Abstract

http://ssrn.com/abstract=952630
 
 

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The Internal Morality of Chinese Legalism


Kenneth Winston


Faculty Chair, Singapore Program


Singapore Journal of Legal Studies, 2005

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.

Number of Pages in PDF File: 35

Accepted Paper Series


Date posted: December 21, 2006  

Suggested Citation

Winston, Kenneth, The Internal Morality of Chinese Legalism. Singapore Journal of Legal Studies, 2005. Available at SSRN: http://ssrn.com/abstract=952630

Contact Information

Kenneth Winston (Contact Author)
Faculty Chair, Singapore Program ( email )
79 John F. Kennedy Street
Cambridge, MA 02138
United States
617-496-4196 (Phone)
617-496-2850 (Fax)
Feedback to SSRN


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