Home Political science China’s Ethical Revolution and Regaining Legitimacy: Reforming the Communist Party through Its Public Servants
Anti-Corruption as State of Exception: A Parallel “Justice” System
Once a corrupt case is approved by the Party committee (the doctor), DICs (as nurses) have the authority to conduct an investigation. In the investigation process, the DIC may take various actions, such as contacting whistle-blowers, questioning witnesses and searching for physical evidence wherever applicable (Gong 2008: 148). Once the suspected official is arrested and detained, a suicide watch is maintained 24 hours a day. The charged official is put under “double restraint” (shuanggui ЖЙ), which means that the accused is confined for questioning at a stipulated time and in a stipulated place under DIC supervision, without judicial involvement or oversight (Guo 2014: 605). The DIC is capable of deploying all resources and taking a variety of investigatory measures, beyond the normal legal process, in order to “access intelligence, gather evidence, make arrests, interrogate suspects and educate and penalise corrupt officials in line with the Party rules” (Li 2014).
The determination of corruption is not based on a trail or a judge’s decision, and thus there can be no appeal against it: it is an inner-Party sanction giving rise to an administrative sentence (Veg 2014: 527). Even after a case has entered the legal process, the judicial work concerning the case may still get interrupted by the leaders of the local Party committee if they have questions about it (Gong 2008: 149). As a result, the anticorruption campaign has on occasion been perceived as being used for the purpose of personal vendettas, in an extra-judicial system of intra-Party discipline through administrative measures (Veg 2014: 528). As such, the administrative process introduced by the Party to address corruption can be described as a parallel justice system made possible by the state of exception. This is similar to the US response to 9/11, in which the Bush administration was attempting to produce a situation in which the emergency becomes the rule, and the very distinction between peace and war (and between foreign and civil war) becomes impossible (Agamben 2005: 22).
Sovereign power is the central apparatus that relies upon the ability to make a decision about whether certain forms of life are worthy of living. Such a decision produces a form of subject that is characterized by its very de-subjectification. This subjectivity is a bare form of life because it is stripped of “normal” legal and political rights (Brassett and Vaughan- Williams 2012: 31-32). By producing such lives as bare, sovereign power in turn shores up its own position as the apparatus needed by the victims it has produced (32). Thus, the conception of corrupt officials serves as an apparatus for the production of bare life, since it points to the way that politics itself is subsumed within a medicalized account of the relationships between subjects and governance (33).
This is what Agamben calls the state of exception, in which a “dual state” is produced whereby “a second structure” is placed alongside a legal constitution which is often “not legally formalised, that could exist alongside the other” (Agamben 2005: 48). In the context of China’s anticorruption campaign, we can say that a system of shadow justice has been introduced for the purpose of rehabilitating the shadow state. In many ways, those subjected to this shadow justice system become, as noted above, sequestered in camp like places for the interment of “enemies” of the people. Thus, the anti-corruption campaign comprises a camp, in which “the enemies who have to be done away with are not adversaries in the political sense of the term; they are threats, either external or internal, to the population and for the population” (Wilmer and Zukauskaite 2015: 5). The state of exception is a space and time where normal jurisdiction is suspended and where living beings who used to be protected by the law now become abandoned (6).
In this sense, China can be viewed as an example of a modern state established and defined through the state of exception (Agamben 2005: 2). The state of exception radically erases any legal status of the individual, thus producing a legally unnameable and unclassifiable being (3). The officials under investigation are neither prisoners nor persons accused, but simply “detainees,” and they are the object of a pure de facto rule of a detention that is indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from judicial oversight (3-4). The declaration of the state of exception itself is not a special kind of law (4). The state of exception is not only a technique of government but also is itself the constitutive paradigm of the juridical order (7).
What is unusual about this particular state of exception is that it has been introduced to address the moral degeneracy of the Party, rather than in response to any military or economic emergency normally found in the west (13). Thus, the security (and associated sustainability, legitimacy and authority) of the Party justifies the necessity of this particular state of exception; rather than rendering the illicit licit, necessity acts here to justify a single, specific case of transgression by means of an exception (24). Thus, the discourse of necessity is none other than a theory of the exception by virtue of which a particular case is released from the obligation to observe the law. Necessity is not a source of law, nor does it properly suspend the law; it merely releases and is justified by a particular case, which is neither illicit nor licit (25). In this sense, fact and law coincide with each other in the state of exception (26). This state of exception is violent, but it is juridically organized violence based on the fact that there is a necessity identified by the Party authority (29). In this context, the inspection officials are the place where the proximity and the almost constitutive exchange between violence and rights (Agamben 2000: 104) can be most closely observed.”
The state of necessity is interpreted as a lacuna in public law, which the executive power is obligated to remedy. This is why the state of exception appears as the opening of a fictitious lacuna for the purpose of safeguarding the existence of the norm and its applicability in a normal situation (Agamben 2005: 31). Thus, the Party is outside and yet belongs to the law, which is the topological structure of the state of exception. The state of exception becomes a force of law without law (38-39). In this sense, the Party as the sovereign can exist in the state of exception, where its legitimacy depends on its moral superiority.
This is not a simple negation or negative judgement, but more about a kind of affirmation of the law’s rule by way of negation (Huang 2012: 178). Similarly, as Brassett and Vaughan-Williams argue, in the contemporary world, the nature of subjectivities have changed, in which de- subjectification is precisely through the performative act of denying or negating subjects’ subjectivity through which their subjecthood is constituted (30). It is only because of this inclusive-exclusive structure that there can be an inner solidarity and contest between binaries that produces hybridization and the remnant. Hybridization is therefore the obverse of modern politics, which “maintain a secret solidarity with the very powers they sought to fight” (179). Thus, in the case of both officials suspected of corruption and inspection officials, there is tension between subjective innocence and objective guilt, between action and responsibility, between what one has done and what one feels guilty about (181).
This is because the discourse of problems of officialdom acts as a selfreinforcing apparatus of control (Brassett and Vaughan-Williams 2012: 33). This construction was both enabled by—and symptomatic of— inscribing dividing lines between political subjects (35). Once their status as political victims was secured, their political agency was essentially diminished (de-subjectified), and the path was clear for interventions on their behalf (35). Thus, the problematization of officials, or concepts such as “good morals,” “proper initiative,” “important motive,” “public security and order,” “state of danger” and “case of necessity” refer not to a rule but a situation. In this context, the rule of law that would be able to regulate all causes and situations is rendered obsolete (Agamben 1998: 172).
This ban thus makes the binaries abolish each other and enter into a new dimension (Attell 2014: 17). The meaning of this ban bar is the valorized domain of originary presence—one that exceeds or precedes those that represent either side of the fracture (34). Thus, the oppositions cannot be read as deconstructable binaries that contaminate each other, but rather as revealing a vacuum at the centre of every articulation and a sovereign-exceptional decision that every time attempts to hold them together at this fictitious juridical nexus point (136). It is here that the notion of remnant and that of hybridization is knowable and enables the emergence of the solution to the problem of paradox and contradiction.
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