China Legalism
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
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