Were Chinese Rulers Above the Law? Toward a Theory of the Rule of Law in China from Early Times to 1949 CE

Scholars define the rule of law in many different ways, but they generally agree that it requires at least two elements: one, that the ruler be subject to, or at least not above, the law; and two, that the law be applied equally, or at least equitably, to all members of society.The received wisdom in both China and Euro-America is that China has lacked the rule of law because of the dominance of Confucianism, that advocates the rule of men, and Legalism, that calls for the rule by law. Through a reexamination of basic Chinese texts and a critical review of relevant scholarship in English and Chinese, this article offers a new theory regarding the origins and development of the rule of law in China from the Zhou (trad. 1122-256 BCE) through the Republic (1912-1949).We argue that, by Zhou times, the Chinese conceived of a superhuman basis - the mandate of heaven and nature - for the rule of law, and, by the Spring and Autumn and Warring States Periods, it developed various notions - including Ruist rites, Legalist laws, and even the Daoist Way - that could and did limit the authority of the ruler and increase the equity of society. From the Qin to the mid-twentieth century, Chinese rulers were expected to govern in accordance with customs and models inherited from ancestors, with laws and institutions established in cooperation with officials, and with historical norms produced over time by the interaction of heaven, earth, and humans (i.e., the cosmic process)