Written by Kenneth Winston.

It is commonly observed that Chinese legal history was guided for centuries by the idea of rule by law, rather than rule of law, which explains why legal reform in China requires the infusion of Western practices if it wishes to create a modern legal system. This brief historical note argues to the contrary that traditional Chinese legal thought on rule by law is a rich indigenous resource and provides independent legitimation for contemporary reformers.

“Legalism” is the conventional translation of the Chinese fajia (school of law), referring to a tradition of thought and practice that regards law as the principal instrument of governance. Although traces of this school can be found in writings dating to the 7^th century BCE, it emerged as an influential body of thought in the fourth and third centuries BCE, and came to be associated with the rise of the Chinese imperial state during the Qin and Han dynasties. Representative thinkers are Shang Yang (d. 338 BCE), Shen Buhai (d. 337 BCE), and Han Fei (d. 233 BCE).

Legalism’s conception of law, in the standard view, is that law is amoral and an instrument of power, used to strengthen and preserve the state. This emphasis arose from preoccupation with the conditions of social order and the aim, as Han Fei puts it, to rescue all living beings from chaos. For the Legalists, order was not an abstract problem but grew out of their experience during the Warring States period, when many states contended for domination and the threat of war was constant. They wrote, in particular, about the resources needed to strengthen a state against its rivals, and thus anticipated the formative period of nation-building that began with the Qin dynasty. In the standard view, the ruler is the source of all law and stands above the law, so there are no limits or effective checks on the ruler’s power. Law is what pleases the ruler. This conception is most starkly expressed in the writings of Shang Yang, whose regard for human subjects was limited primarily to their value in fighting wars of conquest and expanding the state’s territorial control.

This is rule by law, in contrast to rule of law. The latter regards law as constraining the exercise of power, so that it is truly laws that govern legal subjects, not the desires of specific individuals or groups.  Rule by law, in contrast, appears within a relationship of domination, where a superior (in power) issues commands to an inferior (in power) and compels the inferior to act by threatening sanctions in the event of non-compliance, or sometimes rewards in the event of compliance. Thus, law is imperative, taking the form of commands; it is coercive, in relying on irresistible incentives manipulated by the ruler; it is pre-emptory, in taking priority over all other obligations; and it is morally arbitrary, since no limits exist on what the ruler could demand.

The most sophisticated elaboration of Legalist ideas was by the aristocrat Han Fei, a member of the ruling family in the small state of Han. His essays, collected in what has come to be known as the Hanfeizi, address their advice not to the ruler per se but to the good, enlightened, benevolent, or sage ruler. This does not mean Han Fei expected the ruler to possess exceptional qualities, either of virtue or intellect.  It suggests, rather, that he was elaborating an ideal of legal order, establishing criteria for success or failure in the enterprise. The mediocre ruler, especially, needs the guidance that comes from the correct ideal.  Criteria for success or failure are not necessarily moral criteria, but Han Fei is clear that the general welfare is the proper guiding goal: not only peace and harmony but also a productive labour force and general prosperity. As a result, the Hanfeizi stands somewhat apart from other Legalist writings, with deeper insight into the nature and need of a political morality of governance.

The moral dimension of the Hanfeizi has critical as well as constructive components. On the critical side, Han Fei opposes Confucianism and offers an extended critique of the forms of social order based on it.  The Confucian view is that right relationships are achieved through respect for authority, not the threat of force. Society is transformed by the virtuous example of an educated elite. Accordingly, Confucians object to rule by law because it depends on punishments and rewards, which reinforce self-interested calculation. These methods circumvent the sense of shame and fail to encourage habits of self-control, thereby undermining moral development. The proper method is rule by virtue rather than by law, to inculcate a sense of appropriate conduct (yi) and the rules of propriety (li), through education and imitation of exemplary persons.

To this, the Hanfeizi objects that Confucian rules of propriety constitute an esoteric body of knowledge requiring extensive study and training.  Since only small, select groups are capable of such training, Confucians have a monopoly on interpreting the rules and exemplifying virtue—and then expect deference from everyone else, including the ruler. Indeed, many Confucians measured their status in society by the laws they were exempted from, such as military service, taxes, and corvee labour. Whose interests are actually served by the activities of this educated elite? Han Fei’s answer is that they serve private interests, not the public good. In striking language, almost echoing the rule of law ideal, he says: “[T]he most enlightened method of governing a state is to trust measures [i.e., laws] and not men [i.e., Confucian ministers].” [Liao tr. 2:332]  Thus, Han Fei advocates equality before the law.

Of course, this idea of equality can be understood as a cynical effort to eliminate centres of power that might rival the ruler. In place of the five Confucian relationships, each with its own form of deference, we have the singular relationship of ruler and ruled. However, it can also be understood as an attack on the unjust privileges of a social class, for whom family pedigree or social rank were a basis for exemptions from general rules. Where the cynical interpretation requires reading between the lines, Han Fei’s moral critique is explicit; he often warns that the mandarin elite will act to increase its power and wealth, at other people’s expense, if the ruler fails to rein them in. The deep inequalities of Confucian society are a continuing source of conflict and injustice.

If Confucianism were all of morality, the Hanfeizi would be seen correctly as insisting on the separation of law and morality. But the commitment to equality before the law makes it evident that the ruler’s use of law to govern is a fateful moral choice. The self-restraint of subjects in doing what a rule requires is matched by the lawmaker’s self-restraint in adhering to the declared rule.  Rule by law requires official faithfulness, to provide the guidance and predictability needed for effective governance. To discard the law one has issued and instead follow one’s personal whim would produce disorder; the ruler establishes the standard and then abides by it. Thus, it is not the case that the ruler can change or revoke any law at his pleasure. To the contrary, the enlightened (benevolent, sage) ruler does not inflict punishment upon innocent people, or fail to inflict punishment on the guilty. In this and other ways, Han Fei gives expression to basic principles of legality, such as nullum crimen, nulla poena sine lege (no crime, no punishment without law).

The Hanfeizi also goes a long way toward recognizing that effective legal order depends on the moral agency of subjects. Since laws use general language, they abstract from particulars and take the form of conditional assertions: if someone acts in a specified way, certain consequences will follow. Thus, subjects are not coerced by law unless they act so as to place themselves in violation of it. They do not obtain permission from the ruler before they act; they act by their own lights, considering what official response may occur. In this way, the effective use of law turns on the capacity of subjects to engage in practical deliberation, to make choices, and to take responsibility for what they do.

The excesses of the Qin dynasty—much closer to the model of Shang Yang than to Han Fei—produced a permanent reaction in China against a purely Legalist approach to political order. Future dynasties attempted to achieve centralized legal control, while using law to protect a moral order constituted by Confucian practices. But the Hanfeizi’s emphasis on equality before the law and the moral agency of subjects offers an indigenous resource for elaborating a principled mode of rule by law that addresses the legal situation in contemporary China.

Kenneth Winston is a Retired Lecturer in Ethics at the Harvard Kennedy School and author of Ethics in Public Life:  Good Practitioners in a Rising Asia (Palgrave Macmillan 2015) Image credit: CC by Marc Garrido Clotet/Flickr.