Ten legal traditions(I): realistic, practical and pragmatic

(english.legalinfo.gov.cn) Updated : 2019-01-09

Ten Legal Traditions (V): Rule of Law

When the history wheeled to the Spring and Autumn Period (770-476BC), iron-made tools were used to produce which increased the productivity and made the reclamation of private land possible. Besides the reclaimed land belonged to the individuals which destroyed the land system of the beginning of the Zhou Dynasty-“all the land belongs to the Emperor” [The Book of Songs. Minor Odes of the Kingdom. Gu Feng Zhi Shi. Northern mountain](Shi Jing•Xiao Ya•Gu Feng Zhi Shi•Bei Shan). It changed the relations of production greatly. These changes also influenced the superstructures-the superiority of the Emperor of Zhou Dynasty decayed. Simultaneously, the power of every state was expanding. In addition, there were annexing wars among the state. Under such a condition, the original ritual music was collapsed and lost the power of social control(Li Beng Yue Huai), which became useless in the society. In such a chaotic era, what exactly could be used to rule the country, the question of which many politicians and philosophers pondered about.

Then the representative of Confucianism Confucian (see picture) put it “with the self-control and the revival of rituals, the world would go to benevolence” [Analects of Confucius Yan Yuan (Lun Yu Yan Yuan): “Yan Yuan asked about benevolence. Confucian replied that with the self-control and the revival of rituals we can reach to benevolence. Once we do that, the world would go to benevolence.”] intending to save the world. However, in such a contending era among powers, there was no possibility for the self-control and revival of rituals during which time the legalism became thriving.

The legalism advocated the rule of law. The emperors used laws as a tool to govern the country and people and all the affairs were tackled with by law.

The early representative of legalism Guan Zhong put up forward the concept of rule of law about 7 century BC. He thought that by rule of law the power would be centralized easily which is to say “there must be a uniform law and politics”. It made the orders and policies uniform which could be reached by rule of law so as to control the crimes of the society by centralizing powers and unifying the policies.

The legalists took power in some of the states and promoted the legalism. In these states, legalism was used to guide by law, to consolidate the improvements of economic and political reforms, to stabilize the society and to combat opposition groups who was blocking the reform.

Besides, legalism advocated all the people are bonded by law equally no matter the lords or literati or the common people, which was justified according to law-no matter how close or noble they are, they are all treated equally by law.

At the same time the Legalists advocated to change the heritage system of highly ranked officials of early Zhou Dynasty, which was the "Shi Qing system." [Shi Qing and Shi Lu (Shi Qing Shi LuZhi) are the names of the highly-ranked officials of Western Zhou Dynasty. Shiqing is the noble under the prince or the Emperors of the states. Shi Lu means the position of the officials is passed from generation to generation. The sons would replace the fathers and owns all the lands and taxes.]

In order to destroy such a system and elect people who are capable, such as “twenty military titles” system (Er Shi Deng Jun Gong Jue Wei)[Twenty military titles system of the Qin Dynasty (221 BC-206 BC) is to reward military work, to encourage combating of the enemies. Twenty military titles system of the Qin Dynasty is divided into twenty ranks, they respectively are: the primary is Gong Shi, the second is Shang Zao, the third is Zan Niao, the fourth is Bu Geng, the fifth is Da Fu, the sixth is Guan Da Fu, the seventh is Gong Da Fu, the eighth is Gong Sheng, the ninth is Wu Da Fu, the tenth is Zuo Shu Zhang, the eleventh is You Shu Zhang, the twelfth is Zuo Geng, the thirteenth is Zhong Geng, the fourteenth is You Geng, the fifteenth is Shao Shang Zao, the sixteenth is Da Shang Zao (Da Liang Zao), the seventeenth is Si Che Shu Zhang, the eighteenth is Da Shu Zhang, the nineteenth is Guan Nei Hou and twentieth is Che Hou.

The Legalists also implemented the "clear reward and penalty system" (Shang Xin Bi Fa) [meritorious person must be rewarded; guilty people shall be fined. Reward and punishment are clear. [Han Feizi. Wai Chu Shuo You Shang: Hu Zi said that the faith must be embedded to the clear reward and punishment.]. That is, the reward and the punishment must be trust worthy, which is a principle of the rule of law, through the reward penalty to promote the Legalists’ "Agriculture and War” (“Geng Zhan policy") policy. The Agriculture and War policy is to pay attention to agriculture; war, that is, to merger among states. So the Legalists through a series of ideas, made Legalism popular in the country where he took power. Besides the reason why Emperor Qin would unify six states was the foundation laid through Shang Yang’s reform (Shang Yang Bian Fa).

To use law to rule the country has a far-reaching impact, which is the instrumentalism of law-to use law as a tool to govern. Wei Zheng of the Tang Dynasty compared it to the whip held by the riders. The riders could be seen as the law by which the governor rule the country. Then who would hold the tool? If the emperors hold it, then it is to use the law to rule which has many limitations.

Since the law is a tool of the emperors, then how to use it properly is influenced by the Emperors, which is to say that if the holders are enlightened, then the law could be used wisely; however, if the holders are fatuous, then the law would probably lose its function of ruling. [just as Han Fei (see picture) said: “if the users of law are intelligent and wise, then the country would be prosperous; if the users of law are imbecile, then the country would be poor.” (Han FeiZi.You Du) So the instrumentalism of law has limits itself which lied on the control of the tool by the rulers while the superior ruler was not bounded by the tool. So there is a distinction between to use law as a tool and rule of law. The latter is the authoritarianism of law and everyone should be bound by the law and in front of which there is no absolute power. Today we promote the Chinese characteristic rule of law which is different from the instrumentalism of law.