Were Chinese rulers above the law? Toward a theory of the rule of law in China from early times to 1949 CE

Qiang Fang, Roger Des Forges

    Research output: Contribution to journalReview articlepeer-review

    11 Scopus citations

    Abstract

    In recent years, there has been a growing awareness both in China and elsewhere of the importance of law in Chinese efforts to bring order - if not justice - to society and the world. Even the most admiring students of Chinese legal history, however, have rejected the idea that the Chinese ever succeeded in establishing the rule of law - as opposed to rule by law -including, especially and critically, the subordination of the ruler to legal principles and practices. This article uses a fresh conceptualization of the entire Chinese historical record from earliest known times to the mid-twentieth century CE to argue that, according to a commonly agreed upon definition of "the rule of law," we can discern several different kinds of regimes of the rule of law in China's past that included both the ideal and, in many cases, the reality of holding the ruler accountable to the law. The implications of this suggested shift in the paradigm of Chinese legal history for Chinese politics in the period since 1950 CE will be addressed in another venue.

    Original languageEnglish (US)
    Pages (from-to)101-146
    Number of pages46
    JournalStanford Journal of International Law
    Volume44
    Issue number1
    StatePublished - Dec 2008

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