12 August 2005

Lon Fuller and Han Feizi: The Internal Morality of Chinese Legalism

Kenneth Winston, of Harvard's Kennedy School, has published "The Internal Morality of Chinese Legalism" on SSRN (June 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 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.

The perspectives of "internal morality" and (more broadly)" formal conceptions of the rule of law" seem to provide great opportunities for comparative study of legal systems and cultures. In that respect, it's especially nice to see the concepts discussed in the context of such a hugely important non-Western system.

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