Between Natural Law and Positive Law: On Han Fei Zi’s Theory of the Rule of Law
Prof. Bai Tongdong
14/06/2023 – WED 16:30 – Room 5318
The Chinese Legalists are often condemned as defenders of despotism, but it is obvious that they consider laws (and institutions) to be crucial in governance. The critics then claim that what they are embracing is “rule by law” at best, and is definitely not “rule of law.” However, these terms are often used in a confused and unclear manner. In this paper, I first clarify and distinguish among terms of legal philosophy such as “rule by man,” “rule by law,” “positive law” (or “legal positivism”), “rule of law,” and “natural law.” Those who are critical of Legalists such as Han Fei Zi often take a very “thick” reading of the rule of law, making it the rule of the good law or a form of natural law. With this (mis-)reading, they then reject the idea that Han Fei Zi’s theory of law is in line with the rule of law. I will then show that despite the distinctions, there is a continuous spectrum from rule by man to natural law. In particular, when the law in legal positivism acquires certain features, rule by law can be transformed into the rule of law. Indeed, legal theorists from different schools may agree on a similar set of features of law, and based on these features, we can show that Han Fei Zi’s understanding of the law is firmly in the camp of the rule of law. But his theory has some subtle differences from Western political legal theories, and the study of it may then contribute to the enrichment of our understanding of law and politics.