II. History of rule of law in China and Western countries

As a type of governance method, rule of law was established in modern times, but it started to develop as a concept long time ago. The exploration of ruling-by-law thought has a long history both in the East and in the West.

In China, Legalists（a school of thought in the Spring and Autumn and Warring States Periods）has put forward the concept “running the country according to law” in pre-Qin period. Though in essence, it was different from rule of law that we follow today, it acknowledged the positive significance of law. According to legalists, law included the policies, decrees and regulations set by governors. Shang Yang, a representative of Legalists, once said, “A nation should based laws on reality, otherwise, laws might lead to chaos”. He emphasized the important role played by law in the rise and decline of a nation. Han Feizi, another representative of Legalists, stated that laws were essential for a nation and that rewards and punishments should be based on laws. He stated that “the law does not favor powerful people, the ministers receive equal punishment and the ordinary men receive equal rewards”. That is to say, there is no discrimination between nobility and commoner before law.

In 221 BC, First Emperor of Qin unified China and established the first despotism characterized by centralization of authority in the history of China. Guided by the ideology of the Legal School such as “governed by law” and “severe punishment”, Qin Dynasty established a very strict legal system. However, the short-lived Qin Dynasty only lasted for two generations. Learning from its historical lessons, Han Dynasty introduced the thoughts of Confucius School in the legal system, and the tradition of governing a nation by both law and virtue was thus established. This tradition reached its peak in Sui Dynasty and Tang Dynasty. The promulgation of Tang Code symbolized that the course of combining morality with law was basically completed. The primary thoughts of Confucius School were incorporated in the law, and therefore, Chinese society was characterized by “moralization of law and legalization of morality” by then. After Song Dynasty, the legal system received further development based on the framework formed in Sui and Tang Dynasties. But with the reinforcement of feudal autocracy, legal system gradually became the tool for the feudal ruling class to maintain its regime. Though the development of legal system in ancient China revealed that legal construction in feudal society was fundamentally served for the rule of man, their legal thoughts could serve as a reference for our legal construction today.

In the West, the ruling-by-law thought also has a long-standing and well-established tradition. As early as the ancient Greece and ancient Rome period, philosophers such as Plato, Aristotle and Cicero have made incisive and profound elaborations on rule of law. Initially, Plato, who believed in the rule of an idealized philosopher king in The Republic, was actually an advocate for rule of man. But through more practices, Plato in his later years accepted the thought of rule of law, explaining that, “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off.” Aristotle, who was Plato's student, flatly opposed letting governors wield power beyond guarding and serving the laws. Instead, he believed that rule of law was superior to rule of man for the following reasons. Firstly, unlike rule of man, which might be biased sometimes, rule of law was impersonal and impartial. Secondly, law was enacted by the majority, and naturally, the rule of majority was better than the rule of one man. Thirdly, rule of man, especially hereditary monarchy, might impede national development. Fourthly, rule of law was the inevitable demand of the times and governing a nation by one man was unfeasible. According to Aristotle, as the principle of administering a nation, the cores of law were fairness, authority, completeness and universal recognition. Aristotle defined rule of law as follows, “the enacted laws receive universal obedience, and the laws respected by the public are laws well enacted.” This definition has a far-reaching influence and is still revered in the jurisprudential circle. Cicero inherited and developed Aristotle's theory of law, advocating the rule of law as opposed to the rule of man. He believed that happiness of the citizens depended on the rule of law and that everyone, governors included, should be equal before the law. In Cicero's representative work The Law, he stated that “laws govern consuls, so consuls govern people—consuls are laws able to speak and laws are consuls unable to speak”. Aristotle's and Cicero's theories of law had a very deep influence on the establishment and development of the Western law theory in modern times.

After the dark Middle Ages, ruling-by-law thought reached another climax in the West. Enlightenment thinkers like Locke, Montesquieu and Rousseau highlighted the importance of reason, advocated the authority of law and the rule of law, opposed rule of man and feudal privilege in feudal society, and promoted equal rights of human beings before law. English philosopher Locke in his reprehensive book Two Treatises of Government divided national political power into three kinds—legislative power, executive power and alliance power, and stressed the separation of legislative power and executive power. According to Locke, a real republic should be a nation with complete legal system and effective enforcement of law. He considered the principle that “everyone is equal before law” as one of the most important principles of rule of law. In the book On the Spirit of Law, French thinker Montesquieu proposed that in order to prevent abuse of power, authority should be controlled through restriction and balance of power. Montesquieu divided sate power into legislative power, administrative power and judicial power, because he believed that separation of the three powers, especially the independence of judicial power, was the prerequisite of rule of law. Rousseau, another French thinker, stressed equality before the law in his representative work The Social Contract, explaining that “social contract guarantees equality of citizens in that they obey the same rules and enjoy the same rights.” In addition, Rousseau maintained that only through the enforcement of law could the freedom, dignity and value of people be protected. The enlightenment thinkers' opinions on law facilitated the development of rule of law after the bourgeois revolution succeeded at the end of 18th century and 19th century. Though we follow the socialist rule of law, we could learn from their experiences and absorb their essence.