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

[icedt729]

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.

Oh I agree that China had one of the better and more sophisticated legal systems, I just wanted to point out that "rule of law" is a concept that emerged not that long ago under very specific circumstances, with the implication being that it's not a good yardstick to measure a civilization by.

 

[Eusebio]

Haven't any of you read your Hobbes? Or Carl Schmitt? "Rule of law" above the sovereign is a fiction. The sovereign at all times reserves the right to dispense with legal norms if he sees it fit to do so. Indeed, since the sovereign enforces the law this is the only way a legal system could possibly operate.

 

[civfanatic]

Haven't any of you read your Hobbes? Or Carl Schmitt? "Rule of law" above the sovereign is a fiction. The sovereign at all times reserves the right to dispense with legal norms if he sees it fit to do so. Indeed, since the sovereign enforces the law this is the only way a legal system could possibly operate.

How does the sovereign's enforcement of legislation require that he possess the power to dispense with the constitutional law?

 

[Abdul Goatherd]

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.

You have your origins wrong.

Islamic states have had "rule of law" from at least the 9th C. Indeed, they are defined as nomocracies, and the closest there is to "rule of law" in a meaningful sense. So, for starters, claiming it does not exist outside the West is utter bogus.

The only Western states that have been able to emulate a nomocracy were perhaps Calvinist Geneva, Knoxian Scotland and Puritan Massachusetts. Which should give you an inkling where this idea comes from - the Reformation, not the Enlightenment.

The law only rises above the monarch when it doesn't come from the monarch, i.e. the law must come from God, and hopefully set down in sacred scripture and/or derived by strict rules of jurisprudence.

That is not the case in most "Western" countries - the law comes from monarchs, not God. Civil law is nothing but a collection of imperial or royal edicts. Even canon law is nothing but papal edicts. Even unto this day, British statutes have no validity unless they are promulgated by the Queen. The monarch is the source of law.

And being the monarch's law, rather than God's, the monarch can change it whenever he wants - with or without the advice of an assembly. The only thing of interest is the procedural detail that what is agreed in session is treated as a contract between monarch and assembly, and cannot be modified, suspended or repealed outside of session. And that restriction is a Medieval concept, not an "Enlightenment" one.

So don't credit the "Enlightenment" for this. "Enlightened despotism" was a thing, both in the monarchical and democratic extremes.

BTW, Enlightenment thinkers loved China, and held its system up as the model for Western states to follow.

 

[Avernite]

You have your origins wrong.

Islamic states have had "rule of law" from at least the 9th C. Indeed, they are defined as nomocracies, and the closest there is to "rule of law" in a meaningful sense. So, for starters, claiming it does not exist outside the West is utter bogus.

The only Western states that have been able to emulate a nomocracy were perhaps Calvinist Geneva, Knoxian Scotland and Puritan Massachusetts. Which should give you an inkling where this idea comes from - the Reformation, not the Enlightenment.

The law only rises above the monarch when it doesn't come from the monarch, i.e. the law must come from God, and hopefully set down in sacred scripture and/or derived by strict rules of jurisprudence.

That is not the case in most "Western" countries - the law comes from monarchs, not God. Civil law is nothing but a collection of imperial or royal edicts. Even canon law is nothing but papal edicts. Even unto this day, British statutes have no validity unless they are promulgated by the Queen. The monarch is the source of law.

And being the monarch's law, rather than God's, the monarch can change it whenever he wants - with or without the advice of an assembly. The only thing of interest is the procedural detail that what is agreed in session is treated as a contract between monarch and assembly, and cannot be modified, suspended or repealed outside of session. And that restriction is a Medieval concept, not an "Enlightenment" one.

So don't credit the "Enlightenment" for this. "Enlightened despotism" was a thing, both in the monarchical and democratic extremes.

BTW, Enlightenment thinkers loved China, and held its system up as the model for Western states to follow.

I feel you may be underselling the religious source of law in medieval/renaissance Europe (or I am underselling how you put it in the global story?). Saint Augustine argued for the concept of Just War, with Saint Thomas Aquinas putting it on firmer footing. This is a very clear expression of the idea that a sovereign decision (going to war) is strictly limited by, essentially, Divine law - and Augustine can't have borrowed it from the Islamic principle yet.

Going back further, it is also a core message (but apparently not active practice) of the Old Testament: when rulers rule according to the rule of (God's) law, they and Israel prosper; when the rulers flaunt the rule of (God's) law, Israel suffers and prophets loudly declare such is the case.

I notice that there's a vast gray area between the message that rule of law ought to be, and that rule of law is, and so maybe that's what you're primarily talking about, but I don't know enough about the Chinese case to know if they also had the message (ought to be) while not usually having the fact (which is how I would interpret most history of post-Roman Europe - everyone knew there should be rules rulers respect, but only after '1789' did it become persistent active practice in many countries, though there were long-since areas of operation where 'traditional' rules could not realistically be superceded - and the presence of such helped herd trade to some countries and not others).

 

[Abdul Goatherd]

I feel you may be underselling the religious source of law in medieval/renaissance Europe (or I am underselling how you put it in the global story?). Saint Augustine argued for the concept of Just War, with Saint Thomas Aquinas putting it on firmer footing. This is a very clear expression of the idea that a sovereign decision (going to war) is strictly limited by, essentially, Divine law - and Augustine can't have borrowed it from the Islamic principle yet.

Going back further, it is also a core message (but apparently not active practice) of the Old Testament: when rulers rule according to the rule of (God's) law, they and Israel prosper; when the rulers flaunt the rule of (God's) law, Israel suffers and prophets loudly declare such is the case.

No, I am actually talking about actual laws of man, i.e. implemented by magistrates and judges in human courts, not abstract natural laws or concepts of justice. "Just War" is fine, but you're not going to get a judge to issue an arrest warrant on that basis. Judges in Western countries depend on the crown and implement the laws of the crown, not the laws of God.

Islamic law - Shari'a - are actual laws, implemented here on earth. Human judges issue judgments, arrest warrants and sentences based strictly on the Sacred Law, which comes out of the Qur'an and the Sunnah, or are derived from them by very strict rules of jurisprudence. Just like laws in Puritan states were taken straight out of the Bible. Legislation does not come from rulers, kings or assemblies, sultans or shuras. God and only God legislates. Or as Puritans liked to put it, the only king is King Jesus. The monarch cannot make laws, but is bound to uphold to the Sacred Law and only that. And should he interfere or "innovate" (a grievous accusation) and propose new laws, he is instantly deposed. The law of the land is entirely in the hand of jurists and religious scholars who interpret the Sacred Law, and nothing is in the hand of kings or parliaments.

That's "rule of law" in its purest sense. Law is entirely independent and above rulers.

Yes, that is consonant with the organization of the Ancient Israelites - which should be no surprise, as the Hebrew Bible is where both Muslims and Puritans take their cues for social, political and juridical organization, as well as their laws. But you don't need to wait for Elijah to complain and hope the king has a change a heart. In nomocratic states, jurists, on their own, can declare a king deposed. And pretty easily - just drop his name from Friday's prayers.

Of course, it helps that the Sacred Law is written. And while Jews, Muslims and Christians have written holy scripture, not all others do, and so are at a distinct disadvantage. Most Pagan states did not have written scriptures and had to construct a body. Which is why Roman law is built on the edicts of emperors, and Germanic law on the edicts of kings. And "Western law" emanates from that, from royal edicts, not from the Hebrew Bible. You cannot instantly invalidate a parliamentary act by citing chapter and verse from Deutoronomy, or pass a sentence based on it.

The Chinese, of course, have scripture. As do Hindus. Even though Western historians for a long time did not realize that, and so came up with "oriental despotism" nonsense to explain what was going on. Heck, some historians even extended that to Islamic rulers, the most nomocratic of nomocracies, proof positive they had not the faintest idea of what they're talking about.

I notice that there's a vast gray area between the message that rule of law ought to be, and that rule of law is, and so maybe that's what you're primarily talking about, but I don't know enough about the Chinese case to know if they also had the message (ought to be) while not usually having the fact (which is how I would interpret most history of post-Roman Europe - everyone knew there should be rules rulers respect, but only after '1789' did it become persistent active practice in many countries, though there were long-since areas of operation where 'traditional' rules could not realistically be superceded - and the presence of such helped herd trade to some countries and not others).

The practice of 1789 - at least its immediate aftermath - was to let the "Will of the People" be the new despot (Article 6 of the Declaration of the Rights of Man). The arbitrariness of royal edicts morphed into arbitrary acts of the assembly or plebiscites. The rule of law was no stronger after than it was before.

It took a much longer process - certainly in Continental Europe - to get to what you might recognize as a relatively independent judiciary - that is where a judge can interpret and decide the law. And even so, not without some significant slips and backsliding.

It was not Enlightenment thinkers that came up with the concept of an "independent judiciary". It was a concept associated with religious Puritans. Indeed, you would be hard-pressed to find a (non-puritan) Enlightenment thinker in the 18th C. who ever dreamed of it. It emerged only through the 19th Century. And was quite by accident.

I will grant one thing to 1789 - the constitutional endowment of legislative power to parliament, the very statement that "law is the will of the people", did have an inadvertent effect in this process. Because for all revolutionary joys, everyone in Western Europe, even through the 19th C., agreed with the Medieval notion that justice was the exclusive prerogative of the the king. The judiciary was part of the crown, justice was "the king's justice", the courts belonged to the crown and not to "the people", judges were royal appointees, not appointees of parliament nor elected.

This post-1789 assumption - parliament makes the laws, king makes the justice - creates a gap between legislation and judiciary functions, a separation no Enlightenment thinker really thought about. And it is through this little gap that the modern independent judiciary slipped through. Because now the king's judge - a judge that belongs to crown not parliament - gets to interpret and decide the law on his own, independently of the lawmakers.

It is here where the old Puritan notion is revived - the kig does not legislate, law "comes from elsewhere" - not God exactly, but still from somewhere else. And so the judge has a new interpretative function at the center of his duties ("The law is written. What does it mean?"), much like any Islamic qadi of old.

So all that we associate with "rule of law" today (e.g. judicial review, etc.) comes out of this accident. It is old hat for Puritans, but new hat for everyone else. It was legal philosophers in the course of the 19th C. (not 18th C.) that had to come to terms with this strange new phenomena of an independent judge, and revising - philosophically and practically - the rules of jurisprudence to accommodate it.

 

[Tufto]

No, I am actually talking about actual laws of man, i.e. implemented by magistrates and judges in human courts, not abstract natural laws or concepts of justice. "Just War" is fine, but you're not going to get a judge to issue an arrest warrant on that basis. Judges in Western countries depend on the crown and implement the laws of the crown, not the laws of God.

Islamic law - Shari'a - are actual laws, implemented here on earth. Human judges issue judgments, arrest warrants and sentences based strictly on the Sacred Law, which comes out of the Qur'an and the Sunnah, or are derived from them by very strict rules of jurisprudence. Just like laws in Puritan states were taken straight out of the Bible. Legislation does not come from rulers, kings or assemblies, sultans or shuras. God and only God legislates. Or as Puritans liked to put it, the only king is King Jesus. The monarch cannot make laws, but is bound to uphold to the Sacred Law and only that. And should he interfere or "innovate" (a grievous accusation) and propose new laws, he is instantly deposed. The law of the land is entirely in the hand of jurists and religious scholars who interpret the Sacred Law, and nothing is in the hand of kings or parliaments.

That's "rule of law" in its purest sense. Law is entirely independent and above rulers.

Yes, that is consonant with the organization of the Ancient Israelites - which should be no surprise, as the Hebrew Bible is where both Muslims and Puritans take their cues for social, political and juridical organization, as well as their laws. But you don't need to wait for Elijah to complain and hope the king has a change a heart. In nomocratic states, jurists, on their own, can declare a king deposed. And pretty easily - just drop his name from Friday's prayers.

Of course, it helps that the Sacred Law is written. And while Jews, Muslims and Christians have written holy scripture, not all others do, and so are at a distinct disadvantage. Most Pagan states did not have written scriptures and had to construct a body. Which is why Roman law is built on the edicts of emperors, and Germanic law on the edicts of kings. And "Western law" emanates from that, from royal edicts, not from the Hebrew Bible. You cannot instantly invalidate a parliamentary act by citing chapter and verse from Deutoronomy, or pass a sentence based on it.

The Chinese, of course, have scripture. As do Hindus. Even though Western historians for a long time did not realize that, and so came up with "oriental despotism" nonsense to explain what was going on. Heck, some historians even extended that to Islamic rulers, the most nomocratic of nomocracies, proof positive they had not the faintest idea of what they're talking about.



The practice of 1789 - at least its immediate aftermath - was to let the "Will of the People" be the new despot (Article 6 of the Declaration of the Rights of Man). The arbitrariness of royal edicts morphed into arbitrary acts of the assembly or plebiscites. The rule of law was no stronger after than it was before.

It took a much longer process - certainly in Continental Europe - to get to what you might recognize as a relatively independent judiciary - that is where a judge can interpret and decide the law. And even so, not without some significant slips and backsliding.

It was not Enlightenment thinkers that came up with the concept of an "independent judiciary". It was a concept associated with religious Puritans. Indeed, you would be hard-pressed to find a (non-puritan) Enlightenment thinker in the 18th C. who ever dreamed of it. It emerged only through the 19th Century. And was quite by accident.

I will grant one thing to 1789 - the constitutional endowment of legislative power to parliament, the very statement that "law is the will of the people", did have an inadvertent effect in this process. Because for all revolutionary joys, everyone in Western Europe, even through the 19th C., agreed with the Medieval notion that justice was the exclusive prerogative of the the king. The judiciary was part of the crown, justice was "the king's justice", the courts belonged to the crown and not to "the people", judges were royal appointees, not appointees of parliament nor elected.

This post-1789 assumption - parliament makes the laws, king makes the justice - creates a gap between legislation and judiciary functions, a separation no Enlightenment thinker really thought about. And it is through this little gap that the modern independent judiciary slipped through. Because now the king's judge - a judge that belongs to crown not parliament - gets to interpret and decide the law on his own, independently of the lawmakers.

It is here where the old Puritan notion is revived - the kig does not legislate, law "comes from elsewhere" - not God exactly, but still from somewhere else. And so the judge has a new interpretative function at the center of his duties ("The law is written. What does it mean?"), much like any Islamic qadi of old.

So all that we associate with "rule of law" today (e.g. judicial review, etc.) comes out of this accident. It is old hat for Puritans, but new hat for everyone else. It was legal philosophers in the course of the 19th C. (not 18th C.) that had to come to terms with this strange new phenomena of an independent judge, and revising - philosophically and practically - the rules of jurisprudence to accommodate it.

I agree with basically everything you've said, but I don't think characterising Islamic realms as solely shari'ia-based in terms of law is entirely correct, at least in Iran- shari'a was largely confined to civil law after the 'Abbasids (iirc), with customary law predominating and, in later times, justice deriving from the Shah. I agree broadly with your point, but there were still alternate and competing systems within these premodern states and societies, without the kind of standardisation you see later on.

 

[Eusebio]

How does the sovereign's enforcement of legislation require that he possess the power to dispense with the constitutional law?

Because one cannot legislate for every possibility: there will inevitably arise crises or (states of) emergencies where the ordinary operation of the law has to be suspended by the sovereign for the state to survive. See: Lincoln's response to ex parte Merryman.

"Rule of law" does not exist. What exists is the sovereign agreeing to act within the limits of law for the time being. The law is not above him in any sense.

 

[gagenater]

The whole idea of ‘oriental despotism’ didn’t originate with any description or reference to China anyway. The place and time that is the archetype for Oriental Despotism as a type of state organization is the Persian Empire of Darius the Great. Both the ancient Greeks and the ancient Hebrews who provided a lot of the written accounts of that period for the West stress repeatedly the horrible centralized powers of the Persian Empire when compared to their p’roper and correctly organized’ societies.

 

[Avernite]

The whole idea of ‘oriental despotism’ didn’t originate with any description or reference to China anyway. The place and time that is the archetype for Oriental Despotism as a type of state organization is the Persian Empire of Darius the Great. Both the ancient Greeks and the ancient Hebrews who provided a lot of the written accounts of that period for the West stress repeatedly the horrible centralized powers of the Persian Empire when compared to their p’roper and correctly organized’ societies.

I thought the Hebrews were kinda Persophiles? I mean, in general at least.

 

[gagenater]

I thought the Hebrews were kinda Persophiles? I mean, in general at least.

They waffled - they certainly preferred the Persians to the Egyptians, Babylonians or Hittites but they weren’t completely buddy buddy with them either. In particular many notes are made of the autocratic and dictatorial nature of the Persian emperor. He used that power to advance the Hebrews cause several times, but the Hebrews were very wary of allowing such a type of figure from dominating their own politics.

 

[Avernite]

They waffled - they certainly preferred the Persians to the Egyptians, Babylonians or Hittites but they weren’t completely buddy buddy with them either. In particular many notes are made of the autocratic and dictatorial nature of the Persian emperor. He used that power to advance the Hebrews cause several times, but the Hebrews were very wary of allowing such a type of figure from dominating their own politics.

Well, sure, but compared to nearly unrelenting hatred of the Greeks... it just feels odd to put those two on the same level

 

[gagenater]

Well, sure, but compared to nearly unrelenting hatred of the Greeks... it just feels odd to put those two on the same level

Sure but the Greeks are in the New Testament era. Persians are old school OT.

 

[Avernite]

Sure but the Greeks are in the New Testament era. Persians are old school OT.

Sorry, meant 'comparing the so-so opinion of the Hebrews of the Persians, compared to the absolute hatred of the Greeks of the Persians'.

 

[Avernite]

Sorry, meant 'comparing the so-so opinion of the Hebrews of the Persians, compared to the absolute hatred of the Greeks of the Persians'.

Seems this bears repeating.

 

[Andre Bolkonsky]

Sure but the Greeks are in the New Testament era. Persians are old school OT.

Needs clarification:

Plenty of Greeks in the Old Testament: Phillistines were the 'Sea People', aka, the Mycenean Greeks. The defeat of their heavy infantry at the hands of Hebrew light infantry operating in the broken terrain of Israel brings about the Golden Age of Kings David and Solomon. And Alexander walked through Palestine on his way to Siwah, but you can believe which alternate version of the event you choose.

The Persians restored the Hebrews from the Babylonian Captivity; Cyrus the Great restores them to Jerusalem and the Persian State contributes heavily to the buidling of the Second Temple of Jerusalem; so of course the Hebrews think kindly of them.

By the time of the New Testament, Caesar Augustus rules divinely as 'Pharoah', and orders a census that sends Mary and Joseph to the City of David. At this time, Greece is but a province of Rome, and Greek is the language of the cultured elite. Fortunately, Saul of Tarsus is the Rosetta Stone between Greek, the Torah, the Tanakh, and the Talmud. And so an understanding of Greek has long been instrumental to understanding the story of Jesus of Nazareth.

Back to China . . .

 

[gagenater]

Needs clarification:

Plenty of Greeks in the Old Testament: Phillistines were the 'Sea People', aka, the Mycenean Greeks. The defeat of their heavy infantry at the hands of Hebrew light infantry operating in the broken terrain of Israel brings about the Golden Age of Kings David and Solomon. And Alexander walked through Palestine on his way to Siwah, but you can believe which alternate version of the event you choose.

The Persians restored the Hebrews from the Babylonian Captivity; Cyrus the Great restores them to Jerusalem and the Persian State contributes heavily to the buidling of the Second Temple of Jerusalem; so of course the Hebrews think kindly of them.

By the time of the New Testament, Caesar Augustus rules divinely as 'Pharoah', and orders a census that sends Mary and Joseph to the City of David. At this time, Greece is but a province of Rome, and Greek is the language of the cultured elite. Fortunately, Saul of Tarsus is the Rosetta Stone between Greek, the Torah, the Tanakh, and the Talmud. And so an understanding of Greek has long been instrumental to understanding the story of Jesus of Nazareth.

Back to China . . .

Sure if you accept that the sea people’s were Greeks of some sort (they might be)

 

[Abdul Goatherd]

Phillistines were the 'Sea People', aka, the Mycenean Greeks.

I thought it was proven they were almost certainly Canadian?

 

[Andre Bolkonsky]

I thought it was proven they were almost certainly Canadian?

I truly enjoyed that, and shared it with a priest who enjoys quoting 'Life of Brian' periodically in his sermons to see if I'm paying attention.

 

[Careful Plum]

That's "rule of law" in its purest sense. Law is entirely independent and above rulers.

I'm sorry, but while what you're sayng is very interesting and probably factually true, it doesn't describe rule of law at all. Rule of law doesn't say anything about how new laws are created and by whom, but that the process by which this is dobe must be described in the body of law itself, implying that this process can only be altered by what the law describes and that all state activities must be backed by law.

Sure, the creation of the basis for this process is not itself an example of rule of law. But neither is the creation of law by a divine entity! The crucial part is thatrule of law doesn't say anything about how law is madw, but it requires the process to be defined in a specific place; the law itself.

Just to be clear: I'm not disputing about where this idea originated (although I'd say it was connectef to the Enlightenment, which was itself connected to the Reformation).