacles of state power. The concentration of power means that access to its summits must be tightly regulated and carefully guarded. The price of entry must be high, and tickets made scarce. Just as mafia bosses rely on consiglieri, so the despots of our time take great care in surrounding themselves with counselors.
This practice of building chambers of power upon antechambers of loyal and trusted viziers is as old as modern state-building. Cardinal Richelieu, known as the Red Eminence, served as the direct advisor of the seventeenth-century French king Louis XIII. In old age, Frederick the Great reportedly narrowed his advisors down to one: his devoted chamber servant Fredersdorff. Grigori Yefimovich Rasputin, claiming to be a mystic healer, won the trust and protection of Czar Nicholas II. In circumstances very different from the past, today’s despots do much the same thing: they look for support and summon to their side people just like themselves, power players who are “reliable elements” (as the Chinese say) skilled at shielding them against potential enemies. Hence despots like to appoint loyalists and family members to senior positions. Recep Tayyip Erdoğan promotes his son-in-law Berat Albayrak to the post of finance minister. Alexander Lukashenko publicly parades his young son Nikolai as if he is the heir apparent. Vladimir Putin surrounds himself with old friends and lackey loyalists, as does Sayyid Qaboos bin Said Al Said, the ruler of Oman who replaced his father in a palace coup. Azerbaijan’s despot, Ilham Aliyev, went a step further. He appointed his wealthy wife, Mehriban Aliyeva, as the country’s first vice president and his heir apparent. Former member of parliament, busy patron, and ribbon-cutting charity fund-raiser, she is known for her obsequiousness, being reported to have said, “Mr. President, I express my deep gratitude to you for this high confidence in me,” quite possibly linked to the “substantial plastic surgery” that left her “unable to show a full range of facial expression.26 In each and every one of these cases, the rule is clear: favoritism and cronyism are the price of cold peace at the top.
When it comes to dealing with the wider populace, the new despotisms are equally circumspect. Compared with previous tyrannies, dictatorships, and totalitarian regimes, the new despotisms are distinguished by their measured use of violence, and by the way they conceal the fist of force in their pockets. Their mantra is salus populi suprema lex (the safety of the people is the supreme law). Keeping subjects safe naturally implies the rulers’ use of force against their named enemies. “The question of the death penalty should be kept on the agenda in Hungary,” says a prominent government minister, “and we must let it be known that we will stop at nothing when it comes to protecting our citizens.”27 While the death penalty is not a universal feature of despotism (it is practiced in Belarus, Saudi Arabia, and China, where in rural regions mobile execution vans administer lethal injections to convicted criminals), the sentiment that state power is entitled to rob subjects of their lives is commonplace. Despots understand that their duty is to win the obedience of their subjects by ensuring their protection. On the basis of that principle, the rulers display great determination and efficiency in stamping out the first signs of public dissent.
Writers, artists, and public intellectuals are often first in the line of fire—understandably, since they are the ones who are disposed not only to question restrictions on artistic freedom but to protest through their work against the terminal nullity of life, the fact that it eventually ends. Political dissidents and rebel journalists also suffer the whip hand of the state. Sometimes the violence is cleverly concealed in the form of Hitchcock-style murders, as in Saudi Arabia, whose agents entered their government’s Istanbul consulate one day in October 2018, waited for the arrival of a prominent exiled journalist critic, Jamal Khashoggi, who had come to obtain a document required for him to get married, and murdered him, hacking his body to pieces. The Saudi regime’s religious police, the mutaween, are equally shameless. Backed by the custom of public beheadings, and torture methods that include pouring antiseptic cleaning liquid down prisoners’ throats and force-feeding watermelon to male victims and knotting their penises, they specialize in striking fear into the hearts of individuals and groups they brand dangerous. Their force rains down hard on brave victims like the human rights lawyer Waleed Abu al-Khair, sentenced to fifteen years in prison for “disobeying the ruler,” “insulting the judiciary,” “setting up an unlicensed organization,” “harming the reputation of the state,” and “preparing, storing and sending information that harms public order.”28
When hundreds of thousands of citizens, including women wearing headscarves, Kurds, liberals, nationalists, and football fans, took to the streets throughout Turkey in the early summer of 2013 to protest government construction plans in Gezi Park, a small green zone on the edge of Istanbul’s Taksim Square, Erdoğan delivered on his promise of vengeance: “Whatever is necessary will be done!” In Belarus, President Lukashenko rails against “senseless democracy,” while his provocateurs in the KGB (as it’s still called in the country) are prone to beat their opponents senseless. Putin, who fancies himself the bare-chested remedy for the past era of “confusion and twilight,” the “effective manager” who is making Russia great again, is absolutely intolerant of all “enemies of stability.” His rise to power was tightly connected to targeted violence, the clever manipulation of actual and contrived terror attacks to wipe out what he called “the shithouse” of Muslim resistance in Chechnya, where more than one hundred thousand people were killed. Once in power, Putin continued to wage violence against his enemies, for instance at the Sochi Winter Olympics in 2014, when protesting citizens were greeted with lethal cocktails of pepper spray, horsewhips, heavily armed riot police, Interior Ministry troops, and operatives of the Federal Security Service.
In Brunei, the Internal Security Department sniffs out subjects accused of circulating propaganda material, possessing drugs, or playing the local game katam-katam, in which gamblers bet on the outcome of the roll of a dice. Under legislation carried over from British colonial rule, those picked up can be convicted for crimes of “treason,” “subversive propaganda,” “forgery,” and “sabotage of economic stability.” In Singapore, police act on the Chinese proverb that killing the chicken scares the monkey. They search homes and detain without trial targeted subjects deemed a threat to “national security.” Even an appearance at the famous Speakers’ Corner risks arrest and a hefty fine for participating in an unauthorized “assembly or procession.” In Kyrgyzstan, people familiar with the famous novelist Chingiz Aitmatov’s The Day Lasts More Than a Hundred Years (1980) know the continuing real-world relevance of its fictional account of mankurts, prisoners of war reduced to brain-damaged slaves by confinement under a hot sun with their heads wrapped in camel skin that dries tight, like a steel band. In neighboring Kazakhstan, it is recorded that human rights workers have been set upon, their chests bared, and a large X—the mark of the censor—carved on their skin. Following an alleged failed military coup in July 2016, the Erdoğan government’s purge of its former Gülenist allies resulted in the arrest and imprisonment of tens of thousands of citizens for alleged links to terror organizations, the sacking of 130,000 state employees, the jailing of over 7,000 senior military officers and a quarter of the country’s lawyers plus the closure of 200 media organizations, including newspapers, periodicals, radio stations, and television channels.
There is ongoing violent repression of Uighurs in Xinjiang in western China and brutal suppression of the Muslim Brotherhood in Egypt. In Tajikistan, racked by civil war in the early 1990s, the state is constantly on the lookout for signs of what the authorities interchangeably call “Islamic radicalism,” “foreign extremism,” and “terrorism.” Men with beards are stopped on the streets, or arrested on trumped-up charges that often treat faith as terrorism. The wearing of the head scarf, popular among many Tajik Muslim women, is forbidden in state institutions and in some public places and shops. Independent mosques are closed, and state-approved imams are pressured to transform their sermons into paeans to former cotton farm boss President Emomali Rahmon. In his formal 2016 address on Mother’s Day, which replaced International Women’s Day in Tajikistan, the president criticized women who wear “foreign” clothing, especially the black veils associated with conservative Islam. “Strangers,” he said, are using Islamic dress “to promote obtrusive ideas and want to create another new extremist trend in our country.” Several days later, following orders from on high, tax inspectors, police, and leather-jacketed spooks from the State Committee for National Security raided Dushanbe’s Sadbarg market and instructed shopkeepers to discontinue selling Islamic clothing. State television backed the raids by claiming that sex workers were using the hijab to inflate their prices and to spread “extremist” views.29
These few examples suffice to suggest that everywhere in the world of despotism the powerful are constantly on the lookout for subjects who show signs of intransigence or wanting to become public-spirited citizens. The potential for full-on deployment of force by the machinery of state repression means that fear of brutal violence among public dissenters is constant. The army, police, and goons are on constant standby. Yet striking is the way despots’ use of concentrated violence is cleverly calibrated, often outsourced, and, until the moment it strikes, a shadowy affair.
Despots surely know the famous maxim of Mao Zedong that only with guns can the world be transformed. Perhaps they are mindful of Thomas Paine’s warning in his best-selling Rights of Man (1791): “The strength and power of despotism consists wholly in the fear of resisting it.” But they are also no doubt aware that the unrestricted or reckless deployment of force harbors grave risks. Experience teaches them that when all is said and done, very little props up the political order except people’s belief in it. Russians say that the devil dreamed of ruling the whole world but God granted him not even power over a pig, and many Chinese people know the parable (famously told by the Confucian writer Liu Ji) of the good beekeeper whose foolish son managed their hives so poorly that the bees abandoned the hive, leaving the son to languish in poverty. So if the power of a regime is its ability to get its subjects to act as it chooses, then fear and violence are ultimately limited resources. Command and obedience, which do not happen naturally, as if blessed by the deities, turn out to be tricky factors in any political equation. Power over others functionally requires that they feel comfortable with the instructions, directives, and commands issued by those who rule. The ruled have to be quietly or openly persuaded that they will not be devoured by the jaws of power.
This is why the new despotisms do all they can to camouflage the bodily and mental violence they inflict on their specified opponents. It is as if they take their cue from contemporary democracies, which pioneered ways of dodging public scandal by using “clinical” techniques of torture, such as water, ice, electricity, noise, and drugs, that leave the bodies of their victims unscarred.30 The new despotisms depend upon targeted—not blanket—force. They annoy and persecute and maim and blind their opponents. They kill. Yet the new despotisms hide the executioner’s face. They have velvet fists. The new despotisms strive to be police states in the original meaning of the term: strong states that claim to guarantee order not just via retributive justice (the German scholar Franz Neumann called it Strafjustiz) targeted at identifiable real opponents but also through media and policy efforts to protect and improve the lives of their subjects.
How do they actually do this? We have already encountered some of their preferred methods. The rulers talk of the people, foster connections, and tolerate top-to-bottom corruption; they hide away concentrated wealth, rely on the middle class, promote economic growth, and master the arts of entertainment, information flows, and media coverage. When it comes to dishing out violence, the rulers tread carefully. The army is usually kept out of the way; the consequent global decline in military interventions in the politics of the new despotisms is remarkable. The police and the secret police fill the gap. They aren’t gentle, but they operate in the shadows. Their targeted and camouflaged violence ensures that despotisms feel more “humane” and “civilized.” Unlike the totalitarian regimes of the past, there is no reigning “atmosphere of madness and unreality.”31
We could say that the new despotisms try to practice to perfection an art that has taken root in actually existing democracies, where (for instance) in the European Union alone, in addition to its use of private “contractors” in overseas missions, well over a million people are now employed in the member states in newly privatized policing and security services, so that (according to recent figures) the ratio of private security staff to police officers is now more than double in the United Kingdom and fast approaching parity in countries such as Germany and Spain.32 Parallel trends are evident in the United States, whose federal government now depends heavily on mercenaries in war zones, contracts private corporations to run its prisons, and tolerates a presidential candidate using his own private security force to assail protesting citizens.
The reality within the new despotisms is similar. Privatized violence flourishes. It is often invisible. The Qatar way of doing things is every despot’s dream. Imagine: the wealthiest country in the world, a place in the Arab world without any recorded political prisoners, a kingdom protected by all-seeing eyes and mostly invisible police repression. Cyberpolicing is strict—Qataris who dare post online materials considered beyond the pale are visited by the police and warned to desist, or in more serious cases summoned for interrogation to the headquarters of State Security. Closed-circuit television cameras are omnipresent. Smart cards, introduced in 2011 by the Interior Ministry, enable citizens to access government services but double as gate passes, national identity cards, residency permits, and tools of surveillance. Undercover agents are active, and private security guards, mostly from Nepal, are found in every shopping mall and office complex. The role for uniformed police officers is consequently slim. Few are publicly visible except at the intersections of Doha’s main streets.33
Elsewhere, the reality of despotism is harsher though no less camouflaged, as in Russia, where the methods used by its rulers are sometimes crude (slipping radioactive poison into tea; using nerve agent to murder defectors; gunning down a prominent opposition leader in full view of surveillance cameras, just before midnight, at the foot of the Kremlin walls). Most of the work of political violence in that country is done not by the central government but by local political bosses, secret service agents, plainclothes thugs, and organized criminals. The gruesome fate of a hapless Moscow banker in mid-2005 illustrates how justice is typically dispensed. Caught up in disputes linked to land and assets, Oleg Novoselsky, chairman of the Kutuzovsky Bank, was kidnapped by a much-feared paramilitary gang run by Aslan Gagiev, a vain and cunning crook known in the underworld as Djako. Novoselsky was immured in a large barrel of concrete and left without food or water to bake to death in the searing summer sun. A week later, on Gagiev’s personal order, the barrel containing the banker’s body was dumped into the Moscow Canal. A decade after that, following a tip from a former gang member, his remains were discovered at the bottom of the canal. Gagiev was later arrested and extradited from Austria to Russia, but two decades later the contract murderers had not been apprehended or convicted.
The brazen lawlessness of dastardly acts stands in contrast to the fact that despotisms typically have fine constitutions, and that there is much trumpeting of the coming of peace and justice at home as the fruit of the fair-minded enforcement of order through law. The doublespeak of the Kremlin refers to “dictatorship of the law.” Beijing trumpets “legalization” and “governing the nation in accordance with the law”; it boasts a constitution specifying that every citizen is “equal before the law.”34 But the reality is that under conditions of despotism law is never simply law. There is no independent judiciary. From the top downward, politics under despotic conditions resembles a permanent coup d’état, a steady evisceration of constitutional precepts and rulings, and an unending campaign to destroy “juristocracy.” Loaded judicial appointments, demotions and firings, favoritism, and bribes ensure that the courts and the legal profession are hemmed in from all sides and rendered subservient to the reigning political powers.
The dependence of courts on the rulers (in Russia this is known as telefonnoe pravo, “telephone justice”) means that judges tempted to rule against those in power don’t last long. On the other hand, judges who predetermine trial outcomes by daydreaming their way through defense submissions while checking their mobile phones do. Despots have no love for legislatures either. Their parliaments are rump parliaments, not independent lawmaking bodies with teeth. In practice, despotisms gut courts and legislatures, and gutted courts and legislatures nourish despotism. The whole dynamic enables despotisms to deal lawlessly with their targeted opponents. Arrests on trumped-up charges and wrongful convictions of innocent subjects are common, sometimes to the point where the malfeasance of police and judicial officials seems indistinguishable from that of the crooks and criminals they’re supposedly tracking and convicting. Despotisms and their systems of law impose few or no meaningful restraints on brutes and bullies. Some are well above the law, or escape the hand of published and publicly available laws. The laws may be stated clearly, but they are rarely observed (Russians say their strictness is honored through noncompliance). Though appearances are deceptive, despotisms are in fact systems of organized lawlessness. “Rule of law” has a phantom quality; it means “rule through law.”
What is meant by the much-used, much-abused phrase “rule of law,” which—far from being a liberal or bourgeois invention—has hybrid origins, including in the medieval European and Islamic traditions?35 Loosely put, it refers to institutions and codes of written law that have the practical effect of curbing and balancing the ambitions of the powerful and those seeking power over others. The system of laws imposes meaningful restraints on crooks and thugs. Justitia, blindfolded and wielding a balance and sword, favors nobody. No person is above the laws, or escapes the hand of published and publicly available laws. The laws are clearly stated and consistent. They rule supreme; they apply equally to all, without exception, even to heads of government, judges, and businesspeople; and their retroactive application is not allowed. The laws are capable of being followed and enforced; they are peace formulae designed to inject a meaningful measure of juridical predictability into the whole political order.
Most twenty-first-century despotisms have been influenced to varying degrees by rule-of-law traditions, as for instance in East Asia, where such traditions began to take root during the Meiji period (1868–1912) in Japan and under the late Qing Dynasty (especially from the 1890s) in China, fueled by the conviction in ruling circles that independent courts were necessary for taming the tigers of power.36 The same reasoning today grips lawyers, scholars, and citizens working to defend rule-of-law principles from inside the new despotisms. Umbrella groups and networks like Human Rights House Voronezh in Russia, the Hungarian Helsinki Committee, and the loose citizens’ alliance in China known as Rights Defense (Wéi Quán) are convinced that rule of law is a valuable weapon against the corrupting effects of arbitrary power. They say that whenever people act arbitrarily, they decide matters without reference to, or respect for, the existing laws.37 They think they can get away with things unopposed; they suppose, without losing a wink of sleep, their own power to be self-justifying, or granted by the grace of a higher being, as if they have the heavens, history, or human nature on their side. That is why, cunning and camouflage aside, they treat others with disrespect. Putting themselves on a pedestal, they ditch the dignity principle, the precept that all persons should be regarded as beings worthy of respect because they are capable of publicly explaining themselves and their actions to others. So the merchants of arbitrary power typically rig things to their advantage. Though they may say otherwise, they are antidemocratic: they restrict or ban outright opportunities for others to call into question or actively refuse the rulers’ power. Sometimes they even resort to eliminating their opponents through torture, imprisonment, disappearance, or death.
Under despotic conditions, the beleaguered supporters of the rule of law emphasize that it enables the weak to speak against the strong by pressing home their concerns freely in public. Rule of law is an antidote to fear caused by uncertainty. When employers, government officials, or armed police act with impunity, they inject anxiety and paralysis into their subjects’ lives. Arbitrary power is unpredictable power. When unleashed, it can operate spitefully, changing direction on a whim, exacting revenge on its victims. Rule of law, they insist, sends signals to the peddlers of arbitrary power that fear is a public problem, and that it can ruin people’s lives and therefore must not be tolerated.
Rule of law is seen by its friends as not just a weapon for preventing harm to the body politic. It has positive implications, they say: it is a reminder of the importance of fostering the dignity of citizens. Rule of law rejects the view that people are fit only for bowing and scraping in the presence of masters. Rule of law supposes citizens are capable of defining life’s projects for themselves. In this sense, rule of law anticipates and requires putting an end to the practice of people being treated as objects of others’ wills. This is another way of saying that rule of law is the ally of the liberty of all citizens, their capacity to live their lives as equals in the expectation that they will not be bossed and bullied by arbitrary power. When citizens enjoy the liberty to express themselves, to say their piece and act upon their words, then they can better make sense of the multiple choices and decisions that are the result of their liberty. Rule of law, say its champions, enables the nonviolent coordination and resolution of potentially conflicting claims regarding who should get how much, when, and how. In sum, they urge, rule of law implies the possibility of democratic politics. They imagine a world in which power is no longer subject to the arbitrary rule of the wealthy, the strong, or the capricious—a world where those who exercise power are required to give an account of their actions and to be held publicly responsible for their fraud, mendacity, lawlessness, and violence.
Enter reality. Present-day despotisms measure up poorly to these standards for rule of law, but in surprising ways. Early modern denigrators of despotism supposed that it “rendered useless all kinds of laws.”38 The new despotisms are different. They cling to law, and do much to reassure their subjects that law is not simply a stick used by the strong to beat the weak. In Vietnam and China, official signs plastered on city buildings and countryside walls urge subjects to pay attention to the laws, steadfastly to uphold the laws, and to obey a state in which rule of law prevails. The slogans seem to be confirmed by the rapid expansion of the legal professions in those countries. In China, for instance, on the eve of the Deng Xiaoping reforms, following a sustained Maoist period of lawlessness when all legal work was condemned as counterrevolutionary, there were just 5,500 lawyers working in 1,465 law firms. Less than two decades later, there were an estimated 110,000 lawyers employed in some 8,300 law firms. The numbers have since grown exponentially.39
Despotisms generally seem keen to bolster the trend. They open their legal-services field to Baker McKenzie, to Paul, Weiss, Rifkind, Wharton & Garrison, and to other large foreign law firms, which work alongside local partners. The despotisms negotiate and operate cross-border rule-of-law deals, such as the 1998 Legal and Judicial Cooperation Program with the European Union. There are times when the governing bodies host robust conference discussions about the merits of the rule of law. Judicial reform plans are announced to improve professional training of judges, strengthen the hand of local courts in such matters as commerce and the environment, enhance the openness and transparency of the legal system, and generally strengthen the legal rights of individual litigants, for instance through judicial review and by disallowing illegally obtained evidence. Although stiff penalties for “publishing state secrets,” “subverting state security,” and the like typically remain on the books, death penalty legislation, where it exists, tends to be used sparingly. There is, meanwhile, abundant talk by officials of the need to “strengthen the law,” to “observe” and “respect” the law; there are even calls for locking power in “a cage of regulations” (Xi Jinping).40
There are undoubted success stories, where approximations of the rule of law operate as a substantial norm shaping legal practice. Consider the growing domestic use by the Chinese Communist Party of various forms of legal mediation (fǎ lǜ tiáo jiě). Nearly a million legal mediation committees assisted by “people’s mediators” now handle most conflicts (perhaps 90 percent) inside and outside courts, at no cost to the litigants, in such areas as economic and labor disputes, divorce, minor criminal matters, and civil disputes at the township level. Moving up the pyramid of power, consider China’s escalating global contribution to the field of cross-border legal arrangements. There, against the perceived hegemony of the United States, Chinese officials favor multipolarity and a distinct “transactional” style of diplomacy laced with talk of a stable “community of common destiny” and a “new model of international relations” (xin xing guoji guanxi) based on the careful calculation of costs and benefits to the “national interest” of China.41
Equally striking is the way these same officials have learned the legal rules of the foreign policy game. With the notable exception of the Organisation for Economic Co-operation and Development, the world’s most powerful despotism is now thoroughly entangled in the complex institutional webs of what is called global governance. China plays an important role in the three main Bretton Woods institutions (the World Bank, from which it is now the largest recipient of projects and loans; the International Monetary Fund; and the General Agreement on Tariffs and Trade), as well as in the Asian Development Bank. It extracts investment, loans, and aid from a wide variety of multilateral agencies—larger sums than any other state in the world—and plays a vital role in key global security and arms control treaties. It is committed to building and buttressing new cross-border institutions such as the Shanghai Cooperation Organization (the alliance of China, Russia, India, Pakistan, and the Central Asian states) and to the twenty-seven-member Conference on Interaction and Confidence Building Measures in Asia.
Reports suggest that within most of these organizations, Chinese diplomats, negotiators, and other officials impress outsiders with their knowledge of procedural rules and technical details, their preparedness, and their tough negotiating skills. “China is thorough, exceedingly well-prepared and well organized about executing its responsibilities as an institutional member,” notes a US congressional report. “It does its ‘homework’ and raises detailed, substantive questions about matters which not only affect China’s interests, but also on issues of purely institutional relevance. This includes questions about operational issues and structures, staffing and office locations, and a range of administrative issues.”42 Chinese negotiators equally demonstrate their respect for rule-of-law principles and practices within such venues as the World Trade Organization Dispute Settlement Body, in which it has become a highly active participant with a surprisingly low volume of complaints and full acceptance of legally binding decisions.43
The trend has prompted respected scholars to ponder the possibility that despotisms such as China, Russia, and Turkey might develop local versions of the rule of law. The evidence is discouraging. Despite all the good behavior, when the businesses and governments of the new despotisms are operating abroad, they often care little or nothing for law. Think of Donetsk, heartland of a Russian-driven military occupation that has resulted in the deaths of more than ten thousand Ukrainian citizens; or Sihanoukville, the Cambodian host city of gambling and prostitution catering to Chinese mafia types; or the Anatolian Kurdish city of Silopi, where in late 2015 frightened residents fled a curfew imposed by heavily armed Turkish troops. On the domestic front, the fungus of lawlessness flourishes. The new despotisms contain no effective mechanisms for enforcing well-written constitutions. National legislatures such as Saudi Arabia’s Majlis Ash Shura appear to resemble parliaments, but in practice they fail to exercise constitutionally prescribed powers of supervising the rulers. Despots are by definition beyond the reach of the law, especially when they are subject to open public challenges. That is the meaning (reiterated during the several uprisings in Hong Kong starting in 2014) of official statements such as “Firmly safeguard rule of law” and “Democracy without the rule of law will only bring havoc.”44
Abuses of power by lawless rulers, meanwhile, are well documented on a daily basis. From top to bottom in these systems, personal favors, embezzlement of public monies, bribery, and blackmail are chronic. Public dissent is punished. Take a typical incident: people attend a private event to discuss a matter of public concern. They are trailed, spotted, and nabbed by the police, who instruct them to come for a cup of tea. At the police station, they are interrogated by officers from the much-feared secret police force. Punctuated by periods in which their interrogators leave for cigarette breaks or to make telephone calls to their superiors in order to decide what next is to be done, the questioning can last for hours or even days. Some are let off with just a warning on the condition they switch to offering “constructive advice” to the authorities instead of criticism, “adjust” the tone of their social media postings, or simply shut their mouths. If less lucky, subjects are charged with such offenses as “picking quarrels and provoking troubles” or “gathering a crowd to disrupt public order and undermine law enforcement.” The unluckiest are beaten, disappeared, or convicted and sent to prison. Some pay the ultimate price for their civic initiative, with their lives.
Defenders and friends of despotism typically say these events are exceptions, or unwarranted exaggerations made by ignorant foreigners meddling in their country’s affairs. They point, with some justification, to the gross legal injustices suffered by religious and ethnic minorities within Western democracies, or they praise progress on the local legal front and say there’s still much work to be done. They express pride in what they call the process of “legalization,” using phrases such as “governing the nation in accordance with law” and (in Laos, Vietnam, and China) “building a socialist rule-of-law state.” Note the clever interpretation of rule of law as “rule by law.”45 Law is a weapon of political command and control.
Anticorruption campaigns well illustrate the point. Conducted in the name of rooting out abuse of power at all levels, these campaigns have the effect of drawing public attention to what everybody knows: from top to bottom, the structures of despotism are riddled with corrupt practices. Backed by tough-minded investigators, these campaigns to slay tigers and swat flies have the effect of familiarizing people with the democratic language of the need for greater “scrutiny” and “probing” of officials. Talk of transparency becomes the new normal. But the stated official commitment to clean up government, as in Putin’s anticorruption drive and the high-profile corruption trials that swept Vietnam in 2017–2018, carries with it the serious risk of providing people with plentiful evidence of just how rotten the ruling apparatus is at all levels, and how unfit it is to govern. Encouraging citizens and judiciary officials to be fluent in the language of accountability and transparency might give them ideas about the need for different ways of governing, especially when officials are disciplined or prosecuted in court for their corrupt practices. Hence despots quickly learn that their own anticorruption efforts must be balanced by insistence on respect for “discipline” and “governing by means of law.” In other words, the point of anticorruption drives is to strengthen the hand of the rulers by surgically removing from the body politic the spreading tumors of corruption. The aim is to silence squabbling oligarchs, to get rid of opponents, and to impose tougher new practices on both officials and subjects, so that both groups’ loyalty and respect for the laws laid down by the rulers are rendered publicly unquestionable. The deep contradiction built into anticorruption drives is telling. It reveals that under despotic conditions law is never simply law. The rule of law has phantom qualities. It is at the same time real but elusive; there but not there; present but absent. Law means the observance, abuse, and non-use of law.
There are indeed spaces in which due process of law is practiced. In Russia, for instance, everyday legal disputes in such routine matters as traffic violations, divorce, and unpaid taxes are resolved in the courts by lawyers and judges guided by procedural and substantive written laws.46 In all despotisms, official sermons about law and the importance of “legalization” are commonplace. There are efforts, especially at the local level, to strengthen the hand of law through increased court funding, the expansion of law schools, improved training of lawyers and judges, and the provision of legal services to businesses. Yet the truth is that lawlessness, fed by a judiciary twisted and deformed by a ruling apparatus operating in the name of the people, is omnipresent, even in organized sports such as golf.
Again consider China, where during the Mao era golf was banned. Dubbed “green opium,” it was denounced as a frivolous, bourgeois pastime of expatriates, a “sport for millionaires.” During the Deng Xiaoping reforms, the official position flipped. Although inaccessible to most citizens of China except on television screens, grand golf courses gradually became available for the enjoyment of the country’s wealthy subjects. But in 2004, following waves of local protest against compulsory land acquisition and water diversion schemes, the central government in Beijing moved to prohibit the construction of golf courses. The prohibition was trumpeted officially as a blow against lawlessness. Yet during the next five years, things ran headlong in the opposite direction: some four hundred courses were constructed, including Shenzhen’s Mission Hills, China’s highest-rated golf and leisure resort, host of the region’s most important tournaments, and (so runs the boast) the world’s largest golf club.47 In more lawful polities, such establishments could only have been built with difficulty, due to public protest and legal action through the courts. But in China, local governments working hand in hand with developers, blind-eyed judges, and the police rode roughshod over local farmers and confiscated their land in exchange for a few bags of rice, all in defiance of lawful rule. Such practices accord with the ancient power principle that since the mountains are high and the emperor far away, legal instructions from above can easily be neutralized from below, for a handsome profit.
How can we make sense of this odd disconnect between well-written laws and practical realities infused with talk of legalization? Observers are divided. For some, the gap confirms that despotisms are resolutely on the low road toward a future where money talks and arbitrary power rules, camouflaged by law; despotism is likened to a giant corruption machine. Others see things more positively. For the optimists, the strange admixture of legality and lawlessness is a sign of unfinished political business. The new despotisms are on a rocky high road toward a land in which rule-of-law principles prevail in practice. Lawlessness is seen to be gradually withering away; it resembles a rickety footbridge leading toward a more mature rule-of-law system with local characteristics.
A third pathway is most probable: an odd mishmash of legalization and lawlessness that proves durable. Arbitrary exercises of power in many fields come wrapped in fine statements. At the same time, practical experiments extol the virtues of reducing “corruption” and restraining the power of the state through judicial and legislative means and through people’s participation in various sectors of the legal system itself. Functioning as a clear alternative to a robust power-sharing, monitory form of democracy shaped by the rule of law, this phantom rule of law (let’s call it) may be thought to be a fairy tale, or mere fiction. Closer inspection shows that it is something different, and more sophisticated, especially during those moments when power-hungry despots publicly bathe in the waters of legal reasoning and legal quarrels structured by their own legal codes.
The astonishing show trial and conviction of Bo Xilai in October 2013 was a drama-packed example of phantom rule of law in action. The trial scrambled the line between legality and lawlessness and showed why the new despotisms are not “dual states” marked by a wide gap between respect for law and power based on sheer force.48 The five-day trial in fact resembled a fine performance of shadow puppetry, a grand show whose players, well aware of the reality of the theater, acted out their scripts perfectly. It was intended by the Chinese rulers as irrefutable proof that their version of the rule of law is at work to hunt down the corrupt, so guaranteeing that China moves unhindered, steadily, and resolutely in the direction of a nation governed in accordance with law.
Not since the trial of the Gang of Four in 1980–1981 was the case of a senior official handled so openly.49 Bo was accused of embezzling government money and accepting multimillion-dollar bribes from Chinese businessmen, including a luxury villa in southern France. As former Party chief of Chongqing, he was said to have abused his power by dismissing his police chief in order to cover up the murder by poisoning of a British businessman by his own wife, Gu Kailai. The details, including allegations by Bo that he had been tortured and rumors that he had fainted twenty-seven times during pretrial interrogations that lasted seventeen months, proved riveting for many millions of Chinese people. Some details were especially bizarre, including news that the live-in mistress of an official who was being held in a state detention center tried to organize his escape. Court officials whet public appetites by allowing (admittedly incomplete) transcripts of the proceedings to be circulated throughout Chinese media. There was some live-streaming of video footage, and photographs circulated widely throughout every level of official media.
Flanked in every courtroom appearance by gangling policemen designed to make him look short and stumpy, Bo rose to the occasion. Hair dyed jet black, dressed in dark trousers and an open-necked white shirt, he found himself at the center of a courtroom drama that lasted for an exceptionally drawn-out five days. In a legal system that lacks juries, relies on written testimonies, and forbids defendants to contradict witnesses, Bo rejected every charge against him and took every opportunity to challenge the state prosecution point by point. Knowing well the old Chinese proverb that when power is concentrated high office is always dangerous, he insisted on cross-examining prosecution witnesses, including his wife, whose video testimony was played in court. Bo claimed she was “insane” and that, in any case, she had confessed to her crime under pressure. He vigorously denied her assertion that he had openly discussed with her on the telephone the embezzlement of state funds. “The most amateur of the corrupt,” he insisted, would never attempt such a thing. Bo arguably had a point, but for that revealed truth he was rudely rewarded: condemned to life imprisonment for bribery, embezzlement, and abuse of power, and packed off to the same prison in which his Communist-stalwart father once spent time. “The facts of the first instance verdict are clear,” the high court said in its final ruling, posted on its website. “The evidence is reliable, sufficient, and the sentence is appropriate.” Hard-nosed scholars of law present in the courtroom might have whispered dura lex sed lex (the law is hard, but it is the law), but the last loud word actually went to Bo’s principal enemy, the president of China and the general secretary of the Communist Party, Xi Jinping. Convinced that Bo was plotting to protect himself with the security services at his command, to disrupt a leadership transition, and to rip the Party apart, Xi was unforgiving. The lesson of the whole affair, he said, is that since China is a socialist country ruled by law that does not trample on the dignity and authority of the people, the courts and the police must be reformed so that hereafter “the handle of the knife [dāo bà zi] is firmly in the hands of the Party and the people.”50