Were Chinese rulers above the law? Toward a theory of the rule of law in China from early times to 1949 CE.

• Author: Fang, Qiang

Abstract

In recent years, there has been a growing awareness both in China and elsewhere of the importance of law in Chinese efforts to bring order--if not justice--to society and the world. Even the most admiring students of Chinese legal history, however, have rejected the idea that the Chinese ever succeeded in establishing the rule of law--as opposed to rule by law--including, especially and critically, the subordination of the ruler to legal principles and practices. This article uses a fresh conceptualization of the entire Chinese historical record from earliest known times to the mid-twentieth century CE to argue that, according to a commonly agreed upon definition of "the rule o flaw," we can discern several different kinds of regimes of the rule of law in China's past that included both the ideal and, in many cases, the reality of holding the ruler accountable to the law. The implications of this suggested shift in the paradigm of Chinese legal history for Chinese politics in the period since 1950 CE will be addressed in another venue.

TABLE OF CONTENTS I. INTRODUCTION A. Defining the Rule of Law B. The Existing Paradigm for Chinese Legal History C. Toward a New Theory of the Rule of Law in Chinese History II. ORIGINS OF LEGAL PRINCIPLES AND PRACTICES IN THE ZHOU III. INTELLECTUAL FOUNDATIONS IN THE SPRING AND AUTUMN AND WARRING STATES PERIODS IV. THE QIN CENTRALIZATION V. THE HAN POPULIST ORDER VI. WEI, JIN, AND NORTH AND SOUTH DYNASTIES: THE PERSISTENCE OF THE IDEAL AND SOME OF THE REALITY OF THE RULE OF LAW IN A PERIOD OF DISUNION AND DISORDER VII. SUI REUNIFICATION VIII. THE TANG: AN ELITIST REFORMIST ORDER IX. FIVE DYNASTIES, TEN KINGDOMS, LIAO, XIXIA, SONG, AND JIN: ANOTHER PERIOD OF DISORDER ACCOMPANIED BY CONCERN FOR THE RULE OF LAW X. THE YUAN: ANOTHER AUTHORITARIAN CENTRALIZING POLITY XI. THE MING: ANOTHER POPULIST ORDER XII. THE QING: ANOTHER ELITIST ORDER XIII. THE REPUBLIC: DISUNION AND ANOTHER CENTRALIZING STATE XIV. CONCLUSIONS I. INTRODUCTION

1. Defining the Rule of Law

   While Chinese and other scholars define "the rule of law" (fazhi) in many different ways, they generally agree that it should be distinguished from "rule by men" (renzhi), in which personalities matter most, (1) and from "rule by law" (fazhi), in which politics take priority. (2) Stated more positively, observers in both China and elsewhere and in both the past and the present tend to agree that the rule of law requires at least two elements. First, the ruler must be subject to, or at least not above, the law; and second, the law must be applied equally, or at least equitably, to all members of society. (3) Other criteria are possible, of course, including: transcendent values, natural law, rationality, publicity, fixity, consistency, universality, constitutionality, separation of powers, an independent judiciary, professional lawyers, human rights, and broad political participation. (4) In fact, we shall encounter many of these characteristics in various legal regimes in China. But these features, we submit, are or at least should be regarded as secondary to the above two core elements, if only because they are subject to wider variation over space and greater change over time. Few, if any, historical polities have fully and consistently exhibited the core elements of the rule of law, let alone manifested the entire panoply of ancillary features often associated with it. (5)

2. The Existing Paradigm for Chinese Legal History

   In the standard view widely held by Chinese and others, China lacked the rule of law throughout its long history for many reasons. First, the dominant intellectual tradition of China was "Confucianism" (rujia sixiang) that valued the rule by men. (6) The most relevant other school of thought, Legalism, called only for the rule by law. (7) Legalism's defect was dramatized by its association with the despotic Gin dynasty that unified China in 221 BCE. (8) In this view, Legalism's limited promise of equality before the law was subsequently emasculated by a process of "Confucianization" in the succeeding Han Dynasty (206 BCE-220 CE). (9) During the Han, Chinese emperors ruled by will or whim over a hierarchical society. That "imperial society" subsequently grew in size and sophistication over two millennia without significant change. (10) The only shifts were an intellectual reaction to Buddhism (that produced "neo-Confucianism") and a political reaction to Mongol rule (that involved "brutalization"). These developments merely heightened despotism and hardened hierarchies. (11) Only with the decline of China's last dynasty, the Qing (1644-1911 CE), and the arrival of Western ideas and institutions did the Chinese state really change. Finally, in the first half of the twentieth century, the Chinese transformed their inherited, traditional, feudal empire into a modern, capitalist nation state. The significance of that supposed transformation, as well as that of our alternative perspective for the legal regime of the Chinese People's Republic will be addressed in future publications. (12)

3. Toward a New Theory of the Rule of Law in Chinese History

   The recent discovery of new texts from early Chinese history and access to new archival materials pertaining to the last few centuries now permit--even require--a fresh theory regarding the origins, nature, development, and incidence of the rule of law in China. According to the theory entertained here, the rule of law originated in the ideas and institutions of the earliest historical polities, including particularly the Zhou (trad. 1122-256 BCE) that based its legitimacy on the mandate of heaven and nature (tianming). The rule of law acquired its theoretical foundations during the Spring and Autumn and Warring States period (770-221 BCE) in all three major schools of Chinese political thought: Ruism (known in the West as Confucianism), Legalism, and Daoism. The Gin dynasty (221-206 BCE) used Legalist principles to centralize China in the third century BCE, but, significantly, it was soon overthrown and replaced by the Han. The Han drew on all three of the major schools of thought plus other ideologies to establish a modicum of political order and social justice for four centuries. The Han then gave way to a long period of disunion characterized by the pervasive influence of Buddhism that added its own, as yet largely unstudied, perspectives on law.

   The Sui (589-618 CE) used Buddhism as well as other ideologies to reunify China. Together with its more durable sequel, the Tang (618-907 CE), the Sui established a kind of rule of law that spread to the rest of East Asia. The Tang eventually declined in a process remarkably reminiscent of the Zhou, but its legal system remained normative for China and much of East Asia. The next several hundred years saw the rise and fall of various regional polities: the Five Dynasties/Ten Kingdoms, Liao, Xi Xia, Jin, and Song. Then, the Mongol-led Yuan (1279-1368 CE) reunified and attempted to recentralize China and much of East Asia by means of a rule of law that was both lax and comprehensive, including numerous ethnic groups in an oecumene of unprecedented size. With the break up of that system, another commoner rebel rose to power. He followed the model of the founder of the Han to establish the Ming (1368-1644 CE) which enforced a comprehensive legal regime designed to rein in the bureaucracy, serve the people, and maintain China's centrality in East Asia.

   After the Ming fell in a process strongly resembling the fall of the Han, the Qing (1644-1911 CE) drew on the experience of several previous orders, including particularly the Tang, and used ancient legal principles, especially those of the Zhou, to bring order to a burgeoning population and extensive realm. At its height in the eighteenth century, the Qing attracted tribute from many states in Asia and won respect among Europeans and Americans. During the nineteenth century, as the Qing declined, it joined much of the rest of the world in a subordinate position in a newly forming, European-dominated system. At the end of the Qing and in the Republic (1911-1949 CE), the Chinese revised their legal system in an effort to recover sovereignty over themselves and foreigners residing in China. In 1928, the Guomindang established a new capital in Nanjing and regained tariff autonomy, but, like the Song on which it modeled some of its policies, it proved unable to reassert central control over much of the country including the treaty-ports that remained in foreign hands. During the 1930s, the Nanjing government confronted an American economic crisis, Soviet socialist revolution, and Japanese military expansion. It turned to European fascism and the Qin model in a desperate effort to regain autonomy and control. The result was a drift from a draconian form of the rule of law to rule by men and then on to rule by law and even lawlessness that ended with the overthrow of the Republic in 1949. (13)

   2. ORIGINS OF LEGAL PRINCIPLES AND PRACTICES IN THE ZHOU

      The Zhou dynasty developed the idea of the superhuman mandate of heaven and nature that both legitimated and problematized its replacement of the Shang (circ.1750-1122 BCE). The mandate also justified and limited the authority of the Zhou kings who were conceptualized as the sons of heaven (tianzi). The Zhou monarchs promulgated the first written laws in Chinese history that have come down to us. They include the Kanggao (Declaration of Kang), in which King Wu (r. 1122-1116 BCE) instructed a young prince to follow the example of the Shang rulers in administering justice. Early statutes also include the Luxing (Punishments of Lu), supposedly addressed by King Mu (1001-947 BCE) to a minister. This statute argued against the five bodily mutilations (nose, ears, castration, branding) said to have been used by the Miao. (14) The Zhou Chinese were clearly ambivalent toward laws, regarding them primarily as inheritances from...