Was "rule of law" totally absent from all of Chinese history?

[civfanatic]

The term "rule of law" refers to the concept that an entire state, including the government and political elite of that state, should be subject to the law. For instance, the modern United States is said to have "rule of law" because the government of the United States, headed by the President, has to obey the U.S. Constitution (which is the supreme law of the land). The President does not have the authority to arbitrarily create or enact his own laws, or violate the established law of the land; if he does so, he is liable to be impeached and removed from office. The purpose of such a mechanism is to prevent the exercise of "tyranny," or arbitrary and unjust exercise of force by the state.

Western historians have often claimed that the "rule of law" is a unique development of Western civilization, and does not exist in other civilizations. In particular, "Eastern" civilizations like China are often said to be bereft of a rule of law, and that the standard form of government in these parts is "Oriental despotism," characterized by the totally unrestrained rule of an all-powerful despot. In an "Oriental despotism" like China, the common people are said to have no rights as such, and are totally at the mercy of the whims of their rulers. There may exist a sophisticated and elaborate legal code and mechanisms of law enforcement, but these laws exist to enforce the will of the state, not to protect the people from the state. In other words, there exists a rule by law, not a rule of law.

A relatively recent example of such a claim by a Western academic can be seen in Francis Fukuyama's book Origins of Political order, where he writes the following concerning China (on pp.187-88):

Do you agree with the view propounded by Fukuyama and others like him concerning "Oriental despotism" and the lack of a rule of law in Imperial (as well as modern) China? Did China have any institutions at any time that restrained "tyrannical" rulers, or were Chinese subjects always in a position of abject servitude with regards to the ruling elite?

 

[Klausewitz]

I seem to remember that there was at the very least the idea of the 'Mandate of Heaven', i.e. that fucking up too badly indicate loss of favour by the forces of Heaven which allowed for elimanting the emperor.
Also Confucianism would, in my estimate, provide a firewall against to brazen despotism as well.
By the way, the great projects described are not so much violations of the rule of law as they are legitimate expressions of government policy within existing laws.

 

[Pyoro]

Don't know about laws exactly, but pretending that Asian ruler somehow could be more arbitrary than Western ones seems odd to me. Commoners (or serfs...) in either society weren't very well off until modern times, and whatever any maybe-existing law said, they usually had no real recourse if any leader or noble decided to ignore laws or customs. So if we're strictly talking about some formalized constitution I might buy that it's true in some coincidental way, but I kinda doubt it has much of an actual relevance as an explanation for anything much (until relatively recently).

Also:
"The strong, precociously developed Chinese state has always been able to carry out tasks that India could not..."
Except when it didn't, eh? ^^

 

[JodelDiplom]

I don't remember any particular Chinese era being noted for its lawyers and trials.

The were eras where China was a hub for international trade and had huge communities of traders and artisans from all around the world in its big cities (Tang dynasty f.ex.)... Those periods ought to have had decently developed law systems because how else do you manage all those traders and foreigners otherwise. But AFAIK that wasn't really something they wrote about in the history books.

 

[Klausewitz]

But is a epoche of rule of law signified by its lawyers and trials?
Maybe I am understanding the term wrong (absolutly possible) but I was under the impression that 'rule of law' refers to a state of affairs were the monarch/despot/etc. is limited in his exercise of power by rules and regulations that are above him in importance, i.e. there are laws that even apply to the monarch.
And I would argue that China had that in Daoism, In Confucianism and in the whole idea of 'Mandate of Heaven'.

 

[Pyoro]

Legalism would probably also apply, as the idea was that the state is a such a finely tuned machine that the ruler is just another piece in the puzzle like everyone else, and he does exactly his job and nothing more.

And I'm fairly sure with the Chinese bureaucracy and so on there were plenty of rules for most people in the state machinery (whether those were more important than the people enforcing them is perhaps a different question and probably depends on the era we're looking at).

But if we're talking about an actual constitution or something like that, can't think of one. Similar to the Japanese Emperor - I feel in both cases, they were basically constrained in their actions by putting them so high up on a pedestal they couldn't truly act without a court around them. They had to rely on whatever information and so on was brought to them; and if they needed some rebellion put down, they had to rely on local governors and generals instead of going out themselves (often anyway), which meant they had to rely a lot on the people around them for actual governing. A Japanese Emperor, even if he had wanted to, couldn't just go and walk down a street or do a myriad of other things because they were "beneath him". I mean, he could, of course, but ... he wouldn't. So arguably such taboos could be as powerful as laws.

Although technically there maybe wasn't anything restricting them in either case, customs, social expectations and so on did. It's just a question whether this "counts" or not. It's definitely not a formalized situation in the sense of written law.


Also, that's just those monarchies. Various tribal people surely had a variety of tribal laws and customs.

 

[Abdul Goatherd]

Western historians have often claimed that the "rule of law" is a unique development of Western civilization, and does not exist in other civilizations.

Not sure who these "Western historians" are. But sounds like they're full of crap.

 

[DarthJF]

I don't remember any particular Chinese era being noted for its lawyers and trials.

The were eras where China was a hub for international trade and had huge communities of traders and artisans from all around the world in its big cities (Tang dynasty f.ex.)... Those periods ought to have had decently developed law systems because how else do you manage all those traders and foreigners otherwise. But AFAIK that wasn't really something they wrote about in the history books.

They had trials but no lawyers. The judge overseeing the case would carry out an investigation and declare ruling based on his findings. There are actually some detective style popular stories about judges solving crimes in ancient China.

 

[Fornadan]

"Legally" speaking the Emperor could do whatever he liked as the ultimate judge and lawgiver in the state. In practice he was of course constrained by political realities, if he wanted to remain on the throne.

 

[mork77]

https://en.wikipedia.org/wiki/Traditional_Chinese_law

There was a very well developed law system in China.

regarding lawyers ( see DarthJF)

To Westerners, perhaps the most striking feature of the traditional Chinese criminal procedure is that it was an inquisitorial system where the judge, usually the district magistrate, conducts a public investigation of a crime, rather than an adversarial system where the judge decides between attorneys representing the prosecution and defense. "The Chinese traditionally despised the role of advocate and saw such people as parasites who attempted to profit from the difficulties of others. The magistrate saw himself as someone seeking the truth, not a partisan for either side."[

regarding the emperor and variety of law

Traditional Chinese law can be divided into the "official" law and "unofficial law". The "official law" emanates from the authority of the emperor. The doctrine of separation of powers was unknown in China until the 20th century. In particular, judicial and administrative functions were performed by magistrates rather than by separate persons. The emperor delegated many of his administrative and judicial powers to his officials while reserving for himself the legislative function.

Official law may itself be divided into two main components: penal law and administrative law. The former prescribed punishments for certain behaviour, and the latter defined the duties of the officials.

By contrast, "unofficial" law was the customary law of the people, rules that developed in localities or in merchant guilds for the handling of matters of common concern. Neither of the standard words for law - fa (法) or lü (律) - was ever applied to rules of this kind.



So, the division of powers wasn`t known in China Before 1911. There was no constitution as such in China Before 1911. There were no Judges but Magistrates. The Emperor was, at least in theory, the absolute ruler, like the rulers in Europe before 1789.

 

[Tufto]

Better question: why are you taking anything Fukuyama says about history seriously? Surely you can find someone with more credibility to use as an example.

I don't think any serious historian of China has taken the idea of "oriental despotism" seriously since the 70s.

 

[JodelDiplom]

https://en.wikipedia.org/wiki/Traditional_Chinese_law

There was a very well developed law system in China.

regarding lawyers ( see DarthJF)

To Westerners, perhaps the most striking feature of the traditional Chinese criminal procedure is that it was an inquisitorial system where the judge, usually the district magistrate, conducts a public investigation of a crime, rather than an adversarial system where the judge decides between attorneys representing the prosecution and defense. "The Chinese traditionally despised the role of advocate and saw such people as parasites who attempted to profit from the difficulties of others. The magistrate saw himself as someone seeking the truth, not a partisan for either side."[

regarding the emperor and variety of law

Traditional Chinese law can be divided into the "official" law and "unofficial law". The "official law" emanates from the authority of the emperor. The doctrine of separation of powers was unknown in China until the 20th century. In particular, judicial and administrative functions were performed by magistrates rather than by separate persons. The emperor delegated many of his administrative and judicial powers to his officials while reserving for himself the legislative function.

Official law may itself be divided into two main components: penal law and administrative law. The former prescribed punishments for certain behaviour, and the latter defined the duties of the officials.

By contrast, "unofficial" law was the customary law of the people, rules that developed in localities or in merchant guilds for the handling of matters of common concern. Neither of the standard words for law - fa (法) or lü (律) - was ever applied to rules of this kind.



So, the division of powers wasn`t known in China Before 1911. There was no constitution as such in China Before 1911. There were no Judges but Magistrates. The Emperor was, at least in theory, the absolute ruler, like the rulers in Europe before 1789.

That describes a system with more or less complete absence of rule of law as a westerner would understand it. Doesn't it?

 

[SorelusImperion]

That describes a system with more or less complete absence of rule of law as a westerner would understand it. Doesn't it?

No, it describes a systme in which laws originate from different sources than a 20th/21st century westerner would assume.

 

[JodelDiplom]

No, it describes a systme in which laws originate from different sources than a 20th/21st century westerner would assume.

It is a system with laws and a formalized legal process, yes. But does the law rule? Is the law above those speaking the law?

There seems to be no appeals process aside from the prescribed process of submitting adjudication to higher authority by a formal and regulated process. The sovereign is above the law. The judges are above the law. Yes there is law - quite good law by medieval and even early modern standards. (The Jesuits and other early Europeans in China during the 16th to 18th centuries certainly thought that China was a model of good governance.) But please consider that our idea of rule of law as we Westerners understand it is more or less a concept of the enlightenment period. In the British case perhaps a bit older. It is a modern idea and in my view the traditional Chinese system of law as described above does not fit at all under that idea.

Consider also that even in 20th century times there was / still is the difference between rule of law (law being above those in power, law as the ) and rule by law (law as an instrument of those in power). In my view the Chinese system is merely a very well developed variant of pre-modern absolutist "rule by law" since it lacks an appeals process, does not apply to the sovereign or his family, and excludes anyone who is not part of the administration from the process of inquiry, prosecution and verdict passing. (I.e. there is no role for lawyers, defenders or jurors.) It is a tool of the government not a restraint on government.

If you disagree, please explain why you think the traditional Chinese system of law deserves being called a variant of "rule by law" as opposed to merely "rule by law".

 

[DarthJF]

Consider also that even in 20th century times there was / still is the difference between rule of law (law being above those in power, law as the ) and rule by law (law as an instrument of those in power).

This is an important distinction to make. China did have a well developed and meticulously impelemented legal system, but there was no "rule of law" in the modern sense, where power of the sovereign and the state is limited by the laws they have decreed.

There were restraints on how the Emperors wielded their power, so the stereotypical image of all powerful oriental despots isn't accurate, but these restraints came from tradition and customs, rather than being legal restrictions that the Emperor was bound by.

 

[stevieji]

But please consider that our idea of rule of law as we Westerners understand it is more or less a concept of the enlightenment period. In the British case perhaps a bit older. It is a modern idea and in my view the traditional Chinese system of law as described above does not fit at all under that idea.

This. OP's idea of 'rule of law' is faulty - it has nothing to do with the citizen's right (or abilty) to resist the state. This seems like a peculiarly American view.

 

[civfanatic]

This. OP's idea of 'rule of law' is faulty - it has nothing to do with the citizen's right (or abilty) to resist the state. This seems like a peculiarly American view.

What is your idea of "rule of law," and what are you basing it on?

Also, I did not say that the rule of law is equivalent to the citizen's right or ability to resist the state. Did you read the OP?

 

[icedt729]

There is no real rule of law without, at minimum, separation of powers and strong transparency and accountability. So in that sense, nowhere had it in a modern sense until a few centuries ago and most of China has never had it (exceptions for Hong Kong and Taiwan).

 

[JodelDiplom]

There is no real rule of law without, at minimum, separation of powers and strong transparency and accountability. So in that sense, nowhere had it in a modern sense until a few centuries ago and most of China has never had it (exceptions for Hong Kong and Taiwan).

To be fair on the Chinese, the system as described above is about as fair as you can make it within an authoritarian imperial system. Requiring judgments to be passed to higher authorities depending on how severe the crime is, including passing judgment on capital punishment to the imperial court itself, seems like a decent method to maintain uniform standards. How well they lived up to it under the various dynasties is of course another question. But that goes for any law system of course.

Does anyone have sources in how the reformers of the Xinhai and May 5th eras viewed the question of legal system in China? Surely some of them must have passed some sort of judgment on china's traditional law system.

 

[stevieji]

What is your idea of "rule of law," and what are you basing it on?

Also, I did not say that the rule of law is equivalent to the citizen's right or ability to resist the state. Did you read the OP?

Yes I read it - I was referring to the text you posted as an image - and in particular the portion you highlighted, which states ...

"...the strong Chinese state has never been constrained by a rule of law that limited the whims of its rulers."

On reflection, this isn't a definition of the rule of law - more a description of the effect of its absence.

My understanding of the concept is pretty much as defined in WIkipedia ...

"The rule of law is the principle that law should govern a nation, as opposed to being governed by decisions of individual government officials. ... Rule of law implies that every person is subject to the law, including people who are lawmakers, law enforcement officials, and judges."