Rule of Law Ideals in Early China

Traditional Chinese legal culture has generally been characterized by its deeply entrenched predilection for authoritarian, one-man rule over the more impersonal rule of law. But new materials on law from Chinese archaeological sites have prompted a reassessment of the role of law in the late classical period – a discussion that has taken on particular meaning in the present as Chinese reformers and scholars scrutinize their traditions in light of the urgent need to reform contemporary legal institutions. This article argues that certain key concepts generally considered fundamental to the ideal of a Rule of Law can be detected in writings produced in the era that witnessed the founding of the first centralized state in China in 221 B.C., its disintegration less than two decades later, and the gradual consolida- tion of the empire under the Han dynasty after 206 B.C. As I hope to demonstrate, the legal theory that emerged in this period of state- building supported an authoritarian government, but it did not necessarily sanction an arbitrary, lawless abuse of power. I am not arguing that true proponents of the Rule of Law, as it is articulated in contemporary American theory, existed in early China, or that institutions that supported the ideal of the Rule of Law emerged at that time, since these are relatively recent developments in the West itself. But I do suggest that evidence from a range of third and second century eclectic texts demonstrates that the differences that separate classical Chinese and Western political theory are to be found not so much in the relative weight that each tradition assigned to law and standardized procedures as in their assumptions about the limits of participation in legal decisions.