Abstraction

It is widely held that there are no autochthonal roots in China for the regulation of jurisprudence ; it is an import from the West. The Chinese legal tradition. instead. is rule by jurisprudence. as elaborated in ancient Legalist texts such as the Han Feizi. Harmonizing to the conventional reading of these texts. jurisprudence is amoral and an instrument in the custodies of a cardinal swayer who uses jurisprudence to consolidate and keep power. The swayer is the beginning of all jurisprudence and bases above the jurisprudence. so that jurisprudence. in the concluding analysis. is whatever pleases the swayer. 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 analyzing the text of the Han Feizi through the lens provided by American legal theoretician Lon Fuller. we can observe an expressed articulation of what Fuller called the internal morality of jurisprudence. The rules of this morality are elaborated and their importance explained. In this manner. the Han Feizi is retrieved as a important mention point for believing about legal reform in China today.

I am indebted to Liang Zhiping and David B. Wong for remarks on an earlier bill of exchange. and to William P. Alford. as of all time. for his counsel in believing about jurisprudence and legal establishments in China.

Introduction

The regulation of jurisprudence is now normally regarded as an obligatory measure to set uping China’s rightful topographic point in the planetary community. Yet it is widely believed that there are no autochthonal roots for the regulation of jurisprudence ideal ; it is an import from the West. The Chinese legal tradition. instead. is rule by jurisprudence. as detailed most to the full in ancient Legalist texts such as the Han Feizi.

The differentiation between regulation by jurisprudence and regulation of jurisprudence has many dimensions. Of cardinal importance is the relationship of jurisprudence and morality. Although no canonical expression exists for the regulation of jurisprudence. a moral ideal lies at the nucleus. nevertheless it is specified. In regulation by jurisprudence. in contrast. at least harmonizing to the conventional apprehension. jurisprudence is amoral and an instrument of power. A typical statement is offered by Burton Watson. the well-thought-of transcriber of Han Fei’s work in English: Legalism. Watson says. “professed to hold no usage for morality whatsoever” ( and likewise for faith and ceremonial ) . It focused on a individual job: strengthening and continuing the province. 1 In this respect. Watson follows Arthur Waley. who said that members of the “school of law” ( fajia ) “held that jurisprudence should replace morality. ” Alternatively of the term “school of jurisprudence. ” which he regarded every bit excessively narrow. Waley referred to members of the fajia as “the Amoralitsts. ”2

It is because of this alleged amoralism that Randall Peerenboom can compose a 670page book on “China’s long March toward [ the ] regulation of law” and hardly reference Han Fei. Peerenboom expresses the conventional position: for Han Fei. jurisprudence is one instrument in the ruler’s tool chest for prolonging strong centralized control. Since the swayer is the beginning of all jurisprudence. and stands above the jurisprudence. there are no bounds or effectual cheques on the ruler’s arbitrary power. “In the concluding analysis. jurisprudence was what pleased the swayer. ”3 This position of Legalism is reinforced by a peculiar reading of Chinese legal history during the period of the Three Dynasties. China’s bronzy age. Liang Zhiping. the high legal bookman. claims that the preference for regulation by jurisprudence. in Han Fei and other Legalists. has its roots in the manner jurisprudence emerged ab initio in China. viz. . as an instrument by which a individual kin exercised control over rival kins. “ [ W ] ithin a system that was inherently unstable … [ cubic decimeter ] aw was seen as the will of the swayers and an instrument of suppression ; its primary manifestation was in penalty. ”

Hence. the pick of regulation by jurisprudence was the merchandise of an drawn-out and alone cultural development. “ [ T ] he legalists simply developed to its extreme the ancient legal theoretical account. ‘ [ Y ] ou who obey my orders shall be rewarded before my ascendants ; and you who disobey my orders shall be put to decease before the liquors of the land. ’”4 These two constructs of jurisprudence and legal institutions—rule by jurisprudence and the regulation of law—are familiar in the West. although regulation by jurisprudence now has few. if any. advocators. But one needs to travel back merely to John Austin. the influential nineteenth century English legal theoretician. for systematic amplification of regulation by jurisprudence. Western theoreticians. so. might be tempted to look at Chinese Legalists through the lens of Austin. since his work enables us to see a systematic organic structure of idea in the Han Feizi.

However. this lens. I shall reason. convey some elements of the Han Feizi into crisp focal point merely at the cost of falsifying others. Western theoreticians need a disciplinary lens. which is provided by Lon Fuller. In measuring Austin’s history. Fuller’s attack is most helpful because it offers an internal review. demoing that denial of a compelling connexion between jurisprudence and morality is inaccurate to the theory itself. Fuller’s history does non rest on a semantic analysis of “law” but on a matter-of-fact grasp of legal order as a signifier of administration. Out of this grasp. the practical connection—the interaction and common dependance of jurisprudence and morality in the mundane work of lawgivers and other collaborative participants in the creative activity of legal order—emerges even in regulation by jurisprudence decently understood. Therefore. Fuller shows how the moral nucleus of the regulation of jurisprudence is present in the generic usage of jurisprudence in society.

The moral nucleus of the regulation of law—the thin theory. as it is frequently called— encompasses two cardinal thoughts: ( 1 ) While jurisprudence is an instrument of political power. jurisprudence besides constrains power. Hence. jurisprudence and power are. to some grade. opposed. ( 2 ) While jurisprudence channels political power. jurisprudence besides enables power to be justly exercised. Hence. jurisprudence is a beginning of legitimation for the exercising of power. How is political power constrained and yet besides justly exercised? The regulation of jurisprudence ideal is that these conditions are met if it is genuinely the jurisprudence that governs legal topics. non the wants of specific persons or groups. The ideal is a authorities of Torahs. non individuals. so the moral nucleus ( in a word ) is impersonal administration. My thesis is that Han Fei’s text. the Han Feizi. shows this moral nucleus and therefore connects jurisprudence and morality. I shall reason. so. that the Han Feizi advocates a purer signifier of the regulation of jurisprudence than is offered by many Western theoreticians. Chinese Legalism did non get down with the Han Feizi. but it is by and large regarded as the most sophisticated expounding of the theory. I believe it is more nuanced than coevalss of observers have acknowledged.

It is of import to stress that my involvement is with the regulation of jurisprudence as a legislative. instead than judicial. ideal. This focal point is appropriate for the Han Feizi. since it contains no expressed judicial theory ( although it has definite deductions. as we shall see. for the work of Judgess ) . That means that the vision of jurisprudence in the Han Feizi is uncomplete. On the other manus. most Western theoreticians neglect the legislative ideal. and many erroneously believe that judicial independency ( or the separation of powers ) is sufficient for set uping the regulation of jurisprudence.

I shall propose that. at least for the legislative ideal. worthy autochthonal Chinese beginnings for the regulation of jurisprudence exist. Contrary to Watson and Peerenboom. I argue that the Han Feizi intends to associate jurisprudence and morality. But I should state from the beginning that this essay is non an effort to recapture Han Fei’s witting motivations or point of position. It is an effort to recover a text for modern-day apprehension and usage. True. this attempt runs the hazard of literary misprision—willful. non to state originative. misreading. But retrieving the rich history of Chinese legal idea seems to me worth that hazard. It is frequently said. with good ground. that consecutive Chinese emperors followed the Legalist templet set out by the Han Feizi. If it turns out that the Han Feizi carries a different message from the one it is normally taken to convey. the imperial history may hold to be re-examined to find when it followed the templet and when it did non. 5 [ I ] Rule by jurisprudence: Han Fei and John Austin

The conventional reading of the Han Feizi pictures jurisprudence as an instrument in the custodies of the swayer. This could intend different things. Instrumentalism is sometimes construed to intend that swayers use jurisprudence merely if and when it suits their intents ; it is employed ( or non ) at the ruler’s discretion to accomplish the ruler’s ain desires or terminals. In this building. jurisprudence does non hold any particular pride of topographic point. and surely nil beyond a causeless connexion to moral value. On any peculiar juncture. if a swayer fails to recognize his or her will by the usage of jurisprudence. an alternate instrument of administration could be deployed. Let’s name this ad hoc or strategic instrumentalism. This is non rule by jurisprudence. as I understand it. Rule by jurisprudence meets at least one and perchance two conditions losing from ad hoc instrumentalism. Most significantly. the committedness to rules—fixed criterions of general applicability—is non ad hoc ; they are the ruler’s chosen mechanism of administration. Therefore. the committedness to regulations is calculated and house. and the instrumentalism is consistent and principled.

This committedness. we shall see. present a assortment of self-imposed restraints on legislation and secures the connexion between jurisprudence and morality. Second. the regulations promulgated are non needfully intended to function the lawmaker’s personal desires or terminals. They may function common terminals. or they may allow ( or enable ) topics to prosecute terminals of their ain. In that event. we move from a minimum to a morally robust instrumentalism. If the regulations facilitate the chase of ends other than those of the lawmaker. principled instrumentalism passages into the regulation of jurisprudence.

Although the Han Feizi is conventionally read as committed ( at worst ) to ad hoc instrumentalism or ( at best ) to a consistent but minimum instrumentalism. I shall reason in subdivision III that many of the essays that make up the Han Feizi advocate a robust principled instrumentalism. For this ground. it will be helpful to analyze foremost a systematic statement of the minimally instrumentalist position. John Austin is more clearly committed to minimum instrumentalism. because his purposes were more academic—to elaborate a systematic theory—whereas Han Fei wished to supply practical advice to swayers. A consideration of Austin enables us to hold on what coherence the minimally instrumentalist position has.

Like Han Fei. Austin aimed to be a realist about jurisprudence. to analyze existent facts in the universe. That led him to follow the being of jurisprudence to the exercising of power. Consequently. the proper apprehension of jurisprudence is familial. In the rigorous sense. jurisprudence is a command—a want expressed by a determinate individual or organic structure possessing supreme power in an organized and independent society. backed by the believable menace of a countenance ( i. e. . hurting ) in the event of disobedience. Why does the believable menace of a countenance make a jurisprudence binding?

Austin was a voluntarist approximately jurisprudence as he was in divinity. The responsibility to obey a bid rests non on its conformance to an independent moral criterion but merely on its emanating from a overriding power. To hold a responsibility to move is to be compelled to move. “ [ I ] T is merely by the opportunity of incurring immorality. that I am bound or obliged. ”7 Thus. whether Godhead or homo. jurisprudence makes its visual aspect within a relationship of domination—a superior ( in power ) publishing orders to an inferior ( in power ) . where the former has the capacity to oblige the latter to move by agencies of a threatened immorality. i. e. . hurting. The responsibility is legal if it is issued by a political crowned head. moral if issued by God.

Hobbes observed that the conditions for a societal contract obtain if individuals are of approximately equal ability. for so they get an equality of hope in holding their several claims satisfied. But in fortunes where a clear domination of power prevarications in one person or organic structure. no inquiry as to the proper distribution of responsibilities and rights arises. The distribution of responsibilities and rights of course parallels the distribution of power. 8 That. evidently. is Austin’s position every bit good. The foundation of jurisprudence is force or the menace of its usage.

To hold a responsibility. therefore. in Austin’s quaint phrase. is to be objectionable to the superior’s menace. Obnoxiousness is determined by one of two empirical facts: either the extent to which the inferior party is motivated by fright of the countenance. or the likeliness that the superior party will transport out its menace. While the chase of pleasance is every bit much an ultimate spring of human action as the turning away of hurting. the latter is more to be relied on than the former. The certainty and badness of threatened hurting. in the event of disobedience to the superior’s bids. are specifying characteristics of legal ( as of moral ) order.

Since the definition of jurisprudence stipulates nil about the content of the superior’s want. jurisprudence may hold any content whatever and still be adhering. The separation of jurisprudence and morality is secured: might makes right. Therefore. jurisprudence is imperative. preemptory. morally arbitrary. coercive. and an instrument of domination. It besides. as we shall see more to the full in a minute. purposes above all at stableness and order. By definition. Austin’s crowned head is non capable to a superior power and hence does non hold any legal responsibilities. ( By the same item. the crowned head does non hold any legal rights. either. ) Austin formulates this point most aggressively by detecting that “every authorities is lawfully despotic. ”9 This is a provocative manner of stating that its power is lawfully limitless ; it stands above the jurisprudence and can do. or unmake. any jurisprudence whatever.

It is non misdirecting to state the crowned head is self-legitimating. every bit long as we keep in head that legitimation comes non from fulfilling a criterion of legitimacy but from the successful exercising of supreme power. Yet one of the virtuousnesss of Austin’s authorship is that it is richer than the familial definition of jurisprudence would take one to anticipate. ( Failure in the legal literature to appreciate the richer analysis is the same sort of failure one finds sing the Han Feizi. ) Researching some of this profusion will assist us develop a review that illuminates the Han Feizi. Austin really formulates three distinguishable definitions of law—in add-on to the familial there are formal and purposive definitions—each of which meshes amiss with the others.

The formal definition appears when Austin stipulates that a bid is a jurisprudence merely if it has the property of generalization. that is. it must mention to a category of Acts of the Apostless to be done or avoided. non a individual action. Particular or occasional bids are non Torahs in the rigorous sense. 11 This judicial admission is reasonable. since modern jurisprudence typically consists of a organic structure of standing regulations. non ad-lib orders. It shows that Austin idea of legal order as a system. or at least a set. of regulations. But in relation to the familial definition. it is wholly unmotivated ; nil in the significance of bid requires it.

At the same clip. the deductions are profound. The add-on of generalization represents a important going from personal bid and toward impersonal administration. It commits the lawgiver to moving in certain ways in every bit yet unknown instances. And. by grouping actions into categories. it produces a grade of uniformity of intervention across individuals. So. with generalization. the image of a compliant inferior following the wants of a superior recedes to a important grade.

These implications—uniformity across individuals and anterior committedness in unknown cases—indicate that certain formal characteristics of Torahs may hold moral import. and I shall state more about them in a minute. With jurisprudence understood as a self-aware instrument of domination showing the wants of a ( human ) crowned head. it is merely to be expected that Austin would emphasize the possible divorce between the content of published Torahs and the demands of morality. “The being of jurisprudence is one thing ; its virtue or demerit is another. ”12 But if jurisprudence itself. merely as a organic structure of general regulations. has moral import regardless of its content. we have taken an of import measure toward a robust musician history of jurisprudence.

The profusion of Austin’s analysis is even more apparent in his purposive definition. In its most general and comprehensive sense. he says. a jurisprudence is “a regulation laid down for the counsel of an intelligent being by an intelligent being holding power over him. ”13 Asymmetry in power is cardinal for Austin. as we have seen. but intelligent counsel introduces a different dimension. Austin followed Locke in thought of jurisprudence as a human appliance. set uping dealingss between rational existences. But the thought of intelligent counsel has deductions Austin was hesitating to prosecute. He recognized. for illustration. that the construct of bid precludes ex post facto regulations. since an vocalization can non represent a bid if the action required can non be performed. Yet to admit this conceptual point would be tantamount to puting a bound on autonomous power ; an ex station facto dictum would non be a jurisprudence. even though it possessed all the other characteristics of the familial definition.

14 Further. such recognition would be the first measure on a slippery incline. It would let one to state that other dictums of the crowned head are besides non Torahs. for case. 1s that are non clear in intending. How could an vague or incoherent vocalization provide intelligent counsel to human behavior? Or an vocalization that was non made populace? Or that kept altering? These deductions are exactly the 1s pursued by Fuller in developing what he called the internal morality of jurisprudence. Before turning to Fuller. nevertheless. we should hesitate to inquire why Austin recoiled from the deductions of his purposive definition and alternatively adhered to the thought of jurisprudence as an instrument in the custodies of a supreme individual or organic structure exerting power over others.

My hypothesis is that regulation by jurisprudence in its minimalist discrepancy was of import to Austin for two related grounds: the fright of upset and the uncertainness of morality. Both of these were reflected in Austin’s ambivalency about the enlargement of democracy in England in the early nineteenth century. He saw small possibility. at least in the foreseeable hereafter. of accomplishing the educational and mental betterment of the general population that he regarded as a requirement of democratic authorities. As a consequence. harmonizing to John Stuart Mill’s history. Austin developed an “indifference. surrounding on disdain. for the advancement of popular [ i. e. . democratic ] establishments. ”15 In add-on. Austin believed that common moral sentiment was so fractured. so full of fondness and bias. that ordinary people can non be trusted to move decently. What makes authorities by a powerful swayer necessary and expedient is the “uncertainty. meagerness. and imperfection” of the moral beliefs people espouse.

“Hence the necessity for a common government ( or common guiding ) caput to whom the community may in concert defer. ”16 The resonance of these transitions with much of the Han Feizi. or at least the conventional reading of it. should be evident. Lack of assurance in the capacity of human existences to regulate themselves makes it necessary to hold a crowned head whose will provides common directives that are easy discernable and effectual. If people are allowed to follow their natural leanings. they will prosecute in all mode of disorderly behaviour. Social order requires stable external way by agencies of the menace of force.

Therefore. the solution to the job of societal order—Hobbes’s problem—is managerial way ( to utilize Fuller’s term ) . Without top-down control. affairs are likely to acquire severely out of manus. The exercising of control in Austin’s instance. of class. is thought of as benign. The goods of order and integrity are taken for granted. The power of the higher-up is canvassed. non in footings of personal wants or even category involvements. but its efficaciousness in bring forthing the “steadiness. stability. or uniformity” that every society needs. Thus. Austin—like Han Fei. as I shall argue—makes sense of jurisprudence in pattern as an instrument in the custodies of a individual person or mandarin elect with the competency and needed disinterestedness to go to to the public demand. To that extent. Austin’s theory is a pure look of regulation by jurisprudence.