China Legalism

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Faculty Research Working Papers Series

The Internal Morality of Chinese Legalism
Kenneth Winston
June 2005
RWP05-041

This paper can be downloaded free of charge from the Social Science Research Network at: http://ssrn.com/abstract=757354

The views expressed in the KSG Faculty Research Working Paper Series are those of the author(s) and do not necessarily reflect those of the John F. Kennedy School of Government or Harvard University. Copyright belongs to the author(s). Papers may be downloaded for personal use only.

Kennedy School of Government
Harvard University
DRAFT June 20, 2005
The Internal Morality of Chinese Legalism
Kenneth Winston

Abstract
It is widely held that there are no indigenous roots in China for the rule of law; it is an import from the West. The Chinese legal tradition, rather, is rule by law, as elaborated in ancient Legalist texts such as the Han Feizi. According to the conventional reading of these texts, law is amoral and an instrument in the hands of a central ruler who uses law to consolidate and maintain power. The ruler is the source of all law and stands above the law, so that law, in the final analysis, is whatever pleases the ruler. This essay argues, to the contrary, that the instrumentalism of the Han Feizi is more sophisticated and more principled than the conventional reading acknowledges. It suggests that, by examining the text of the Han Feizi through the lens provided by American legal theorist Lon Fuller, we can detect an explicit articulation of what Fuller called the internal morality of law. The principles of this morality are elaborated and their importance explained. In this way, the Han Feizi is retrieved as a significant reference point for thinking about legal reform in China today.

I am indebted to Liang Zhiping and David B. Wong for comments on an earlier draft, and to William P. Alford, as ever, for his guidance in thinking about law and legal institutions in China.

The Internal Morality of Chinese Legalism
Kenneth Winston
Introduction

The rule of law is now commonly regarded as an obligatory step to establishing China’s rightful place in the global community. Yet it is widely believed that there are no indigenous roots for the rule of law ideal; it is an import from the West. The Chinese legal tradition, rather, is rule by law, as elaborated most fully in ancient Legalist texts such as the Han Feizi.

The distinction between rule by law and rule of law has many dimensions. Of central importance is the relationship of law and morality. Although no canonical formula exists for the rule of law, a moral ideal lies at the core, however it is specified. In rule by law, in contrast, at least according to the conventional understanding, law is amoral and an instrument of power. A typical statement is offered by Burton Watson, the respected translator of Han Fei’s work in English: Legalism, Watson says, “professed to have no use for morality whatsoever” (and similarly for religion and ceremony). It focused on a single problem: strengthening and preserving the state.1 In this regard, Watson follows Arthur Waley, who said that members of the “school of law” (fajia) “held that law should replace morality.” Instead of the term “school of law,” which he regarded as too narrow, Waley referred to members of the fajia as “the Amoralitsts.”2

It is because of this alleged amoralism that Randall Peerenboom can write a 670page book on “China’s long march toward [the] rule of law” and barely mention Han Fei. Peerenboom expresses the conventional view: for Han Fei, law is one instrument in the ruler’s toolbox for sustaining strong centralized control. Since the ruler is the source of all law, and stands above the law, there are no limits or effective checks on the ruler’s arbitrary power. “In the final analysis, law was what pleased the ruler.”3 This view of Legalism is reinforced by a particular reading of Chinese legal history during the period of the Three...
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