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Comment by ls612 | Hacker News Reader

I’d suggest that one of the key innovations of authoritarian control over the populace in the 21st century vs the 20th is that surveillance and compute means the authoritarian states don’t need to use the brute force of the legal system against the average person to keep power. They can focus only on key targets while not molesting the broader population in the same way the Stasi et al did. I’d go so far as to say for the typical American and the typical Chinese their experience of the legal system is virtually identical, in that they don’t experience it. But for those targeted by the system, the precise mechanism may vary but the certainty of the outcome does not.

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I can see your point of view, though "those targeted by the system" implies a lot of circumstance and conditions.

It's very true that both citizens' experience with their legal system changes drastically when state interests and national security are implicated. Like China, western legal systems recognize national security and public order as compelling state interests.

The difference is that an individual in China is far more likely to find themselves at an intersection of state and political interest with their individual activity (be it art, speech, action, association, religion, property) than one would find in the west. In China, the NSL structurally defines political security and cultural and social order as being within the national security framework. That's intentional and sits in contrast with the western tradition where the state generally needs to justify restrictions on protected individual conduct with a claim of state interest, and those claims are frequently subjected to an adversarial review process.

As you say, technology has already made surveillance far more intrusive and effective than anything available in the 20th century. Of course, the effect of the Stasi wasn't simply the surveillance, it was the uncertainty of never knowing if your colleagues, neighbors, or even family could be personally trusted - that environment of uncertainty was an intentional social control element. In a similar but not identical way, uncertainty is leveraged in the Chinese legal system: one may not necessarily know when their activity (or even past activities) have suddenly fallen on the wrong side of the national security line. This variability is not a bug in the system but a deliberate feature, and stands in contrast with the western legal systems.

Once entangled, there are bright line differences in the structure of those systems - opportunities to appeal are far fewer in China as a foundational difference, but opportunities to challenge the basis of the laws themselves and the justification for a claimed state interest essentially border on being non-existent. In contrast, individuals or classes of individuals bringing facial or as-applied challenges to overturn regulation or a claim of compelling state-interest is a frequent occurrence in US (for instance).

If we consider it a given that the state naturally seeks greater control of individuals (and I do), then the western legal system and particularly the US legal system, has been uniquely effective at constraining the state. In China, for example, it's not even a consideration that CCP leadership can be curtained through administrative proceedings.

But there's no arguing that in the US, if the stakes are high enough, they'll "get their man". On the flip side, the surveillance of the state itself by the citizens has also restricted the ability of the government to act with as much impunity as they did, say, sixty years ago. Specifically, policy body cams, ubiquitous cell phone video, one-party consent laws, legal clarity on recording public officials in public spaces, FOIA laws, etc. Nonetheless, it's disturbing and frustrating how inscrutable some very public events remain.

And this is different in what substantive way to the western system? The vast vast majority of ordinary Chinese will never interact with their national security state. This reads as you saying I’m right without saying I’m right.

>"'Show me the man and I’ll show you the crime' is the fact of how western legal systems work, the rule of law is a tale that they tell to impressionable schoolchildren."

>"three felonies a day and the way China does it are fundamentally the same thing"

These are the statements that are incorrect for the reasons above.

Constraining the scope of those statements after the fact to narrowly apply to cases where individuals come to the particular attention of severe national security concerns in the respective countries allows for some "correctness" to the statement. But you have moved the goalpost if we are to read those comments so narrowly now - congrats! With appropriate qualifications your statements have become less wrong!

As mentioned, in contrast to the US, in China, social order and political security are scoped into the definition of national security - meaning that even if the mechanisms are the same, your ordinary Chinese citizen is far more constrained by the boundaries of the "national security" box than the US citizen. That an average citizen can successfully navigate the boundaries of their smaller box isn't the useful measurement when contrasting systems - all that fact does is convey that touching a hot stove gets you burnt and people learn from that. It does not change the fact that the Chinese legal system is fundamentally different than the western legal tradition in how it perceives rights and individual liberty and what recourse the average citizen has to challenge their encounters. This speaks directly to both of your claims at a high level.

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