ABSTRACT
A. Defining the Rule of Law .................................................................................. I 02 B. The Existing Paradigm for Chinese Legal History ........................................... I 03 C. Toward a New Theory of the Rule of Law in Chinese History ......................... 104
II. ORIGINS OF LEGAL PRINCIPLES AND PRACTICES IN THE ZHOU ............................... 105
IV. THE QIN CENTRALIZATION ................................................................................... 108
V. THEHANPOPULIST0RDER .................................................................................... 109
VI. WEI, JIN, AND NORTH AND SOUTH DYNASTIES: THE PERSISTENCE OF THE IDEAL AND SOME OF THE REALITY OF THE RULE OF LAW IN A PERIOD OF DISUNION AND DISORDER ................................................................................................................... 113
VII. SUI REUNIFICATION ............................................................................................. 115
VIII. THE TANG: AN ELITIST REFORMIST ORDER ....................................................... 116
IX. FIVE DYNASTIES, TEN KINGDOMS, LIAO, XIXIA, SONG, AND JIN: ANOTHER PERIOD OF DISORDER ACCOMPANIED BY CONCERN FOR THE RULE OF LAW ........................... 120
X. THE YUAN: ANOTHER AUTHORITARIAN CENTRALIZING POLITY ........................... 124
XI. THE MING: ANOTHER POPULIST ORDER ............................................................... 126
XII. THE QING: ANOTHER ELITIST ORDER .................................................................. 130
XIII. THE REPUBLIC: DISUNION AND ANOTHER CENTRALIZING STATE ...................... 140
XIV. CONCLUSIONS .................................................................................................... 145
I. INTRODUCTION
While Chinese and other scholars define "the rule of law" (fazhi) in many different ways, they generally agree that it should be distinguished from "rule by men" (renzhi), in which personalities matter most, 1 and from "rule by
law" (jazhi), in which politics take priority.' Stated more positively, observers in both China and elsewhere and in both the past and the present tend to agree that the rule of law requires at least two elements. First, the ruler must be subject to, or at least not above, the law; and second, the law must be applied equally, or at least equitably, to all members of society.' Other criteria are possible, of course, including: transcendent values, natural law, rationality, publicity, fixity, consistency, universality, constitutionality, separation of powers, an independent judiciary, professional lawyers, human rights, and broad political participation. 4 In fact, we shall encounter many of these characteristics in various legal regimes in China. But these features, we submit, are or at least should be regarded as secondary to the above two core elements, if only because they are subject to wider variation over space and greater change over time. Few, if any, historical polities have fully and consistently exhibited the core elements of the rule of law, let alone manifested the entire panoply of ancillary features often associated with it.'
