Education About Asia: Online Archives

The Spirit of the Rule of Law in China

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By Qiang Fang

In The Spirit of Laws, Charles Montesquieu argued that China was a despotic state whose principle was fear.1 A century later, by developing the theory of “Asiatic mode of production,” Karl Marx suggested that China operated under the principle of “oriental despotism” in which the emperors were regarded as fathers of the state.While historian Karl Wittfogel disagreed with Marx on the term of Asiatic mode of production, he generally accepted the notion of oriental despotism—that hydraulic (agriculture with small-scale irrigation) societies such as China “are usually headed by a single individual in whose person is concentrated all the power over major decisions.”2 Today, despite the arguments made by such Western scholars as Voltaire that [the] Chinese constitution was the best in the world,3 the dominant view of Chinese law remains largely the same as that of Montesquieu, Marx, and Wittfogel. Scholars in both China and America argue that China has only the rule by law or the rule by men and the concept of the rule of law is alien to China.4 Some even go further by arguing that a Chinese ruler who enjoyed unlimited power “not only did not abide by the law but his personal will is the law.”5