Friday, December 22, 2006
Posted by Mary L. Dudziak
Kenneth Winston, Kennedy School, Harvard, has just posted an article on SSRN: The Internal Morality of Chinese Legalism. As a rule, I'm not blogging about older pieces recently appearing on SSRN, but I'll bet most readers missed this one when it was published in the Singapore Journal of Legal Studies in 2005. Here's the 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 it 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 recognizes. It suggests that, by examining the text of the Han Feizi through the lens provided by American legal theorist Lon Fuller, we can observe 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.