Rule of Law Ideals in Early China


JOURNAL OF CHINESE LAW
VOL. 6 SPRING 1992 NO. 1

Rule of Law Ideals in Early China?
KAREN TURNER*

Traditional Chinese legal culture has generally been characterized by
its deeply entrenched predilection for authoritarian, one-man rule over
the more impersonal rule of law.' But new materials on law from
Chinese archaeological sites have prompted a reassessment of the role
of law in the late classical period - a discussion that has taken on
particular meaning in the present as Chinese reformers and scholars
scrutinize their traditions in light of the urgent need to reform
contemporary legal institutions.2 This article argues that certain key
concepts generally considered fundamental to the ideal of a Rule of
Law can be detected in writings produced in the era that witnessed the
founding of the first centralized state in China in 221 B.C., its

o Copyright 1992 by Karen Turner
* This paper %,as first presented in the East Asian Legal Studies Speaker Series, Harvard

Law School, in April 1989 and delivered in modified form at the Annual Meetings for the
Association of Asian Studies, New Orleans, April 1991. I am particularly grateful for the
support of the East Asian Legal Studies Program at the Harvard Law School and for the
intellectual community there who made this study possible and interesting: William Alford,
Mary Buck, Rebecca French, Tai Van Ta and Susan Weld. The Jiang Jingguo Foundation
funded portions of the time that I used to write this revised essay.

In addition, I thank James Feinerman of the Georgetown University Law Center, Stanley
Lubman of Thelen, Marrin, Johnson and Bridges, Lester Ross of Jones, Day, Reavis & Pogue,
and R. Randle Edwards, Director of the Center for Chinese Legal Studies, Columbia
University, all of whom offered great help as I gathered materials and learned about some of
the complex issues of comparative law. The editors of the Journal of Chinese Law, especially
R. Peerenboom, deserve a special thanks for their suggestions for improving the argument in
the final version of the article. To my teacher, Dr. H. P. Lee, I owe a longstanding debt for
his help with translating classical texts.

See a critique of this position in William Alford, 7he Inscrutable Occidental? Iinplica-
tions of Roberto Unger's Uses and Abuses of the Chinese Past, 64 TEX. L. REv. 915 (1936).
See also Karen Turner, Sage Kings and Laws in the Chinese and Greek Traditions, in THE
HERiTAGE OF CImNA 86 (P. Ropp ed., 1990).

2 See generally notes 4-12 and accompanying texts. I use the term "late classical" in this
article to refer to the period that spanned the mid-Warring States through the Han dynasty. The
political thinking produced in this era is unified by its preoccupation with legitimating the
centralized state, a process that began at least a century before the Qin unification and
continued through the Han dynasty.



JOURNAL OF CHINESE LAW

disintegration less than two decades later, and the gradual consolida-
tion of the empire under the Han dynasty after 206 B.C.3 As I hope
to demonstrate, the legal theory that emerged in this period of state-
building supported an authoritarian government, but it did not
necessarily sanction an arbitrary, lawless abuse of power. I am not
arguing that true proponents of the Rule of Law, as it is articulated
in contemporary American theory, existed in early China, or that
institutions that supported the ideal of the Rule of Law emerged at
that time, since these are relatively recent developments in the West
itself. But I do suggest that evidence from a range of third and second
century eclectic texts demonstrates that the differences that separate
classical Chinese and Western political theory are to be found not so
much in the relative weight that each tradition assigned to law and
standardized procedures as in their assumptions about the limits of
participation in legal decisions.

Part I of the article points out that any discussion of a Rule of Law
in China is inevitably comparative, because the notion is so closely
linked with the deeply ingrained respect for law in the Western
classical tradition and the institutional developments peculiar to the
nation states that emerged in early modern Europe. Even "socialist
legality" is defined in reaction to bourgeois conceptions of the Rule
of Law.4 A brief survey of modern Chinese writing on the topic
demonstrates that a Western-centered concept of the Rule of Law
continues to serve as a benchmark for modern Chinese scholars as
they reflect on the role of law in their past and present. This section
briefly notes how new materials on law from Qin and Han archaeolog-
ical sites have altered perceptions of the role of law in the early
empires in China, but points out that despite the interest in law that
these new finds and interpretations have stimulated, a workable
conceptual framework for discussing law in early China has not been
established. I then extract from recent American writings on the Rule

Throughout the article the author has relied on various source materials for which no
English translations are readily available. In such cases, the author's expertise is relied upon
in place of independent verification of the citation. All translations are the author's own work,
but major translations of texts that have been consulted are indicated. The pinyin system of
romanization is used in the article, but original romanizations of titles are maintained in the
footnotes. Titles of classical texts are kept in the original because these are best known by their
original Chinese titles and conventions for translating them are not consistent.

' See Martin Krygier, Marxism and the Rule of Law: Reflections after the Collapse of
Communism, 15 LAw & SOCIAL INQ. 633 (1991). For a useful survey of current writing on
the function of law in a socialist society in transition, see Frankie Fook-lun Leung, Some
Observations on Socialist Legality of the People's Republic of China, 17 CAL. W. INT'L L.J.
102 (1987).



THE RULE OF LAW IN EARLY CHINA?

of Law the major themes that can serve as categories for sorting out
fundamental features of Chinese legal thinking. Part II demonstrates
that a comparison of classical Chinese and Western considerations of
the problems of balancing formal laws and moral leadership in
government illuminates the attention that certain Chinese writers paid
to the value of subordinating rulers to laws. In Part IH, I discuss the
development of a transcendent, universal standard for positive law, and
in Part IV I show the importance that Chinese texts assigned to clear
laws, consistent punishments and accountable officials. That law in
China meant far more than coercion, and indeed was believed to guide
the use of force, is demonstrated in Part V. I conclude the article by
cautioning that the application of a Western-centered theory to the
Chinese case does not take account of how fundamental episte-
mological and cosmological notions affected legal theories and
institutions.

I. METHODS AND MATERIALS

The Western notion of the Rule of Law has often served as a
benchmark for evaluating early Chinese legal culture. For example, in
his comprehensive study of classical Chinese political philosophy,
Hsiao Kung-ch'uan, writing in the 1940s, found evidence in Warring
States (771-221 B.C.) texts of the theoretical importance assigned to
law as a measure to guarantee certainty in punishments, to preserve
public interests over private concerns, and even to guide the ruler
himself. He called these features of Chinese thinking "acceptable," but
then lamented: "Throughout the two thousand years of China's
imperial history, when did there ever appear a single instance of a
government embodying the Rule of Law?" 5 In a similar search
through the past for the roots of modern political institutional insta-
bility in China, Liang Ch'i-ch'ao (1873-1929) had earlier found a
more positive role for law in the Chinese tradition; but like Hsiao
Kung-ch'uan, he believed that the lack of a formal, Western-style
constitution hindered law from serving as a supreme authority in the
Chinese state and prevented the development of a constitutional
monarchy and a democratic government.6 For these thinkers, as for
most Western sinologists, fazhi (rule by law) in classical Chinese

5 HsIAo KuNG-CH'um, A HISToRY oF CHESE PoLmCAL THouGrT 446 (F. Mote
trans., 1979).

6 LIANG CH'I-CH'AO, HISTORY OF CHINESE POLITICAL THOUGHT 113 (L. Chen trans.,

1930).

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thought meant in reality, renzhi (rule by man), because the Legalists
placed the ruler above the law and the Confucians valued the judgment
of moral men more than legal institutions creating good government.
Moreover, in the general view, fazhi never referred to the institution-
alization of a "genuine" Rule of Law but to a regime governed by
harsh laws, in particular the punitive laws advocated by the fourth and
third century Legalist theoreticians and implemented in the state of Qin
in the mid-fourth century. 7 This argument has recently been reiterated
by Liang Zhiping in an essay that compares concepts of law in China
and classical Greece. The author finds little to admire in the early
Chinese tradition, in large part because the Legalists, who led the way
in legal reform, operated as the "supporters of fanatic absolute
monarchy." 8 According to Liang:

Law was punishment. . . . According to traditional ideas, law
was above all a tool of suppression. It was one of countless
methods of governing, which could be used and constituted at
will by the ruler. ... [T]here were rulers, but there were no
laws of governing. . . . This fact was the source of what the
ancient Chinese political system considered the "rule of man. '

Similarly, China's "feudal past," which was dominated by a devo-
tion to rule by man, was castigated in a 1982 article in People's Daily
that declared: "No modern man [sic], particularly a modern socialist
citizen, will want to see 'Rule of Law' replaced by 'Rule of Man,'
nor will he compare our cadres of today with the officials of the
past."" ° This author praises China's most recent constitution as a
necessary element of modern statehood, because Western states have
been founded on constitutional governments and the principles of the

A survey of opinions about the historical significance of Qin's imperial system is in LI
YUNING, THE FIRST EMPEROR OF CHINA: THE POLITICS OF HISTORIOGRAPHY (1975). For a
standard description of law in China, see CHARLES HUCKER, CHINA'S IMPERIAL PAST 163
(1975) ("Chinese law was always merely an instrument of government; it was not thought to
have divine sanction, nor was it considered an inviolable constitution."); ViTALY RumnN,
INDIVIDUAL AND STATE IN ANCIENT CHINA: ESSAYS ON FOUR CHINESE PHILOSOPHERS 70
(1976) ("Legalist law was intended to serve the despot, not to limit him.").

' Liang Zhiping, Explicating 'Law': A Comparative Perspective of Chinese and Western
Legal Culture, 3 J. CHINESE L. 81 (1989).

9 Id. at 89.
" Feng Bing, From 'Rule by Man' to 'Rule by Law', RENMIN RIBAO [PEOPLE'S DAILY],

Dec. 7, 1982 at 8, translated in Joint Publication Research Service [JPRSI, July 7, 1986. In
this paper I have used the term "man" rather than "human" when it seems to me that only
males are included in the category of persons affected by these discussions.



THE RULE OF LAW IN EARLY CHINA?

Rule of Law. Indeed, even one of the most outspoken Western critics
of the Rule of Law, Roberto Unger, uses the negative example of
classical China to demonstrate that only in modern Europe did
conditions exist to support a "legal order," which he defines as a
society based on the Rule of Law." Therefore, a "true" legal order
is often identified, even by Chinese scholars, as one based on the Rule
of Law. Moreover, implicit in these arguments is the notion that
China must reject its own "flawed" classical heritage in order to build
a modern legal system.

Before beginning a discussion of the attributes of the Rule of Law,
it is important to note that despite the attractions of a formal legal
system for curing the ills of contemporary Chinese society, the value
and efficacy of legal formalism has been challenged at various times
in the West. 2 Whether rigid formal laws or creative human judg-
ments can most effectively promote justice is a problem that has
plagued thinkers since Plato's celebration of the rule of the philoso-
pher king as the best form of government. The dilemma is a natural
one, as Morris Cohen points out: "It would thus seem that life
demands of law two seemingly contradictory qualities, certainty or
fixity and flexibility; the former is needed that human enterprise be
not paralyzed by doubt and uncertainty, and the latter that it be not
strangled by the hand of the dead past."" Thus the problem of
defining an appropriate balance between human discretion and the
mechanistic application of laws has continued to trouble legal theorists.
H.L.A. Hart, for example, argues that laws created according to rules
recognized by the community as legitimate can then be applied
uniformly, while Ronald Dworkin defines law as "an interpretive
concept." According to Dworkin,

[I]aw is not exhausted by a catalogue of rules or principles, each
with its own dominion over some discrete theater of behaviour.
Nor by any roster of officials and their powers each over part of
our lives. Law's empire is defined by attitude, not territory or

n ROBERTO UNGER, LAW IN MODERN SOCIErY: TOWARD A CRITICISM OF SOCIAL

THEORY 86-87 (1976)
12 For a useful survey of the many debates on the Rule of Law, see Dean Spader, Rule

of Law v. Rule of Man: 7he Search for the Golden Zigzag Between Conflicting Fundamental
Values, 12 J. CRi. JusT. 379 (1984).

Is MoRis COHEN, LAW AND THE SOCIAL ORDER: ESSAYS IN LEGAL PiLOSOPmY 261
(1967).

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JOURNAL OF CHINESE LAW

power or process. . . .It is an interpretive, self-reflective attitude
addressed to politics in the broadest sense.' 4

The letter of the law is far too simple to square complex ideals with
actual implementation in Dworkin's utopian scheme: "That is, anyway,
what law is for us: the people we want to be and the community we
aim to have."' 5 Not only do theorists disagree about the merits of
the formal laws in a Rule of Law system, they also argue about the
aims of a legal order. Some view law as promoting economic
efficiency,' 6 while others argue that it guards individual rights and
happiness against manipulation by the officials of the state, 7 serves
as a purposive instrument for social cohesion and provides a set of
guideposts for individuals, particularly legislators.' 8 And in the view
of the most serious critics of the Rule of Law, such a system does not
serve justice at all but simply masks the interests of the ruling
class. 9

Despite these different opinions about values and definition,
however, one is struck by a common assumption that a legal system
as a whole must operate according to rules that transcend the system
itself - even if particular laws must be abandoned at times in the
interest of fairness. Nor do those critics who challenge the value of
the Rule of Law advocate that decisions be rendered in an institutional
and normative vacuum. As Judith Shklar has noted, "[t]he natural
lawyer and the legal positivist agree about the necessity of following
rules; they disagree about what to do when a conflict between rules
exists." 2' Thus, the Rule of Law has been challenged, but most
theorists share an understanding of its basic features.2

,4 RONALD DWORKIN, LAW'S EMPIRE 410-11 (1986).

15 Id.

16 See F.A. HAYEK, THE CONSTITUTION OF LIBERTY (1960).

'7 See JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980)

1$ See LON FULLER, LAW AND MORALITY (1964)

'9 See, e.g., UNGER, supra note 11.
20 JUDITH SHKLAR, LEGALISM 106 (1964). See also Tim Kaye, Natural Law Theory and

Legal Positivism: Two Sides of the Same Practical Coin? 14 J. LAW & SOC. 303-20 (1987).
"' It is important to point out, however, that despite similar assumptions about the content

of the Rule of Law, the German theory of the Rechtsstaat, which is linked to the historical
emergence of the state as a creation of the bourgeoisie in the nineteenth century, is different
from the English doctrine of the Rule of Law, which arose out of conflicts between the King
and Parliament in the seventeenth century. Briefly, according to Franz Neumann, "[i]n the
British doctrine, the centre of gravity lies in the determination of the content of the laws by
Parliament. The German theory is uninterested in the genesis of the law, and is immediately
concerned with the interpretation of a positive law, somehow and somewhere arisen. . . .The
English bourgeoisie translated its will into law through the medium of Parliament; the German



THE RULE OF LAW IN EARLY CIHNA?

The essential requirements for a legal system that subordinates
ruling elites to law, the ultimate objective of the Rule of Law, are
described most clearly by contemporary natural law theorists, in
particular Lon Fuller and John Finnis.2' But their categories are used
in other contemporary writings as well.

1) The first requirement, that laws be general in scope and applica-
tion, gets to the heart of the problem of distinguishing laws from
more immediate and narrowly intended rules and commands.' As F.
A. Hayek stated, laws differ from commands by virtue of their
generality and universality; law is a "once and for all command
directed to unknown people."24

2) Furthermore, most theorists would agree that implicit in the
notion of the generality of law is the idea that in a government
committed to the ideal of the Rule of Law, the law must not be
created and altered simply by dint of the will of any single individual.
In a Rule of Law system, certain conditions must be met: The formal
laws created by a legitimate authority should be clear, mutually
consistent, prospective rather than retrospective, publicly announced,
altered only through established procedures, and reasonably possible
to enforce and obey.'

3) Procedural integrity is a key aspect of implementation in a Rule
of Law system. So, when scrutinizing the mechanisms that actually
limit the power of rulers to dominate individuals, one must look for
procedures that guarantee that law is enforced in a manner that
regularizes due process for arrest and trial, an organized system for
appeals, and a principled application of punishments. "Procedure in

bourgeoisie found given laws which were systematised and interpreted in a very refined may
in order to secure the maximum liberty against a more or less absolute state." FRAtNZ
NEUMANN, THE RULE OF LAW: POLITICAL THEORY AND THE LEGAL SYSTEI IN MODEN
SOCIETY 179-86 (1986). For a useful discussion of how the medieval conception of the
supremacy of law is applied in the modern American state, see ELLIS SANDOZ, A GOVFR-
iEN'Ir OF LAWS: POLITICAL THEORY, RELIGION, AND THE AMERICAN FOUNDIG 229-34

(1990). Sandoz sees English constitutional law as emerging out of the set of reciprocal
obligations that characterized feudal society.

S See FULLER, supra note 18; FINNIS, supra note 17.
See FULLER, supra note 18, at 46-48. Most contemporary legal positivists would not

agree with Austin's contention that laws are commands backed by the threat of coercion. The
generality of law is a characteristic that seems to be essential to the concept of law itself. See
H.L.A. HART, THE CONCEPT OF LAW 25-48 (1961). See also UNGER, supra note 11, at 67.

HAYEK, supra note 16.
FULLER, supra note 18, at 49-81; F9NNs, supra note 17, at 250.

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criminal cases is what this Rule of Law is all about," according to a
recent critique of the history of the Rule of Law.26

4) In the American tradition, contemporary legal systems are judged
healthy only if judicial bodies remain free from executive pressure and
political control: "The idea is not so much to ensure judicial rectitude
and public confidence, as to prevent the executive and its many agents
from imposing their powers, interests, and persecutive inclinations
upon the judiciary. The magistrate can then be perceived as the
citizen's most necessary, and also most likely, protector."27 Impor-
tance is also placed on the interpretive role of legal professionals
imbued with a commitment to abide by the laws and restrained by
procedures that inhibit manipulation.28

5) The Rule of Law rests on congruence between the law and the
behavior of officials who produce, interpret and implement it. As
Fuller points out, "[t]his congruence may be destroyed or impaired in
a great variety of ways: mistaken interpretation, inaccessibility of the
law, lack of insight into what is required to maintain the integrity of
a legal system, bribery, prejudice, indifference, stupidity, and the
drive toward personal power."29 He goes on to state that in the
American system, it is the courts that attempt io maintain conformity
between the law as it is declared and its actual administration. The
requirement of offical accountability in ensuring the predictability of
law is emphasized by John Finnis: "Those people who have the
authority to make, administer, and apply the rules in an official
capacity (a) are accountable for their compliance with rules applicable
to their performance and (b) do actually administer the laws consis-
tently. "30

6) An underlying concern of post-War theorists has been to distin-
guish a system that utilizes either the formal rules of law or malleable
natural law theories to serve the evil purposes of rulers from one that
views law as a means to attain substantive ideals of justice that serve
a wider community.31 It seems that it is a consonance between
universal norms and laws that distinguishes a Rule by Law from a
genuine Rule of Law. As the Nazi state taught the Western world,

' Judith Shklar, Political Theory and the Rule of Law, in TiHE RULE OF LAW: IDEAL OR
IDEOLOGY 4-5 (Alan Hutchinson & Patrick Monahan eds., 1987).

2' Id. at 5.
' FINNiS, supra note 17, at 270-71.
9 FULLER, supra note 18, at 81.
3o See FINNIS, supra note 17, at 270-71.
31 The student of Chinese legal history will find much of value in this regard in the

discussions in FULLER, supra note IS and NEUMANN, supra note 21.



THE RULE OF LAW IN EARLY CHINA?

simply holding rulers and magistrates accountable before the law was
not sufficient to guard justice, since laws can serve immoral ends.
Thus, standards that transcend the positive laws themselves, and that
represent goals other than those defined by the state, must exist to
judge the legitimacy of the legal system as a whole.3Z

In early China, as in the classical West, there is little evidence that
the judicial system remained institutionally separate from executive
pressure. Nor can we identify a distinct class of legal professionals
charged with interpreting the law or a conception of natural rights.
Indeed those who claim that the institutional Rule of Law is a recent
and unique product of European political development are correct. But
other more universal characteristics of the Rule of Law can be found
in the writings of the major Legalists and certain well-known eclectic
writings from the mid- to late-Warring States period through the first
century of the Han dynasty, particularly the Huainanzi and Guanz.
Newly discovered writings have played an important role in adding to
the information already available in the transmitted tradition.

A more positive assessment of the role of law in early China has
been generated by the discovery of legal materials in excavations from
two early imperial sites. The Mawangdui texts found in a Western
Han dynasty (206 B.C.- A.D. 9) tomb in 1973-74 and the Shuihudi
materials unearthed from a Qin (221-206 B.C.) site in 1975, yielded
materials previously unknown to the world of scholarship. These texts
began to be analyzed seriously in China after the end of the Cultural
Revolution, a time when the importance of bolstering legal institutions
to temper the human factor in government became a concern that
extended far beyond the world of scholarship. These new materials
have been discussed in many contexts, but generally scholars agree
that the Shuihudi materials on bamboo, which date from about 217
B.C., represent the laws of China's first unified state. The cache does
not include the complete Qin statutes but rather pro forma documents
and sample questions and answers to guide local officials charged with
investigating and reporting crimes to their bureaucratic superiors. The
great attention shown in these materials for conducting careful
investigations of crimes and applying correct punishments demonstrates

I According to Roberto Unger, transcendent religion is necessary for generality and
uniformity in a legal system and is one major requirement of the Rule of Law that China
lacked. See UNGER, supra note 11, at 80. John Finnis notes that modem legal thinkers %,ho
repudiate the concept of natural law cannot separate their conception of law from some
.practical viewpoint as the standard of relevance and significance in the construction of his
descriptive analysis." FINNIS, supra note 17, at 18.

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JOURNAL OF CHINESE LAW

that the Qin central government had developed a highly complex and
centralized legal system that aimed above all to control bureaucratic
corruption with strict guidelines.33 From what little we know, the
more recently discovered legal materials in a Han dynasty tomb in
1984 at Jiangling in Hubei Province demonstrate that the Han dynasty
continued and amplified the Qin imperial legal system.34 According
to these newly found materials, the Chinese imperial organization from
its very inception reflected a greater concern with legal procedure than
has been recognized in the standard view of traditional Chinese law.

Classical Chinese legal theory has also become more of interest as
the theoretical reflections found in the Mawangdui tracts on law are
analyzed, because these treatises connect positive law and consistent
punishments with universal, natural standards. Indeed, the Mawangdui
materials have prompted some scholars in China to determine that the
evolution of a conception of law based on a universal standard, the
dao, marked the transition from the patrimonial society of the Spring
and Autumn (1077-771 B.C.) to the bureaucratic state of the Warring
States period, a time when, "the rule of law, fazhi, replaced rule by
rites, lizhi."35 The clear importance assigned to law as a model for
all of the activities of government, including war, punishment, and the
implementation of official laws in the Jingfa, the most theoretically
interesting of the Mawangdui texts, has also led to speculation that

" The procedural guidelines have been interpreted and translated by Robin Yates and
Katrina McLeod, Forms of Ch'in Law: An Annotated Translation of the Feng-chen Shih, 4
HARv. J. ASIATIC STUD. 111 (1981); and A. HULsEWE, REMNANTS OF CH'iN LAW: AN
ANNOTATED TRANSLATION OF THE CH'IN LEGAL AND ADMINISTRATIVE RULES OF THE 3RD
CENTURY B.C. DISCOVERED IN YUN-MENG PREFECTURE, HU-PEI PROVINCE, IN 1975 (1985)

[hereinafter HULSEWE REMNANTS OF CH'IN LAW]. Professor Hulsewe has also described the
Han laws and punishments as they are discussed in the Hanshu [History of the Han Dynasty]
in REMNANTS OF HAN LAW (1955) [hereinafter HULSEWE REMNANTS OF HAN LAW].

' On current Chinese views of the relationship between the laws of Han and Qin see
Zhang Tinghao, Jiangsu Lianyungang Shi Qutu de Handai Falu Bandu Kaoshu [Textual Analyls
of the Han Laws Unearthed in Lianyungang, Jiangsu], 3 WENBO [CULTURAL STUDIES] 29
(1984). For a Marxist assessment of the development of the Qin laws see Shang Qingfu, Q1n
Xinglu de Yuanyuan Jiqi Yanjin [The Source and Development of Qin Criminal Law], 5 LISHI
LUNCONG [HISTORICAL DISCUSSION] 15 (1985). Lian Shaoming described the Jiangling Han
materials, which have been unavailable to Western scholars, in a paper, Categories of Han
Law, presented at the Asian Studies Annual Meeting, Boston, April 1987.

" Jin Chunfeng, Lun Huang Lao Boshu de Juyao Sixiang [On the Significant Issues in the
Huang Lao Silk Manuscripts] 2 QWu SUO [EXPLORATIONS] 54 (1986). Scholars continue to
debate the authorship and dating of the anonymous books written on silk, but most agree that
they were produced between about 300 B.C. and the date of their burial in 168 B.C. in the
tomb of the Marquis of Dai, Chief Minister to the kings of Changsha. For a survey of opinions
on dating the texts and the important legal issues and history of scholarship on the silk books,
see Karen Turner, The Theory of Law in the Ching-fa, 14 EARLY CHINA 55 (1989).



192=TH RULE OF LAW IN EARLY CHINA?

certain classical Chinese thinkers linked law with transcendent ethical
standards that resemble aspects of the late classical Western notion of
natural law.36 These new materials are important because they
provide evidence to challenge the opinion that the early Chinese were
incapable of conceiving of transcendent norms as models for juridical
principles and that this particular failure blunted China's subsequent
scientific and political development. 37  The significance of the
arguments that these newly-found texts put forth to support a legal
system characterized by clear, public laws and consistent punishments
has been noted by recent Chinese scholarship.38

Many scholars have identified these Mawangdui legal texts on silk
as representative of H-uang-Lao thought, a syncretic blend of Legalist,
Daoist, Mohist and Confucian notions of statecraft that described the
dao as a universal and transcendent standard for guiding all of the
important decisions of government, from making war to implementing
punishments, collecting taxes, appointing and controlling subordinates
and creating new laws. 39 The ideas in these texts have attracted atten-
tion in contemporary China in part because they resonate with current
concerns. Scholarly work in China in the 1980s examined early legal
activity as a vehicle for justifying current laissez faire economic poli-
cies, by arguing that the Huang-Lao ideals represented in the
Mawangdui texts curbed the power of the central government in local
affairs and allowed the people to prosper.4 More generally, contem-
porary Chinese reformers and scholars who seek to bolster the
contemporary legal system are resurrecting the positive elements of
their legal tradition to criticize indirectly interference by the Commu-

" For further details on the argument that the Mav, angdui texts contain elements of a
natural law theory that resembles in some respects Stoic notions of natural law, see Turner,
supra note I at 86-111. See also R.P. Peerenboom's assertion that the law of the silk books
from Mav.angdui represent a tradition of rule of law, Natural Law in the Huang.Lao Boshu,
40 PI.. EAST & WEST 309 (1990).

" See the most important discussion of this view in JOsEPH NEEDHA.1, 2 SCIENCE AND
CIVi.ATION IN CHINA 518-83 (1956).

1' See, e.g., Rao Xinxian, Hanqu Huang Lao Xuepai Falu Sixiang Lueshuo [An Overview,
of the Legal Theory of the Huang Lao School in the Early Han], 3 FALU LUNCENO
[DIscUSSiONS ON LAW] 326 (1983).

3' The most complete and current presentation of the tradition, context, and modern com-
mentary on the Huang-Lao texts is in R.P. PEERENBOOM, LAW AND MOPALITY IN ANCEcNT
CHINA: THE SILK MANUSCRIPTS OF CMINA (forthcoming 1993). The author argues that the silk
books are Huang-Lao texts and presents a useful up-to-date survey of opinions about their
dating and attribution.

I See, e.g., Huo Cunfu and Su Jin, Huang Lao de Falu SWsiang yu P/en Jing zhi Zd [7he
Legal Thought of Huang Lao and the Government of Emperors lVen and Jing], 4 JIL DAXUE
SHEmI KEXUE XUtBAO [JiN UNwEtsrry OF SOCIAL STUDIES] 15 (1935).

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JOURNAL OF CHINESE LAW

nist Party and informal extra-legal bodies in the legal process.41 In
the past decade in China, as pragmatic and scholarly efforts have
focused on defining the role of law in a society that is economically
progressive and politically conservative, the Rule of Law has become
an even more important baseline.42 But none of these studies has
seriously attempted to define the meaning of the Rule of Law either
in Western or Chinese contemporary discourse or in its classical
formulations.

There are legitimate reasons for exercising caution when attempting
to use categories derived from the Western experience for analyzing
ancient China. First, comparative studies of Chinese legal history can
offer useful information only if similar periods of legal development
are compared. Too often, early China is judged a failure by standards
that apply only to the modern Western system. For example, if a
formal separation of powers defined by a written constitution, an
independent judiciary, and a class of legal experts is deemed essential
for a healthy legal system, then any ancient government will fall short
of the modern ideal, for as I noted earlier, these are relatively recent
developments in the West itself.4"

"' For a discussion of how contemporary reformers and scholars in China use the past
tradition of rule of law to criticize the present, see Jonathan Ocko, Using the Past to Make a
Case for the Rule of Law, Paper presented at the annual meeting of the Association of Asian
Studies, New Orleans (April 1991).

' See, e.g., Special Columns for the Discussion of Rule of Law or Rule by Man, 1980
FAXUE YANJIU [STUDIES ON LAW] Nos. 2 & 4, 40-52, 61-64 (1980). In the more popular
press, see Fazhi yu Renzhi Buneng Fenkai Ma? [Can Rule of Law and Rule of Man be
Separated?], FAZHI RIBAO [LEGAL SYSTEM DAILY], Sept. 14, 1988 and in English, The Rule
of Law, CHINA DAILY, June 29, 1985. For a discussion of the rule of law in China since the
Tiananmen massacre of June 1989, Jerome Cohen, offers an updated perspective in Tiananmen
and the Rule of Law, in THE BROKEN MIRROR (G. Hicks ed., 1990).

"' Unger identifies a "legal order" with the postfeudal, modern liberal state. Supra note
11, at 52-54. This order is characterized by a separation of politics and adjudication, and by
a separate body of legal norms, institutions, doctrines and professionals. Unger compares
ancient China with the modern European liberal state to point up the unique, Western
experience that produced a Rule of Law. Historical treatments of the early medieval tradition
offer a far more useful point of comparison with early China. For example, the conviction that
the King was bound by laws that transcended his will is one important aspect of early Medieval
European thought that competed with absolutist conceptions of kingship. As Fritz Kern has
shown, the ideal that law was sovereign emerged from the tribal notion that the King was
subject to guard the "good old laws" of the community and the Christian vision that the King
must bow before Divine Law: "To the Middle Ages, law was an end in itself, because the
term 'law' stood at one and the same time for moral sentiment, the spiritual basis of human
society, for the Good, and therefore for the axiomatic basis of the State. For the Middle Ages,
therefore, law is primary, and the State only secondary." See FRITz KERN, KINGSHIP AND LAW
IN THE MIDDLE AGES 153 (1956). The implementation of this ideal in the common law
tradition, however, is a product of the seventeenth century, when Parliament claimed the right



THE RULE OF LAW IN EARLY CINA?

Secondly, while some of the late classical Chinese sources are richly
rewarding for a study of legal theory, they must be read as expres-
sions of goals rather than actual practices. Even the Qin code from
Shuihudi reveals only what sort of performance the state expected
from its officials rather than how they actually carried out their duties
or were sanctioned for their misdemeanors. And the Han historians
may well have painted a somewhat idealistic picture of the way that
law and coercion were used by their rulers to demonstrate that the
dynasty they served had won the empire by legitimate force and that
it maintained its authority by continuing to use violence according to
the rules.

Third, problems of language and interpretation confound cross-
cultural legal studies." My interpretations challenge the pervasive
notion that law in China referred only to the coercive force of the
state, as Liang Zhiping and others have argued.4" There are good
reasons for interpretive differences in this matter. The problem of
deciding whether the Chinese character fa should be rendered as "law"
or "standard" or "punishment" poses a problem for sinologists, 46 not
only because law in contemporary China seems so closely linked with
coercion that the present is inevitably read into the past, but because
descriptions of law in the classical Chinese texts themselves are
fraught with ambiguity. Yet, if the late classical Chinese writings are
taken on their own terms, fa, which I have chosen to translate in this
article in all cases as "law," can be seen to embody a range of
meanings similar to the notion of law in the contemporary West; fa
refers to laws backed by coercion as well as to laws linked with moral
standards; to positive laws issued by the state and to the more specific
rules for special skills, such as military strategy. A.P. d'Entreves'

to protect its subjects from the improper demands of the King. At this time, under the influence
of Sir Edward Coke, the medieval conception of the supremacy of law %%,was applied to the
modern state. See SANDOZ, supra note 21, at 235.

' The notion of law and its relation to rights, coercion and justice continue to shift in the
Western tradition, therefore compounding interpretive problems. See discussions in NEmr.wA,
supra note 21. A very clear assessment of the nature of the Rule of Law and its implications
for rights can be found in FwnS, supra note 17. For critiques of Finnis see Ruth Gavison,
Natural Law, Positivism, and the Lints of Jurisprudence: A Modern Round, 91 YALE L.i.
1250 (1982); Tim Kaye, Natural Law Theory and Legal Positivism: Two Sides of the Saie
Practical Coin? 14 J. LAw & Soc. 303 (1987).

4s See supra note 8.
A provocative critique of interpretations offa as either model or law, depending on the

modern scholar's perception of the philosophical orientation of individual classical thinkers was
presented by C. Hansen, Fa: Laws or Standards, New England Association for Asian Studies
Meeting, Middletown CT (Oct. 1988).

1992]



JOURNAL OF CHINESE LAW

definition of law in the West carries a range of meanings that could
be applied to late classical Chinese notions of law: "Law is a
standard, a model, a pattern from which the quality of a particular
action, the relevance of certain situations and facts may be inferred.
The primary function of law is not to command but to qualify; it is
a logical as well as a practical proposition."47 But this is only one
definition, and the arguments about the meaning and function of law
that appear in twentieth century Western legal theory demonstrate that
the problem of describing a relation between law and morality,
between law and coercion and between rules and discretion has not
been resolved in the West.48 Indeed, this ambiguity was present in
Max Weber's influential writings on law, for Weber viewed law as
both power and authority, as both coercion and the "structured source
of guidelines for right conduct."49

Finally, the contemporary postmodernist rejection of totalistic grand
theories that focus exclusively on external models that obscure cultural
differences calls into question the validity of any comparative
project." This current concern with multiple perspectives can be
valuable, however, because it points up how in the Chinese case, the
Confucian view of law has become a powerful and all-embracing
grand theory. The Confucian model, which celebrates the moral man
over the law, ritual over legal systems, and the familial over the
impersonal model of society, has so deeply influenced our understand-
ing of law in China that attempts to escape Western paradigms at
times fall back on the Confucian grand theory.5 And I think that the
Confucian view has obscured the importance of other discussions about
government in early China that looked toward formal laws and models
derived from abstract standards as ways mitigate the influence of
particularized, kin-based conceptions of the state. Such concerns with

47 A.P. D'ENTREVES, NATURAL LAW: AN INTRODUCTION TO LEGAL PHILOSOPHY 78
(1951).

"' For an assessment of the development and influence of Max Weber's conception of law,
which included both normative and coercive elements, see David M. Trubek, Max Weber and
the Rise of Capitalism, 3 Wis. L. REV. 720 (1972).

49 Id. at 726.
'o For a very useful analysis and critique of postmodernist theory, see STEVEN BEST &

DOUGLAS KELLNER, POSTMODERN THEORY: CRITICAL INTERROGATIONS (1991).
" William Alford, On the Limits of "Grand Theory" in Comparative Law, 61 WASH. L.

REV. 946-56 (1986), calls for caution when evaluating the character of the Chinese legal system
and correctly points up the need to be aware of the dangers of using grand theory in
comparative work. But in his own attempt to escape Western-centered definitions of the
traditional Chinese legal system, the author places undue emphasis on the Confucian model of
fiduciary relationships between ruler and ruled that mirror the ideals of kinship ties.



THE RULE OF LAW IN EARLY CHINA?

positive law and impersonal rules have generally been viewed as
limited to the Warring States Legalists. But as the new texts on law
found in the past two decades in China demonstrate, this view was not
limited to the early Legalist thinkers, for a commonly recognized fund
of principles did exist, about the need for clear laws, consistent
punishments, official accountability, fixed practices for making and
changing the laws, and for formulating strict procedures for investigat-
ing and deciding proper sentences for behavior defined as criminal.
Most importantly, the ultimate aim of the Rule of Law, the subordina-
tion of rulers to the laws, was discussed in early China. In fact when
some of these early Chinese deliberations on the nature of the state
and the problem of balancing law and discretion are compared with
similar debates in the Western classical tradition, we find that Chinese
thinkers in some cases seem to have been even more aware than their
Greek and Roman counterparts of the implications of unbridled human
intervention in government.

II. FoRmAL LAWS AND HUMAN JUDGMENT

The Rule of Law demands above all that human judgment and will
remain subordinate to formal laws. In the West, this basic principle
is considered an integral part of our classical heritage. Therefore,
when searching for the most fundamental theoretical assumptions that
have encouraged the fully developed institutional Rule of Law, in the
modern West, legal theorists almost inevitably refer back to Aristotle's
(384-322 B.C.) famous declaration in the Politics: "The rule of law
... is preferable to that of any individual. On the same principle,
even if it be better for certain individuals to govern, they should be
made only guardians and ministers of the law." 2 Similar statements
about the superiority of law over individual rulers can be found in late
classical Chinese writings.

Important though his legacy may be in the Western tradition of the
Rule of Law, Aristotle by no means offered a philosophy of law that
was inclusive and universalistic. His political theory represented a re-
sponse to cynics who viewed law and government as merely conven-

-5 AmSTOTLE, PoLmncs 3.16. Discussions of Aristotle's legacy are too numerous to cite
here, but for comparative purposes especially interesting are A. P. D'ENTrJEVEs, supra note
47; C. MoRRms, THE GREAT LEGAL PHILOSOPHERS: SELEcrED READINGs IN JUPWSPRUDENcE
(1959). In a preface justifying his selections, Morris wites: "One Greek seemed to be about
all I could afford, and the choice seemed clearly to be Aristotle-the most influential, the most
representative."

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JOURNAL OF CHINESE LAW

tional constructs unrelated to ethical concerns.53 And some of his
most eloquent writings describe conflicts in obligation that arose when
the enacted laws of the state stood at odds with customs so revered
that they seemed natural. Antigone's famous refusal to obey her king's
orders because they contradicted higher, more authoritative laws, was
used by Aristotle to illustrate the deep hold of laws so timeless that
they were experienced as both natural and sacred: "Not of today or
yesterday they are, but live eternal. None can date their birth."54 As
Margaret Nussbaum has written, Aristotle's concern for law as a
guardian of institutional stability emerged not only from his view of
politics but from his assessment of the fragility of human nature,
because Aristotle, in stark contrast with Plato (ca. 428-348 B.C.),
"wants to investigate and in some way to preserve as true the idea
that luck is a serious influence on the good life, that the good life is
vulnerable and can be disrupted by catastrophe."55 Aristotle viewed
the laws of the past as one guide for the present and the ideal king
as one who maintained tradition as a framework for politics. His
conception of a government of laws was based on the notion that law
must be linked with normative values, that the ruler must serve as the
guardian of the laws, that the laws must restrain the magistrates and
that law was but one mechanism to support a state whose primary
mission was to encourage the moral development of the very narrow
group of persons that were believed capable of participating in
politics. It was not with positive law or with specific institutions alone
that Aristotle was concerned in his discussion of the role of law, but
with finding a reliable beacon for reaching fair decisions in a changing
world, an environment in which human wisdom all too often could not
be trusted. Law was a necessary mechanism to guide and check the
power of the magistrates, because law fixed boundaries, defined
privileges and duties and encouraged good habits. And above all, law
was one means to curb tyranny, which Aristotle defined as, "the
arbitrary power of an individual which is responsible to no one, and
governs all alike, whether equals or betters, with a view to its own
advantage, not to that of its subjects, and therefore against their
will. "56

"' For a clear discussion of the milieu in which Plato and Aristotle wrote, see L.
WEiNREB, NATURAL LAW AND JUSTICE 20-35 (1987).

-' RHEromic 1.15.
"' MARGARET NUSSBAUM, THE FRAGILITY OF GOODNESS: LUCK AND ETHICS IN GREEK

TRAGEDY AND PHILOSOPHY 322 (1986).
s6 POLITICS 4.10



19 E RULE OF LAW IN EARLY CHINA?

Like Aristotle, late classical Chinese thinkers were concerned with
a new and fundamental problem, that of defining a place for formal
laws in a society that did not fully accept their legitimacy. It is
interesting for the early China specialist to note that Drako's laws on
homicide were greeted as a harsh imposition on private rights in
seventh century Greece57 just as the public laws advocated by Shang
Yang (d. 338 B.C.) were - according to the textual tradition - gr-
eeted with suspicion in fourth century China. Shang Yang's debate at
the court of King Xiao of Qin in 359 B.C. reflects just how danger-
ous the act of reforming the old laws to create a public domain that
separated law from tradition seemed at the time in China. Shang
Yang's argument that the laws must be reformed to suit the times so
that they could benefit the state finally prevailed despite his opponent's
strong arguments that the laws should not be changed and the ruler's
obvious fear that he would be criticized for changing them.5" In both
classical traditions, then, the process of legitimating official law
generated controversy.

In very general terms, it was the Chinese Confucians who would
have agreed with Aristotle that the state existed to provide a moral
environment and who celebrated the laws of the former kings as a
reliable guide for the present. The Legalists, on the other hand, valued
law as a means to secure institutional continuity and to control the
bureaucrats in the interest of preserving the resources of the state. The
cynicism of the two major Legalist writers in classical China, Hanfeizi
(ca. 280-233 B.C.) and Shang Yang, about the essential weakness of
humans was based not on a philosophical awareness of the essential
fragility of human goodness but more on the assumption that scarce
resources generated competition. They based their legal and political
theory on the premise that human behavior could be manipulated by
a careful disposition of rewards and punishments established in a
strict, clear, and public legal code.59 As well, they were concerned
with protecting the state from incompetent or misguided rulers. Thus,
Shang Yang argued in an Aristotelian vein that only through laws
could the personal passions of rulers and magistrates be tempered and
institutional continuity guaranteed: "Sages cannot transfer to others the

57 DouGLAs MACDOWELL, THE LAW IN CLASSICAL ATHENS 41-43 (1978).
s See SHANGuNsHu 1.la-2b for this debate. I have used the SHANcUNsnU JtEcUhu ed.

(Chengdu, 1935). See THE BOOK OF LORD SnANG (J. Duyvendak trans., 1928) [hereinafter
Duyvendak].

5' For a useful overview of Legalist theory, see BEJAff.NlI SClWARTZ, THE WORLD OF
THOUGHT N ANCIENT CHINA 321-43 (1985).

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JOURNAL OF CIf7NESE LAW

personality and nature that is inherent in them; only through law can
this be accomplished." 6" More strongly than Aristotle - who
admitted in his later writings that a sage king might be able to govern
without the guidance of law - the Chinese Legalists seem more
doubtful about the ability of any individual ruler to govern effectively
without laws. Shang Yang separated the interests of the state from the
interests of its rulers and declared that the state would remain viable
and strong and the people obedient only if the ruler heeded the law
in his activities: "Therefore the enlightened ruler is careful about the
the laws and regulations. He does not heed words that are not
centered in law; he does not exalt actions that are not centered in law,
and he does not carry out state activities that are not centered in
law."'" On the important issue of the origins of law, Shang Yang
implies that the ruler should act as a lawmaker.62 But Shang Yang
never justifies outright the ruler's right to break the laws that he
made. One can guess that this concern that the ruler abide by
established law stemmed not so much from Shang Yang's desire to
protect the rights of individual subjects or to enhance the welfare of
the community, but to preserve the state from the weaknesses and
ambitions of rulers.

The Legalist thinkers viewed the state not as a community rooted
in tradition, but as an artificial construct that could survive only if
freed from tradition. A comparison of Plato's early writing on law
with the political theory of the Chinese Legalists reveals that Plato
was equally wary of the blinding power of tradition and equally
concerned with preserving order. Justice, for Plato, was assured
only when all humans filled their appointed roles in the state and
when a common acceptance of the rightness of this hierarchical order
became a principle of governing. All citizens had defined roles - and
it was the job of the philosopher king to act with wisdom and

60 SHANGJ'UNSHu 4.9a. See Duyvendak, supra note 58, at 274.
61 SHANGJUNSHU 5.7b. See Duyvendak, supra note 58, at 317.

For example, Shang Yang discussed the principles that a ruler should follow when
making the law and the relationship between the ruler and the ministers who implement the
law. The law should be clear so that subordinates could understand it, according to Shang
Yang, but the ruler should personally oversee and institute the law. SHANGJUNSHU 5.1 la-b.
Duyvendak, supra note 58, at 327.

6 For a discussion of Plato's view of tradition as a barrier to reform, see ERNST
CASSIRER, THE MYTH OF THE STATE 72-73 (1946). For views of the Legalist's legacy, see
Liang Zhiping, supra note 8, at 4. For a survey of opinions about the legacy of Shang Yang,
see LI YUNING, SHANG YANG's REFORMS AND STATE CONTROL IN CHINA (1977). Similar
opinions about Plato's theoretical contribution to the totalitarian state can be found in KARL
POPPER, THE OPEN SOCIETY AND rrs ENEMIEs (1962).



77tE RULE OF LAW IN EARLY CHINA?

moderation."' Similarly, the Chinese Legalists viewed law as one
means to maintain boundaries that would ensure that the best men
were appointed for office. But for them merit based on experience,
loyalty and technical expertise rather than on moral training or
charisma became the criterion for filling government appointments. On
the question of the ultimate function of law, however, Plato would
have disagreed with the Legalists, for he saw law as a hindrance to
the free play of the ruler's abilities, which could best be used to
adjust laws to new circumstances if they were not restrained by
conventional standards: "Law does not perfectly comprehend what is
noblest and most just for all and therefore cannot enforce what is
best." 65 Plato, like Aristotle, however, recognized that ideals and
realities would always remain in tension in any government, and that
tyranny always constituted a threat to order. In his later writing, he
spelled out how laws could distinguish good and evil governments and
curb despotism.66

One of the most eloquent statements about the problem of balancing
law and discretion in any tradition comes from Xunzi (b. 310 B.C.),
who took the Confucian stance that education and exemplary rulership
offered the most effective means to govern, but who also produced a
theory for applying institutional violence that moved beyond earlier
Confucian thought. Xunzi's contribution to legal theory deserves
particular recognition, because he discussed the importance of
articulating an ethic of war and punishment and finding a means to
achieve a workable balance between moral men and strict laws. First
of all, Xunzi acknowledged that the state both imposed great burdens
and presented tangible benefits for society. But the state could survive
only if it balanced human wisdom with institutional stability:

Laws cannot stand alone. . for when they are implemented by
the right person they survive but if neglected they disappear. . ..
Law is the basis of good government but the superior man is the
basis of law. So when there is a superior man, the law even if
sparse will cover any situation, but when there is no superior

See ERNsT BARKER, GREmE POLImCAL THEORY 204 (1960).
1' STATESMAN para. 254.
6 See LAWS IV and VI.

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JOURNAL OF CHINESE LAW

man, even if the laws are all-embracing, they will neither apply
to all situations nor be flexible enough to respond to change.67

Xunzi was a realist who understood that institutions could never
operate without human guidance and in common with other early
Confucian thinkers, he leaned toward the exemplary ruler and morally
educated magistrates as the linchpin of a just government; but he
placed greater emphasis on the need for a legal system to frame their
decisions.

Once the empire was established, the dilemma of balancing personal
intervention with formal laws continued. The later Han historian, Ban
Gu (A.D. 32-92), surveyed in his "Treatise on Punishments" in the
Hanshu the efforts of early Han rulers to temper the harsh laws. Here
Ban Gu relates the story of Han Xuandi (r. 74-49 B.C.), who
attempted to inject equity into the system by establishing four high-
level officials charged with bringing doubtful decisions to the
emperor's attention before the autumn assizes, the time of executions.
But the Emperor's decision was criticized by a local official known
for his attention to strictness in applying the laws. He argued that it
was far better to cleanse the statutes of ambiguity than to appoint new
officials, because once the laws were made clear they could not be
manipulated.6" In other cases, Ban Gu illustrated the point that even
the best of rulers and ministers could not reform the laws in just one
generation; imperial interference merely offered temporary relief from
injustice."9 In this instance, Ban Gu seems to regard a code that
correctly categorized crimes and punishments as at least as important
as the presence of exceptionally wise and benign rulers. Ironically, the
early Confucians had castigated rulers for recording laws because the
people would manipulate them; but later Confucians like Ban Gu
advocated written law as an important means of guarding against
official corruption. This idea that law and good rulers must operate in
tandem is expressed in strong terms in the Huainanzi, an eclectic text
completed around 139 B.C. This text places great importance on the
art of rulership, but it also recognizes the vital necessity of law: "A

67 XUNZI (SBBY ed.) 8.1. For a useful new translation of this text, see XUNZI: A
TRANSLATION AND STUDY OF THE COMPLETE WORKS: VOL. 1, BOOKS 1-6 (John Knoblock
trans., 1988) and XUNZI: A TRANSLATION AND STUDY OF THE COMPLETE WORKS: VOL. 2,

BOOKS 7-16. (John Knoblock trans., 1990.)
6s HANsi-u (1962) 23.1102.
69 Id. at 23.1103.



THE RULE OF LAW IN EARLY CHINA?

state on the brink of disaster is not one without a ruler but one
without laws." 7"

The authority of law is further demonstrated in Han writings by
accounts that show some reformers chafing against the restrictions of
the old laws. One of the most famous critics was Du Zhou (d. 95
B.C.), one of Han Wudi's (r. 141-87 B.C.) harshest Commandants of
Justice (tin gweO. To a charge that he ignored the written laws to cater
to the ruler, he asked where the written laws originated in the first
place and then argued: "Whatever earlier rulers considered right was
recorded as statutes and what later rulers said was right was added on
as ordinances. If what is right is decided by timeliness, of what use
are the old laws?"7" Du Zhou was castigated by his contemporaries
for disregarding the old laws, which implies that his willingness to
manipulate the law did not meet with universal approval and that his
cynicism about the laws of the past was not wholly shared. Moreover,
this passage indicates that it was the power of the old laws that
troubled him most - for they hindered men like him from manipulat-
ing the legal system with impunity. It seems, then, that by the first
century of the Han dynasty, the issue was not whether laws should
exist in government, but how to maintain clarity and consistency in
the codes so that laws could protect the state from the vagaries of rule
by personality.

Despite their strong arguments for a legitimate function for law in
government in these eclectic texts, however, one of the most important
contributions of classical Chinese political theory to comparative legal
thought was its deep skepticism about the corrective function of law.
Even those Chinese philosophers who argued in favor of law never
declared that formal rules alone could create order. The Legalists
recognized that laws could be easily employed for personal gain and
the Confucianists contended that rites, customs, and the rules of
groups subordinate to the state prevented deviance far more efficiently
than laws that merely punished those who had already committed
crimes. These early Chinese thinkers rarely fell into what would be
called "legal formalism" in contemporary social science theory.'

71 HuAiNAIXz (SBBY ed.) 9.14. For a discussion of this important chapter on rulership,
see ROGER AMES, THE ART OF RULERSHIP: A STUDY IN ANCIENT CHINESE PoLrIcAL

THOUGFT (1983); for a new history of this text, see HAROLD ROTH, THE TExrUAL HlSTOR Y
OF THE HuAI-NAN-Tzu, The Association for Asian Studies Monograph Series, No. 46
(forthcoming Ann Arbor, University of Michigan Press).

71 S-m (1959 ed.) 106.2825.
1 See a discussion of the limits of formalism in PIERRE BOURDIEUt, OUTLINE OF A

THEORY OF PRAcrICE (1977).

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JOURNAL OF CHINESE L4W

They acknowledged early on that the official legal system was but one
mechanism for achieving stability and that various groups in society
would naturally develop different strategies for using or abusing it.
Perhaps this very understanding stimulated the production of a legal
philosophy that took so realistic an account of the dangers posed by
human intervention in legal decisions.

III. GENERAL LAWS AND UNIVERSAL STANDARDS

A major requirement of the Rule of Law, that laws be conceived as
universal in scope and application, existed at least by Hanfeizi's time.
In his writings, fa carried a broad meaning, distinguished from
statutes, lu, orders, ming, and punishments, xing: "Law includes the
written ordinances displayed in official offices, the corporal punish-
ments that the people accept as inevitable, the material rewards due
to the lawful ones, and the punishments imposed on those who pervert
the ordinances. It is what the officials and people take as their
guide."73 In Han Fei's scheme, law was public, written, universal
and a model for rewards and punishments. His conception of a general
and universal law was linked in part with a rejection of the models of
the past. Hanfeizi pointed out that only after the Book of Poetry and
the Book of History, the most revered sources for ancient models of
rulership, were destroyed were the laws and ordinances of Qin made
clear under Shang Yang's guidance.74 Other writers pointed out good
reasons for finding new models for laws. The old laws simply
presented linguistic and interpretive problems, according to the third
century text, Lushi Chunqiu: "Why is it that even those on high do
not follow the laws of the former kings? It is not that these [laws] are
not worthy but rather that they have no way to follow them.
[Moreover], since the laws of the former kings have their origins in
antiquity, people have sometimes augmented and sometimes abridged
them." 75 Once the tradition was viewed as vague and restrictive, a
different and more abstract principle for guiding government had to
be found.

After about 300 B.C. in China for some thinkers this ultimate
principle became the dao, which is most often simply translated as the
"Way." In a wide variety of texts, dao was called upon as a metaphor
for political life, a useful model for ruling because it was at once uni-

7' HANFEIZI JISHI (Shanghai 1958 ed.) 17.906.
74 HANFEIZI JISHI 4.239.
7 LusHi CHUNQrU (SBBY ed.) 15.17b.



T9E RULE OF LAW IN EARLY CINA?

fled and the source of all things. The Jingfa presents one of the most
systematic arguments for the dao as a practical guide to the art of
ruling. As the text has been reconstructed, the anonymous author
opens with this statement: "The dao gives birth to the law and law is
what marks success and failure. Used as a marking line, it clarifies
what is crooked from what is straight."76 The treatise then describes
the dao as a timeless, universal, impartial standard and the law that
it generates as a reliable guide for the hard decisions that fall to any
ruler: when to begin a military campaign and when to wait until
conditions are suitable, when to punish the people and when to show
lenience, how to obtain clear, trustworthy information from subordi-
nates, and how to organize officers according to their abilities. The
ruler who conquered a territory and attempted to establish a legitimate
government was clearly one target for this author, who advised him
to abide by the established laws, and to issue commands for labor and
military service only after gaining the people's trust and learning of
their customs and habits.77 A great portion of the Jingfa focuses on
the need to create a public realm that distinguishes just war from
useless slaughter and appropriate punishments from personal ven-
geance. Only by following laws founded in the dao could he
understand the boundaries between just and unjust actions: "Laws and
regulations are of the utmost importance in governing. There is no
confusion in the government of a [ruler] who relies on them and no
disorder once the laws and regulations are produced. If you are
public-spirited and without private bias, and your rewards and
punishments are trusted, you will have a good government." T Law
rather than human emotions must guide the ruler, and the text warned
the ruler who made arbitrary decisions to punish and to make war that
he would himself be destroyed by violence.

The Jingfa's vision of a standard that could mediate between
conflicting views of the past and competing local customs was not the
product of an eccentric local visionary, for other late Warring States
and early Han texts present dao as a useful model. The Guanzi
explicitly links the dao with the legal system:

' From Daofa, the first section of the JINGiFA, included in MAWANODUI HANU BOSHU
(1980). References are to the nine short section tides. A translated and analysis of the political
theory in the JINGFA is found in Karen Turner-Gottschang, Chinese Despotism Reconsidered:
Monarchy and its Critics in the Ch'in and Early Han Empires (1983) (Ph.D. dissertation,
University of Michigan).

This discussion is in the Chunzheng section of JINOFA.
"In Daofa. A very similar statement can be found in GUANZi 6.Ia.

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Therefore it is said that statutes, regulations and measures must
be modeled on the dao. Commands and ordinances must be clear
and open, rewards and punishments trusted and definite. These
are the constant standards for bringing justice to the people ...
When an enlightened ruler is on the throne, laws modeled on dao
are implemented throughout the realm and the people will give up
what they like and do what would [ordinarily] be abhorrent to
them.

79

This concept of dao, a standard of nature that served as a basis for
law was not represented as a law-giving deity, but as a model for
ruling and law-making."0 And I think that dao was valued as a
normative principle precisely because it represented a mechanistic
principle of nature free of the fickle personality traits of an anthropo-
morphic deity. The dao could not be influenced, manipulated,
changed, or disturbed in its regular patterns and therefore it could
serve as a metaphor for a model ruler who would oversee the world
with clarity and wisdom while remaining above its vicissitudes and
temptations. Such a ruler would naturally govern with predictability
and justice. As R.P. Peerenboom has argued, the Huang-Lao philoso-
phy of law presentedy a theoretical constraint on the ruler, who was
bound to adhere to a pre-determined moral order that provided a
standard "to curtail the discretionary latitude of and potential for abuse
of power by sage judges in Confucius' legal system."'" The dao
represented a unified standard, a "rule-governed natural order" that
served as a model for the social and political order.8 2 Thus the laws
that emanated from dao could apply to all peoples, regardless of their
customs and traditions.

Although the Han historians relate how certain rulers and officials
in the early Han period subscribed to Huang-Lao thought, we cannot
trace a direct link between the Mawangdui texts and particular
policies.8 3 But it is obvious why the thinking in these texts could

79 GuANzi 6.4b-5a.

80 See LEO CHANG AND HSIAO PO-WANG, THE PHILOSOPHICAL FOUNDATIONS OF HAN

FEVS POLITICAL THEORY, Monographs of the Society for Asian and Comparative Philosophy,

no. 7 (University of Hawaii Press, 1986), for an analysis of Han Fei's concept of dao and why
it is not comparable with Western notions of logos.

81 See PEERENBOOM, supra note 39, at 245.
12 Id. at 250.
"' See my discussion of the link between theory and practice, Turner, supra note 35, at

74-76. 1 argue that while some aspects of the philosophy in the Mawangdui texts must have
been attractive to Han rulers, it is difficult to understand why they would have supported an



THE RULE OF LAW IN EARLY CINA?

serve a ruler who strove not only to create a unified empire, but who
also understood the need to establish a government that would be
viewed as legitimate by the people he conquered. Such a principle
would have been useful in the early imperial period in China, a time
when centralization at all levels of government was desired by rulers
and bureaucrats whose status derived from government service rather
than ascriptive ties. Therefore, as the state expanded, it became
necessary to formulate an inclusive notion of law. A similar historical
process and intellectual response was at work in the late classical
West. Most modern writers agree that a political theory that placed all
humankind within the same moral and legal universe was articulated
in Greece only after Alexander's empire brought the Greeks into direct
contact with the cultures of the East. It is generally agreed that it was
the thinkers of the Stoic school who refined a theory in which natural
law became a source for enacted law, a law that extended to all
humankind and that rejected the parochialism of the earlier Greek
thinkers.8 4 Perhaps the most important tenet of the natural law of the
Stoics was that all humans are equal before it, allied by a bond that
could not be severed by artificially created institutions or misfortune.
In his study of the political theory of the Middle Ages, Charles
McIlwain writes: "The Stoic doctrine of the brotherhood of man and
the citizenship of the world was not ill-suited to a state that seemed
destined to bring all races within its political control."85 The state-
ment of the most famous spokesman for natural law theories, Cicero
(106-43 B.C.), agrees most closely with notions of law and nature in
some of the eclectic Chinese texts. Natural law, according to Cicero
is a "true law . . . of universal application, unchanging and everlast-
ing; it summons to duty by its commands, and averts from wrong-
doing by its prohibitions. . . . It is a sin to try to alter this law...
or to abolish it." 6 This description mirrors the Jingfa's notion of
law as a universal, transcendent, and unchanging standard for human
decisions.

ideology that so clearly restrained the individual authority of rulers. Peerenboom takes a more
positive stance on the actual influence of the theory in the silk books, supra note 40, at 345-
50.

" See CHARLEs RoBInsoN, HELLAS: A SHORT HISTORY OF ANcuENT GREECE (1948).
15 CHARLEs Mc.LwAwI, THE GROWTH OF PoLrrICAL THOUGHT IN THE WEST: FROM THE

GREEKS TO THE END OF THE MDDLE AGEs 106 (1932).
5 THE RE'uBuc 3.22.

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JOURNAL OF CHINESE LAW

In China as in the West, natural law rarely had any actual force to
curb the ambitions of rulers.8 7 But the development of a moral link
between enacted law and transcendent principles indicates an important
conceptual leap in any society. Roscoe Pound's assessment of the role
of natural law theory in the West could apply in many aspects to the
Chinese case:

The theory of natural law was worked out as a means of growth,
as a means of making a law of the world on the basis of the old
strict law of the Roman city. But it was worked out also as a
means of directing and organizing the growth of law so as to
maintain the general security. It was the task of the jurists to
build and shape the law on the basis of the old local materials so
as to make it an instrument for satisfying the wants of the whole
world while at the same time insuring uniformity and predictabili-
ty. The technique was one of legal reason; but it was legal reason
identified with natural reason and worked out and applied under
the influence of the philosophical ideal. 8

But in the Chinese texts that describe links between law and nature,
the dao was not put forth as a means by which all humans could
assess the legitimacy of law. Rather, the Chinese celebrated the
intuitive capacity of the sage ruler to follow the law of nature as a
model for directing the world on behalf of all humans.

IV. CLEAR LAWS, CONSISTENT PUNISHMENTS AND ACCOUNTABLE

OFFICIALS

As they worked out a philosophy of law in the period of the
development of centralized states, third and second century Chinese
thinkers articulated some of the fundamental premises of the Rule of
Law: that the ruler must abide by laws; that laws are more general
and universal than commands, and that law should be measured
against transcendent norms. Moreover, these authors discussed the
utility of clear, publicly announced laws that were based not on the

97 ALAN WATSON, THE MAKING OF THE CML LAW (1981) traces the ways that the
natural law theories preserved in Roman law, particularly Justinian's Corpus Juris Civilis,
influenced Western jurists' interpretations of civil law. In China, there is no single text that
serves as a manual for the application of natural law, although one might argue that the
Confucian classics began to play such a role by the end of the Han dynasty.

"Roscoe POUND, AN INTRODUCTION TO THE PHILOSOPHY OF LAW 10-11 (1954).



THE RULE OF LAW IN EARLY CHINA?

past but on natural principles that could remain immune from human
history and will. Thus, clear laws that guaranteed predictable and
consistent punishments, important features of the Rule of Law in the
early West, were deemed significant in China as well. Shang Yang,
for example, declared that positive laws could be constructed clearly
and applied universally, unlike customary laws, which had grown out
of more particular experiences. Just as he believed that truly talented
rulers were scarce indeed, so too he held that most of the people had
only a limited understanding of the actual mechanics of government
and could be reached only if the laws were clear, simple, and unambi-
guous: "Laws should not be made so that only the intelligent ones can
understand them. . . . Therefore when the sages created laws, they
made them clear and easy to understand." 89 Other authors offer
similarly pragmatic reasons for clear laws. The Guanzi connected clear
laws with the dao and stated that clear laws and trusted punishments
would encourage the people to "give up what they like and do what
would [ordinarily] be abhorrent to them."" Presumably the text
implies here that the people would willingly perform such duties as
paying taxes, providing labor services, and serving in the armies if
they understood the laws and trusted the penal system. Hanfeizi
considered clear, public laws so absolutely essential for order that he
warned the ruler that neglecting to clarify the laws would seriously
weaken his position.9" He compared the laws to a mirror that would
reflect reality properly only when they remained clear. If like an
immobile reflection in a mirror, the laws remained clear, the people
could see for themselves how to obey them. If the laws were muddied
with contradictions, they would lose their guiding function. In his
opinion, knowledge of the laws should neither be the exclusive domain
of the legal officials nor the special province of the scholars.' In a
wide range of texts, the argument is made that laws must be clear
because only then would the ruler and his officials possess the means

SHANCJUNSHU 5.14a; Duyvendak, supra note 58, at 334.
GUAIz 6.4b-5s; see A. RICKMrT, KuAN-Tzu 256-57 (1965).

SHANFE JisM 19.309. Hanfeizi's writings are translated in the two volumes titled THE
COmPLEtE WORKS OF HAN Fra Tzu: A CLASSIC OF CmNESE LEGALSM (W. Liao trans.,
1939). ERIC HAVELOCK, THE GREEK CONcEPr OF JUsTICE (1978), analyzes how metaphors
of vision became important as written documents began to replace the oral tradition in Greece.
In China, finding a means to produce clear laws seems to have been a preoccupation in the
period that witnessed the emergence of codified public laws.

92 HANFEIZI Jism 19.309.

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JOURNAL OF CHINESE LAW

to carry out the critical business of ensuring that correct and appropri-
ate punishments be applied to crimes.93

Rule of Law theorists consider predictability an important product
of the Rule of Law.94 In the Chinese texts I use here, predictability
depended on law. "When laws are established, punishments will be
consistent," Han Fei declared.9" The law creates a constant standard
that encourages the people to behave well, according to Shang Yang,
but laws must be consistently clear and commands consistently carried
Out. 9 6 Most importantly the force of the state must be used carefully.
The Jingfa offered the ruler a particularly compelling reason to take
care in issuing punishments: "Inappropriate punishment will bring ca-
lamity upon the ruler himself." 97 In the cosmological scheme in
which these writers formulated their political theory, the ruler and his
ministers bore ultimate responsibility for maintaining harmony between
the natural and human worlds by assigning punishments that would
cancel out the destabilizing influence of deviance. 98 Consistent
punishments had a more immediate purpose as well. By the first
century of the Han dynasty, the problem of maintaining a system that
matched crimes with appropriate punishments was a matter of great
concern. The Han emperor Wen (r. 180-157 B.C.), for example,
embroiled in a dispute with officials who challenged his proposal to
render more lenient the system of collective responsibility for crime,
stated his philosophy of law: "When laws are just and punishments
appropriate, the people will follow them." 99 Ban Gu's survey of legal
reform in the Han demonstrates the great attention that Han rulers and
ministers paid to clarifying the codes so that crimes and punishments
would match. He cited Xunzi's statement as the theoretical basis for
this activity: "There is no greater misfortune than when punishments
do not match crimes."' 0 Therefore, legal reforms, including clarifi-

9' See GuANZI 55.3a; HANFEIZI JisHi 19.309, 16.5a-b; JINGFA, Lun section.
9' See FINNIs, supra note 17, at 272.
9' HANFEIZI JIsm 9.549.
' For a discussion of this theme, see SHANGJUNSHU, ch. 5. See Duyvendak, supra note

58, at 314-35.
97 JINGFA, Gouci section.
8 MARK LEwIs, SANcTONED VIOLENCE IN EARLY CHINA 137-38 (1990) discusses

violence and correlative thinking in early China.
99 SHi 10.418-19.
"0 HANSHU 23.1111; see Hulsewe's translation in REMNANTS OF HAN LAW, supra note

33, at 347. For translations of selected HANSHU chapters, see also, THE HISTORY OF THE
FORMER HAN DYNASTY BY PAN Ku (Homer Dubs trans., 1938-55); COURTIER AND
COMMONER IN ANCIENT CHINA: SELECTIONS FROM THE HISTORY OF THE FORMER HAN BY

PAN KU (Burton Watson trans., 1974).



THE RULE OF LAW IN EARLY CHINA?

cation of the laws regarding the death penalty, simplification of the
codes to prevent official abuse of laws, and changes in the harshest
corporal punishments, were usually stimulated by the need carefully
to match crimes and punishments. The Han philosopher and reformer,
Jia Yi (201-169 B.C.), for example, warned the ruler who used his
power to punish to serve his personal grudges that he would in turn
become the object of vengeance. He goes on to state: "If the
punishment is appropriate for the crime, you can punish many people
without being at fault. If the punishment is not right and you kill one
person [wrongly], your crime will be reported to highest Heaven."101

Other writers describe how Heaven's displeasure would be manifested
concretely - through mutations in the natural world: "Oppressive laws
and ordinances stimulate plagues of insects and furthermore if the
innocent are put to death, the countryside will dry up in drought."" z

Han writers in general made good use of the Qin dynasty to bolster
their argument for consistent laws and fair punishments. Some pointed
out that it was not Qin's legal system in itself that aroused the hatred
of the people but its inconsistent use of punishments. For example, the
Han official Chao Cuo (d. 154 B.C.) castigated the Qin regime for
allowing petty laws to proliferate and for falling to control the magis-
trates, who "took advantage of the numerous, confusing laws to
bolster their authority . . .and to make life and death decisions
according to their own wanton lights.""0 3 The most famous Han
Confucian thinker, Dong Zhongshu (ca. 179-104 B.C.), declared: "Qin
failed to convince the good that they would be safe from violence and
the evil that they would face certain punishment."" °4 Dong Zhongshu
adopted the Confucian position that benevolence must outweigh strict
harshness in government, but like most of his contemporaries, he
agreed that the death penalty must never be remitted once a sentence
was determined; it was for this reason that the categories of crimes
warranting death had to be kept clear. Justification for maintaining
consistency in using the death penalty was stated most clearly in the
Guanzi: "When the people know that the death penalty is inevitable
they will fear it."05 Hanfeizi argued that the kings of old could use
the harshest punishments without inciting vengeance because they

101 XINSHu (SBBY ed.) 7.4b.

I'- HuAiNANzi 3.2a-b. John Henderson discusses correlative thinking in Chinese thought
in THE DEVELOPimT AND DEcLINE OF CHINEME COSMOLOGY (1984). I follow his translation
for this passage.

'0- HA.sHu 49.2296.
1o4 HANsHu 49.2296 and 56.2510.
1-5 GuANzI 7.8a.

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JOURNAL OF CHINESE LAW

never used force for capricious or malicious reasons." 6 Moreover,
the intelligent ruler would restrain his magistrates with laws and use
measures to correct their errors. . . ." And then there need be no
release from the death penalty.""0 7 Therefore, the subjects' obligation
to submit to the force of the state was not unconditional. Only if the
state used violence against its own people according to laws that
removed life and death decisions from the passions of the ruler and
his magistrates could order and obedience be secured and only if the
people trusted the ruler's laws regarding death would they be willing
to die for him in battle, as the Jingfa pointed out in the Junzheng
section. The need for clear laws and consistent punishments, adminis-
tered by rulers and magistrates concerned not with partisan interests
but with the public welfare, is reiterated in this text's sections on
law. 

08

In the Qin and Han legal and historical materials there is evidence
that clarifying the laws was considered an important duty of the ruler
and his officials. Even the first emperor, Qin Shihuangdi (r. 221-210
B.C.) - the supposed ultra-legalistic manipulator of law - was de-
scribed in his own propaganda not as a legislator but as one who
"made regulations and clarified the law."'0 9 Several instances are re-
corded in which Han emperors began their reigns by promising to
clarify and reform the laws. Han Yuandi (r. 49-33 B.C.), for
example, declared that the laws had become so confused that they
could not be understood and applied carefully and that he intended to
oversee their clarification." 0 Thus, a conservative tradition generally
seemed to dominate the process of legislation and legal reform.
Although we know from reading the histories that laws proliferated
and were in fact changed, the historians rarely presented the ruler as
the actual legislator - despite the standard view held by scholars that
the Chinese ruler was the chief legislator as well as the highest
judge."' Instead, according to the histories, the task of legal reform
was shouldered by court officials. The early example of the Legalist
reformer, Shang Yang, who reformed the laws in the face of a
reluctant ruler's objections, is modified somewhat in the descriptions
of reform in the Han historical sources, which show that legal reform

'06 See HANFEIZl JISHI 27.500 and 45.946.

07 Id. at 1.4.
" See especially the Mingfa and Fafa sections of the GUANzI for extensive discussions

on law and government.
", SHLu 6.245; for views of the First Emperor of China, see Li YUNING, supra note 7.
110 HANSHU 23:1103. See HULsEWE REMNANTs OF HAN LAW, supra note 33, at 339-40.
. See, e.g., HULSEWE REMNANTS OF HAN LAW, supra note 33, at 14.



THE RULE OF L,4W IN EARLY CHINA?

was usually directed by imperial command. According to the
mythology created to rationalize the Han dynasty's use of force to win
the empire, Gaozi (r. 202-195 B.C.) legitimated his forceful entry into
the old Qin homeland by promising to simplify the Qin laws. It was
his Prime Minister, Xiao He (d. 193 B.C.), who augmented the code
to render it workable. 2 Later, at the peak of the dynasty's power,
Han Wudi called to court Zhang Tang (d. 116 B.C.) to "establish and
settle the laws and ordinances," but this intrepid official was warned
by a contemporary that he deserved to be wiped out along with his
kin for tampering with the old ways."' Jia Yi (201-169 B.C.), a
prominent scholar-official with expertise in both legal procedures and
the Confucian scriptural sources, reformed the laws and died in exile.
Perhaps the historians were presenting a Huang-Lao ideal of rulership,
one in which a non-interventionist ruler simply clarified the laws he
inherited from his predecessors. Or perhaps the rulers were convinced
that they would survive longer if they could transfer the blame for
problems in the legal system to their officials.

Not as lawmakers were Han rulers described in contemporary
sources then, but as supervisors of legal reform and as supreme
judges, who at times demonstrated their benificence by attempting to
temper the harshest punishments - at times in face of objections from
their counsellors. In one case, Han Wendi argued with his high
officials, who resisted his proposal to eliminate the mutilating
punishments on the grounds that softening the force of the law would
encourage disobedience. The Emperor appealed to tradition to support
his case, citing the Book of Songs as the authority for his benevolent
intentions. The officials who protested also appealed to the past,
stating that the mutilating punishments had a long history; they
proposed an alternative system of precisely defined application of the
bastinado that in reality was more harsh than mutilation since people
died from the beatings. As Ban Gu comments, nothing changed.' 4

And it is interesting to note that those who committed crimes defined
as acts against the dynasty or the state were almost never exempted
from the harshest punishments. 5 Nonetheless, Han monarchs did
not make decisions about law and punishment in isolation, but in close
consultation with their high officers. Nor were laws changed capri-

112 HANsHIJ 23.1096.

Id. at 1101.
114 Id. at 1097-1100.

,t5 See BRIAN McKNIGHT, THE QUALITY OF MERcY: AmES AND TRADmO,.AL CHI-
NESE JUsTIcE 156-62 (1981).

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JOURNAL OF CHINESE LAW

ciously in the ideal legal system. According to the Guanzi priority
should be assigned to maintaining stability in the law: "The laws are
more important than the people . . . so do not twist the laws and
statutes out of affection for the people." i. 6 From reading the histo-
ries, it seems that what Henry Maine called the "legal fiction" was at
work in the early empires in China: new laws were constructed
according to the myth that they simply reinforced old values." 7 Han
Chengdi (r. 33-7 B.C.), ordering his legal officials to clarify the
ambiguities in the regulations governing the death penalty, declared:
"We must strive to conform with the laws of antiquity.""'

Removing ambiguity from the codes was one means to curb bureau-
cratic corruption and to institutionalize official accountability, an
important condition for the realization of the Rule of Law. Certainly
the precise procedural models for official reporting that are included
in the Shuihudi materials demonstrate that the Qin state was concerned
with accountability and that it at least attempted to control its
magistrates through constant scrutiny. It is known from a manual
recovered from the Shuihudi site that the state expected its local
officials to carry out their duties efficiently, with a clear understanding
of the laws and in a spirit of public duty.1 19 Moreover, the magis-
trates were held accountable for their treatment of criminals by virtue
of elaborate guidelines and constant supervision, procedures which
might have, however inadvertently, offered some protection for the
common people. Particular attention was paid to maintaining elaborate
procedures to curb official corruption and dishonesty, 2 ' and from
the Qin legal materials we can see how carefully the state outlined
procedures for criminal investigation. Hulsewe recounts some of the
measures taken to establish an appropriate punishment:

Starting with the juridical material, one is struck by the care be-
stowed on the investigation of criminal suits. It started with detec-
tive work, on which detailed reports were required. A report on
the corpse of a man found murdered in the highway describes the
exact location of the body, the fatal wounds, the man's clothes,
and even his shoes found at some distance from the body. . ..

Once caught the suspect was interrogated. The investigating offi-

126 GUANZI 15.6a-b.
117 HENRY MAINE, ANcIENT LAW 20-28 (1888).
... See HANSHU 23.1103 and HuLSEwE REMNANTs OF HAN LAW, supra note 33, at 340.

"9 YATES AND McLEOD, supra note 33.
229 HULSEWE REMNANTS OF HAN LAW, supra note 33, at 7-50.



THE RULE OF LAW IN EARLY CHINA?

cials are urged, not to lose their patience when the suspect
continued to prevaricate and when it was evident that he was
lying; they should not be too quick in applying torture in the
form of beating, in order to obtain a confession, only doing so
in cases where the statutes permitted this. A confession vrung
from a suspect by means of torture was considered inferior.' 21

Clearly this system had draconian aspects, since guilt was assumed
and the use of torture condoned. But, as Hulsewe has shown in his
study of Qin and Han law, appeal was possible in some cases.12

According to Ban Gu's history of punishments, the Han dynasty's
practice of submitting doubtful cases to a higher authority began with
the founding emperor and was refined by later rulers. In Jingdi's reign
(r. 157-141 B.C.), an edict was issued that stated that whenever there
was a doubtful case, even if it had been decided according to the
letter of the law, it must be referred up - to the Commandant of
Justice and the Emperor himself if doubt remained at any level.
Moreover, to protect lower-level officials, it was stated that even if an
ordinance existed to cover the crime and even if the higher authority
disagreed with the original verdict, the local official would not be
liable for punishment for a wrong judgment." It seems then that
legal officials empowered to investigate and try cases were not given
latitude for arbitrary decisions, because they were held accountable for
any mistake in establishing a correct punishment for crimes that came
under their jurisdiction.

Guidelines for officials dealing with legal cases were extensive and
specific, but a separate judicial system - an element in modern legal
systems characterized by the Rule of Law - cannot be identified in
the early empires, because legal duties were deemed but one aspect of
the officials' charge at most levels of the state organization. Yet, the
highest law officer in the realm, the Commandant of Justice, operated
as the head of the bureaucratic process of determining punishments.
The tingwei's duty was to "bring equity in criminal suits and to
memorialize sentences that were suitable." 4 He also pronounced

121 HULSEwE REmNANTS OF CH'IN LAW, supra note 33, at 6-7.
- See HANsHu 23.1106; HULsEWE REMNANTS OF HAN LAW, supra note 33, at 343.
i HANSHu 23.1106.

See A.F.P. Hulsewe, The Functions of the Conumandant of Jusice During the Han

Period, in CHINESE IDEAS ABOUT NATURE AND SOCETY: STUDIES IN HONOUm OF DERE
BODDE 249-62 (Charles Le Blanc & Susan Blader eds., 1987). It is interesting to note that a
premeditated crime was given a harsher punishment than one committed without prior intent.
A section of the Qin laws from Shuihudi, which Hulsewe has translated as "Answers to

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JOURNAL OF CHINESE LAW

judgment on difficult cases submitted from the commandaries and
kingdoms. He collected precedents, supervised legal reform, acted as
the highest appellate judge, and supervised criminal cases that involved
highly placed members of the bureaucracy. From Hulsewe's useful
survey of cases involving the Commandant of Justice, it seems that his
duties focused primarily on guarding the dynasty against rebellion,
corruption and slander. It was also his particularly difficult duty to
guard the state against the crimes of the imperial kin and he was quite
often involved in sentencing and punishing members of the imperial
clan whose ambitions threatened the state.125 The most difficult
issues regarding the imperial family itself then, were subject to legal
procedures. As Benjamin Wallacker has described, the dangerous task
of dethroning an unsuitable emperor followed a strict procedure and
precedents worked out in Han times took on the force of law for later
dynasties. 

126

Moreover, the principles held by the highest legal bureaucrat could
on rare occasion overrule even the emperor's will in legal matters. In
one case, a particularly idealistic and tough-minded Commandant of
Justice, Zhang Shizhi, disagreed with Emperor Wen about how to han-
dle a case in which a commoner had inadvertently endangered the
ruler. To back his proposal for a lighter sentence than the irate ruler
demanded, Zhang Shizhi argued: "The Commandant of Justice is the
one who keeps the empire balanced. To allow even one deviation in
the laws would cause them no longer to be taken seriously. And then
how would the people know how to behave?" More importantly, he
placed the ruler and the people within the same legal and normative
universe: "The law is what the Son of Heaven shares with the people.
If it were made heavier in this case, the people would no longer trust
it."' 27 To be sure, the Emperor reminded his righteous official that
he could have had the unfortunate man executed on the spot. It seems,
however, that once certain cases entered the domain of the legal
officials, decisions about punishments were negotiated between the

Questions Concerning Qin Statutes" includes the following query: "In a fight one uses a needle
. ..or an awl; if the needle . ..or the awl wound people, how is each (of these cases) to
be sentenced? (When this was done during an un-premeditated) fight, this warrants a fine of
two suits of armour; when (with) murderous intent), it warrants tattooing and being made t
ch'eng-tan [laborer for the state." HULsEwE REMNANTS OF CH'IN LAW, supra note 33, at
142. I have slightly altered punctuation and have added a translation for cheng tan.

125 HULSEWE, supra note 124.
226 See Benjamin Wallacker, Dethronement and Due Process in China, 21 J. ASIAN HIST.

48 (1987).
27 HANSHU 50:2310.



THE RULE OF LAW IN EARLY CHINA?

throne and the bureaucracy.'2 Han Wendi was an insecure and
malleable ruler and Zhang Shizhi an unusually upright official - he
had censured the heir apparent for impropriety, for example. Yet this
incident suggests that at least in theory, legal decisions were placed on
a separate plane from imperial command. It is true that early China
produced no courts and no administrative organs capable of punishing
a lawless ruler. But prescribed notions of kingship were so clear that
what Weber has called "psychic coercion," fear of criticism and
ostracism by the community, did at times seem to exercise restraint
over some individual rulers. Even the strong-willed Han Wudi (r. 147-
87 B.C.), for example, explained that he was deferring to the laws of
his ancestors when faced with the unpleasant task of sentencing to
death a nephew. Wudi, like other Han emperors, may well have
manipulated this conception of the old laws as a means to control his
troublesome kin. But he seems to have judged it more strategically
sound to appeal to a higher authority than his own will. 2 9

Despite the clear arguments for natural law in the philosophical
texts, the old laws, filial duty, or perhaps strategic concerns seemed
to curb imperial ambitions far more effectively than natural law, which
seems to have served as an intellectual construct rather than a
powerful deterrent against the abuse of power. Indeed, instances in
which the dao was called upon to legitimate a legal decision are rarely
found in the histories. Instead, as the Confucian literati began to
dominate court affairs, the oldest books served more and more
frequently as repositories of wisdom for finding consensus about how
to handle difficult legal decisions. 3 The old books that Han dynasty
Confucian erudites claimed to be authoritative guides to decision-
making in their own day became more widely used during the second
century of the Han dynasty, and as Confucian values began to
dominate the legal system, ascriptive rather than bureaucratic values
became encoded in the laws.131 Therefore, law remained closely tied
to normative values throughout the imperial period in China. But it is
important that assessments of legal theory in early China recognize
that at a significant moment in Chinese history, ideals of predictabili-
ty, impartiality, consistency, and bureaucratic as well as imperial

":' For a study that demonstrates that government in the Han rested on a fluid balance of
power between the ruler and the bureaucracy, see HANS BIELEN riN, THE BUREAUCRACY OF
HAN TI S (1980).

12- HANsHU 65.2852.
'. Benjamin Wallacker, The Spring and Aumrnn Annals as a Source of Law in Han

China, 2 J. CHIN. STUD. 59 (1985).
1"1 See DERK BODDE & CLARENCE MORRIS, LAW IN IMPERIAL CHINA (1967).

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JOURNAL OF CHINESE LAW

accountability were articulated, and at times put into practice.
Moreover, these ideals were linked with a universalistic model of state
and society.

V. THE RULE OF LAW AND JUSTICE

As I hope to have demonstrated, even a rudimentary comparison of
deliberations about the nature and function of law in the Western and
Chinese traditions brings to light the complex legal theory that the
classical Chinese world produced. Chinese thinkers discussed the
utility of law in government, the difference between laws and
commands, the need for universal and clear standards for guiding the
ruler, the importance of a principled, predictable application of
punishments, and the necessity of proceeding with caution when
changing the laws. They put forth a model of government that relied
on standards designed to remove the arbitrary, personal element from
ruling and that transcended particularistic interests and customs. But
this was only one model, and it coexisted with the Confucian ideal
that moral men who based their decisions on human feelings, a broad
understanding of the welfare of the community, and the complexity of
human behavior, could arrive at the best possible decisions.'

In this final section, I will assess the benefits and the limitations of
using the Rule of Law as a heuristic device for interpreting law in
early China. On the positive side, I think that a familiarity with some
of the vast literature generated in the West on the problem of
mitigating the Rule of Law with the discretionary judgment of moral
men allows students of Chinese law to engage in questions of
universal concern. Thus, modern observers of the contemporary
Chinese Communist legal system, dismayed with good reason over its
disregard of law, can see that the unalloyed Rule of Law may not be
the only solution for China's contemporary ills. Certainly, as I pointed
out earlier, the Rule of Law has not consistently been viewed as an
ultimate human good in the West. The value of general and fixed laws
to achieve justice in the face of the complexity of human situations
has been seriously questioned since Plato's argument in favor of the
wise man as the most effective guardian of the common welfare. The
limits of formal law were noted even by Aristotle, who brought up the
problem of the "matters of detail about which men can deliberate but

,S2 For a very useful and new interpretation of Confucian concepts of justice, see R.P.
Peerenboom, Confucian Justice: Achieving a Humane Society, 30 INT'L. PHIL. Q. (1990).



THE RULE OF LAW IN EARLY CHINA?

which cannot be included in legislation."133 Modern thinkers contin-
ue to grapple with the problem of finding ways to overcome the
limitations of general laws to cover unique circumstances. Even those
writers who criticize legal formalism acknowledge the need for legal
and administrative frameworks to confine the decisions of officials
who must make judgments after the facts and the laws are known. For
example, Kenneth Davis points out that discretion is exercised at all
levels of the official system and is not limited to substantive choices
but "extends to procedures, methods, forms, timing, degrees of
emphasis, and many other subsidiary practices."" 3 Thus Western
legal theory has alternated between periods when excessive attention
to certainty and rigid rules seemed to provoke counter-demands for
creativity and flexibility in law.135 Furthermore, it is obvious that no
government has ever managed to devise a legal system that could
afford to tolerate creative decisions unfettered by rules or that could
mechanistically implement laws without human intervention.

It is interesting for the specialist in Chinese law to learn that some
Western legal theorists who have doubted the capacity of formal law
to ensure justice have found elements of the Chinese past attractive.
Judge Jerome Frank, one of the most controversial of the Legal
Realists, for example, eloquently argued for discretionary justice in
terms that echo the Confucian view of the moral magistrate:

The rules are a sort of legal machinery. But legal machinery will
not suffice. The men who operate that machinery must be keenly
alive to their immense responsibilities to the citizens. We could
not, if we would, get rid of emotions in the administration of
justice. The best we can hope for is that the emotions of the trial
judge will be sensitive, nicely balanced, subject to his own scruti-
ny. The honest, well-trained trial judge, with the completest
possible knowledge of the character of his powers and of his own
prejudices and weakness, is the best guaranty of justice. The wise
course is to acknowledge the existence of "personal element" and
act accordingly.136

'" PoLITIcs 3.16.
'"KENNEmI DAVIS, DISCREIONARY JUSTICE: A PREI.INARY INQUIRY 4 (1969).
I.S See Spader, supra note 12, at 107.

" JEROME FRANK, COURTS oN TRIAL: MYr AND REAIrry IN AEIUCAN JUSTICE 411-
12 (1949).

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JOURNAL OF CHINESE LAW

Not surprisingly, Judge Frank admired the Chinese legal system,
which like that of ancient Greece, attempted to reach equitable justice
through negotiation and arbitration and avoided litigation as a
"virtually immoral" process. Frank's positive evaluation of the Chinese
system was based on an incomplete perception of the complexity of
Chinese legal history; but it can serve to caution observers of Chinese
trends that while the Rule of Law may seem to be an unqualified
good by those who deplore China's modern authoritarian governments,
China's ancient system can offer a positive model to Westerners
disillusioned with the rigid Rule of Law. Furthermore, as the history
of modern criticism of the Rule of Law demonstrates, judgments about
its value are not made in a political vacuum, but respond to perceived
problems in the judicial system and to more general intellectual and
political forces.' 37 When viewing Chinese political culture, either in
the past or in the present, contemporary observers might do well to
recognize that the Western tradition itself is complex. Just as Western
theorists cannot trace a clear line from Aristotle to the present, so too
should scholars of Chinese law not expect the Chinese tradition to
have produced a fully developed legal order.

Nor is it productive to blame a single group of early Legalists for
all of the problems in the legal system--past and present. If one
attempts instead to understand the problems confronted by responsible
thinkers and reformers who worked in a premodern society in which
institutions were fragile and personal leadership inevitably dominant,
one can better understand the range of their choices. Discussions of
the evolution of the Rule of Law in the West make it possible to view
the Chinese Legalists not as immoral Machiavellian creatures who
served the ruler's whims but as self-interested bureaucrats, whose
livelihood depended on institutional stability and the maintenance of a
bureaucratic organization. As Max Weber suggested for the early
modern West, legal uniformity served rulers who desired unity and
bureaucrats who valued widespread employment opportunities: "While
thus the bourgeois classes seek after 'certainty' in the administration
of justice, officialdom is generally interested in 'clarity' and 'orderlin-
ess' of the law." '138 Moreover, if one looks at pragmatic motives,
the Confucian theorists seem not so much simple-minded opponents of
law but supporters of the value of the models of the past, a stance
that by the time of the end of the Han dynasty allowed them to secure

"7 See Spader, supra note 12, at 107.
08 MAX WEBER, 2 ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY

847-48 (Guenther Roth & Claus Wittich trans. & eds., 1978).



THE RULE OF LAW IN EARLY CHINA?

dominance as interpreters of the law by keeping an exclusive hold on
textual exegeses. In an article on current debates about relativism and
objectivism, Prasenjit Duara notes that the tendency to equate power
with knowledge is universal: "All forms of knowledge are born in
historical society and become implicated with the dynamics of power
in this society." He goes on to declare that the extreme relativist
position often sees societies as cohesive entities and the dominant
orthodox voice as representative of the whole.'39 It would seem,
then, that an analytical framework generated from outside the
pervasive Confucian view enables the modern reader to view different
attitudes about law that emerged in China's early period of centraliza-
tion as but one expression of a complicated power struggle between
ruling elites in a period of change and expansion. The model of Rule
of Law offers students of Chinese history a framework to move
beyond judgments based on moral indignation when evaluating legal
reform early China.

On the negative side, while a valuable paradigm for analyzing legal
philosophy and institutions in early China, the Rule of Law is less
effective for uncovering how ideals of justice and law intersected. Any
attempt to apply a universal standard of justice to the Chinese case is
complicated by problems of translation, debates in the Western
tradition about the relationship between law and justice, and by
different ideals of justice in elite and popular views. If Western
theorists cannot agree on what is just in their ovn legal culture, how
much more difficult it is to understand what was considered a just
legal solution in early China. Social cohesion was certainly one goal
of government in China and it is generally agreed that economic
livelihood has always taken precedence over individual freedoms. But
from the official point of view in the early imperial period, justice had
a more specific, culture-bound connotation.

In the Huang-Lao and Legalist writings, and from the Shuihudi
codes, it seems that the substantive goal of the legal system was that
it should serve as a standard for assigning an appropriate punishment
for crime. For example, the term that seems to offer the most ap-
propriate translation of justice in Chinese, zheng, is often associated
with discussions of lav and carries a range of meanings from "to
correct," "straighten," "make right" and "punish." Zheng differs from

... Prasenjit Duara, Knowledge and Power in the Discourse of Modernity. The Campaigns
Against Popular Religion in Early Twentieth-Century China, 50 J. ASIAN STUD. 63, 73 (1991).

1992]



JOURNAL OF CHINESE LAW

yi, the norms governing behavior between humans, 140 and it is
sometimes associated with zhi, the term for straight-as opposed to
crooked. A passage in the Qin laws offers a clue about what the state
considered a "just solution." In "Answers to Questions Concerning
Qin Statutes," Hulsewe translates the following passage:

In pronouncing judgment in criminal cases, [what is meant by]
"not straight"? When a crime warrants a heavy (punishment) and
purposely to lighten it, or when a crime warrants a light (punish-
ment) and purposely to make it heavy, that is the meaning of
"not straight. "141

The assignment of a correct, even if harsh, punishment, constituted
the state's version of what was right, a view that emerged in part as
a response to cosmological assumptions about the relation between
appropriate punishment and natural and social harmony. Such careful
calculations about punishment can lead one to speculate that predict-
ability and standardization removed a certain amount of arbitrary
official interference in the lives of Qin and Han subjects.

A careful reading of the legal materials demonstrates, however, that
the state was concerned not with guarding individual rights or with
enhancing the quality of its subjects' lives by allowing them to know
the rules, but with preserving human and material resources for its
own use. For example, fines or labor in the service of the state were
the most common punishments meted out to commoners, who are
described in the Qin code in terms of physical attributes or talents that
might be useful for the state. Furthermore, the Shuihudi materials
demonstrate that the Qin state paid a great deal of attention to any
action on the part of officials or commoners that would deplete its
resources. Hulsewe indicates from his study of the materials that
officials were harshly punished for neglecting government stores and
for failing to deliver local men for military and labor service.' 41

This concern with controlling human life might be similar to the idea
of the "bio-power" of the state that emerged in the early modern
West. According to Michel Foucault: "The sovereign exercised his
right of life only by exercising his right to kill, or by refraining from

'40 BERNARD KARLGREN, ANALYTIC DICTIONARY OF CHINESE AND JAPANESE 340, 384

(1974). ROBERT ENO, THE CONFUCIAN CREATION OF HEAVEN: PHILOSOPHY AND THE DEFENSE
OF RITUAL MASTERY 112-14, 216 (1990) discusses the nature of yi in the Confucian tradition.

14, HULSEWE REMNANTs OF CH'IN LAW, supra note 33, at 144.
142 Id.



THE RULE OF LAW IN EARLY CHINA?

killing . . . the right which was formulated as the 'power of life and
death' was in reality the right to take life." 43 Foucault traces this
juridical form of sovereignty to an historical society in which state
power defined itself as the ability to seize human labor, produce,
time, and life itself. We see from the Mawangdui texts that the state
is given the right to kill its subjects and the duty to grant more lenient
sentences if they so deserved. And these activities were to be carried
out at the proper time, and with the appropriate degree of severi-
ty." But from the Qin code, it seems that humans were spared
death, not necessarily because of any concern for human rights or
dignity, but quite possibly because they were viewed as valuable
resources. Therefore, Foucault's writing on the state's utilitarian view
of human beings warns us that we must view the early imperial
Chinese state's attempts to preserve its subjects from official abuse not
as an expression of concern for procedural justice to protect individual
rights but as a means to preserve human and material resources for its
own purposes. The stability that procedures designed to ensure predict-
ability and consistency brought to early Chinese subjects was but an
incidental effect of other more pragmatic considerations.

Furthermore, while the model of the Rule of Law as it is derived
from the Western experience allows the sinologist to see the Chinese
case from a viewpoint quite different from that presented by the domi-
nant Chinese Confucian elites, it does not offer a means to analyze the
perceptions and interests of subaltern groups in Chinese society. The
interests of minority groups do not come to life, not only because the
sources are limited, but because the Rule of Law focuses on official,
state law. Only by moving beyond paradigms that adopt the elite
standpoint can it become possible to see how women, slaves, and
artisans might have fared better at times under customary law than
bureaucratic law, for example. Certainly, it is suggestive that so many
of the metaphors for describing law as a standard measure, such as a
marking line or a balance-beam, reflect the language of the artisan and
the merchant, groups with relatively low standing in the orthodox
Confucian hierarchy, but as in the case of merchants, with significant
real power at various times throughout the imperial period.

Finally, the concept of the Rule of Law fails to take account of how
fundamental assumptions about knowledge and human nature can affect
legal institutions. As this article points out, there are some remarkable

1 IcHEL FOUCAULT, THE FOUCAULT READER 158-60 (P. Rabinow ed., 1934).
4' This theme is most clearly discussed in the Zhunzheng section of the Jingfa.

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JOURNAL OF CHINESE LAW

similarities between Stoic notions of natural law and those put forth
in some of the late classical eclectic texts in China. The historical
context in which conceptions of law based on nature evolved in China
and in the West are functionally alike, for in both early societies the
construction of a unified imperial state created a need for a single
source of law that transcended particular customs and laws. But late
classical thinkers in China worked with notions about human nature
and epistemological assumptions and ideas about the relationship
between the human and natural worlds that were different from those
held by their counterparts in the West. Third and second century
Chinese theorists were not attempting as were the Stoic thinkers to
transcend a tradition that held that only certain humans could be
reached by moral prescriptions. From its beginnings, Chinese political
theory based its arguments for ideal government on the assumption
that all humans operated within a common normative universe. The
Confucian ideal of the efficacy of moral leadership and education was
founded on the belief that all humans could potentially respond to
common values. And the Legalists based their advocacy of strict
impartial laws on the grounds that all humans would ultimately yield
to the lure of rewards and the fear of punishments. But if the notion
of a moral and social community described by the Chinese political
theorists was fundamentally inclusive, their theory of knowledge was
exclusive. The universal, timeless idea of nature embodied in the dao
- which formed a basis for all laws and institutions in some of the
eclectic texts was not a principle, like logos, that could be shared by
all humans by virtue of reason; only the sage could attain the clarity
of vision that would enable him intuitively to understand and grasp its
meaning.145 Nor were Chinese thinkers concerned with the rights of
individuals to weigh their obligation to obey the laws as in the

"4 For a description of the qualities of the sage, see Harold Roth, The Early Taoist

Concept of Shen: A Ghost in the Machine?, in SAGEHOOD AND SYSTEMATIZING THOUGHT IN
WARRING STATES AND HAN CHINA (K. Smith ed., 1990); SCHWARTZ, supra note 59, at 248.
Professor Schwartz aptly describes the sage ruler bound to the dao as possessing a quality of
"mystic gnosis." This quality has instrumental aspects in other societies. Schwartz quotes
Lovejoy: "[The] otherwordly philosopher is made the ruler or secret ruler of the world. The
mystic or the saint becomes the most powerful and sometimes the shrewdest of politicians.
There is perhaps nothing so favorable to success in the world's business as a high degree of
emotional detachment from it."



THE RULE OF LAW IN EARLY CHINA?

Wese6 or with the problem of understanding the limits of human
will in a determinate moral universe.1 47

The Chinese political theorists I have used for this study couched
their arguments to reach rulers who bore a fiduciary responsibility to
maintain harmony between the human and natural worlds. The law of
nature in China was conceived not as a principle available to all
humans to judge the justice of the state's laws and commands by
virtue of reason, but as a guide for those special humans who pos-
sessed the power to establish laws and institutions on behalf of the
universal community of humankind. Perhaps we can trace the prefer-
ence for trial by jury in the West to the belief that all humans could
reasonably judge their fellows and the fiduciary ideal in China to the
assumption that justice could best be found by a few morally superior
individuals. Thus, in both traditions, natural law served as a measure
to transcend territorial laws during periods of unification; but the
ultimate purpose and level of participation included in the definition
of natural law was different. For the Stoics, as for early medieval
European thinkers, natural law served as one yardstick that "reason-
able" men could call upon to gauge the legitimacy of the state's laws
and punishments. In time in the West, some thinkers would link
natural law with the natural rights of humans vis-a-vis the state. But
early Chinese thinkers did not separate the natural world from the
social and political realms; for them all actions in one sphere
resonated in the other. Natural law in ancient China existed not as a
principle available to all humans to measure the justness of the state's
commands and laws but as a guide that would allow the enlightened
ruler to determine how to use force correctly, that is, in a manner that
would cancel out the evil and disruptive effects of deviance on behalf
of all society. Most importantly, a comparison of Western notions of
the Rule of Law with early Chinese ideals demonstrates that these
thinkers rarely seemed willing - or able - to conceive of law as
valid simply because it was created, implemented, and changed
according to formal rules. The rules were important, but they were
less important than the ultimate ends that the system itself should
serve. And paradoxically, precisely because procedural justice was
deemed less important than substantive justice, more latitude existed
for manipulation. Notions of what was natural, good, or traditionally

. FINNIs, supra note 17, at 272-73.
"' WEINREB, supra note 53, at 4-6. For a survey of the intellectual and moral issues

generated by the notion of natural law in the Western tradition, see D'ENTREVES, supra note
47.

1992]



44 JOURNAL OF CHINESE LAW [6:1

correct could all be altered to suit the interests of different dominant
groups in Chinese society.

It is this ultimate focus on the decisions of rulers and officials to
guide and to define the goals of the legal system that distinguishes the
classical Chinese idea of the function of law from that produced in
classical Greek and Rome. And from what the late classical Chinese
theoretical texts, legal procedural manuals and histories demonstrate,
the elites who formulated and implemented the law were servants of
the state, charged above all with protecting its interests. The law was
a component of an authoritarian state, and when it operated in such
a way that the good of the state coincided with the good of the larger
community, one might argue that law served "justice." But the idea
that all humans possessed the means and the right to decide what is
just and lawful did not take root in early China.