The Internal Morality of Chinese Legalism

47 Pages Posted: 16 Jul 2005

Multiple version iconThere are 2 versions of this paper

Date Written: June 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 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.

Keywords: Ethics/Political Philosophy, Law and Legal Institutions

Suggested Citation

Winston, Kenneth, The Internal Morality of Chinese Legalism (June 2005). KSG Working Paper No. RWP05-041. Available at SSRN: https://ssrn.com/abstract=757354 or http://dx.doi.org/10.2139/ssrn.757354

Kenneth Winston (Contact Author)

Harvard Kennedy School ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

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