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Second, Mencius’s thought of “ four beginnings ” which vividly express the ideas of social justice. He said that: “whoever has no sense of compassion is not human: whoever has no sense of shame is not human; whoever has no sense of modesty is not human; and whoever has no sense of right and wrong is not human. The sense of compassion is the beginning of benevolence; the sense of shame the beginning of righteousness; the sense of modesty the beginning of decorum; the sense of right and wrong the beginning of wisdom. Man possesses these four beginnings just as he possesses four limbs.”[20] These ‘four beginnings’ can be seen as equivalent to the expression of justice as a moral conception.
Third, Chuang Tzu’s philosophy provides us with the foundations of a thorough liberalism and humanity. Prof. Wejen Chang said that “ Chuang Tzu took freedom and human dignity very seriously…the idea that an individual can and should stand up to the authorities in defense of his personal integrity is the central theme of Chuang Tzu’s philosophy and his most important contribution to Chinese thought.” [21]Chuang Tzu showed people that “everyone is entitled to have its point of view and opinion, and all different views and opinions are relative; none is absolute. None has an inherent value greater than the other does. None is completely right or completely wrong.”[22]
Fourth, Confucius pointed out the high value in moral education. Confucius did not reject laws, but he thought that rulers should rely on virtue and Li[23] instead of relying only on laws. He said that: “ Guide them by edicts, keep them in line with punishments, and the people will stay out of trouble but will have no sense of shame. Guide them by virtue, keep them in line with the rites, and they will, besides having a sense of shame, reform themselves.”[24] < The Great Learning >, one of the classic books of Confucianism, written in 300 B.C.E., stated a similar idea. It said there were eight goals that everybody should aim for in order to achieve an ideal human life: investigating things, perfecting knowledge, being sincere and honest, setting the heart right, cultivating oneself, educating the family, running the state well and making world peaceful.[25] Prof. Feng Youlan explained that the core or the goal of the eight items was cultivating oneself, which was also the practice and realization of moral perfection of the people. This was a simple and systematic moral philosophy that could guide people to have a good life. And that could not only be of guidance to the sage but also to the ordinary people.[26] Chinese history has shown this to be true to a certain extent. In contemporary China, the rule of law can not succeed unless it has a stable moral foundation.
These legacies are indeed impressive. But a further question is how to transmit them into current societal life? This question is worthy of profound study.
2. The traditional misconceptions related to the rule of law
The legacy of Chinese traditional philosophy is helpful to the process of the rule of law. But, at the same time some traditional misconceptions are hindrances to the establishment of the rule of law in China. Two misconceptions are analyzed below.
a. Instrumentalist conception of the rule of law
There are different conceptions about the rule of law in China, which are Fa Zhi Guo Jia (rule of law state) and Yi Fa Zhi Guo (governing the state by law). These phrases are both in current and regular usage in China. However, some people mistakenly use these phrases inter-changeably causing some confusion. There is an interesting contrast that I have called the phenomena of the comma. There is a comma between the two phrases in “Governing the state by law, constructing the socialism rule of law state”. Many scholars focus on the phrase after the comma that in fact refers to the rule of law; while some officials focus on the part of the phrase before the comma that refers to rule by law. [27]
That is understandable. The two sides of that comma are interrelated when it comes to discussing the law in contemporary China, as the achievement of the rule of law depends on laws being established in the first place. Rule by law is better than rule by force, or by nothing but chaos and arbitrariness.
However, there is a big difference between rule by law and the rule of law. They are based upon different rationales. Rule by law is of an instrumentalist conception and instrumental rationality. The rule of law is a kind of value rationality. [28] The rule of law is actually the rule of people, rule of rationality and justice instead of rule of caprice or arbitrariness of man. In this context, the law is the ‘end’, instead of the ‘mean’. Concluding that the law is the ‘end’ actually is the same as saying that the human being is the ‘end’, according to Kant.[29] However, law is an instrument in the context of rule by law; the ends are something else and laws are the instruments served for some political or economical interests. [30] Hence laws are vulnerable and unreliable in the context of rule by law. If rule by law could be easily supplanted by rule by force or rule by nothing, then laws are no good as instruments for those ends in some circumstances. Or there could be some positive laws without the rule of law. Nevertheless those laws were not good laws as they were contrary to justice, human rights and humanity.[31]
The rule of law based on value rationality is crucial. Nevertheless traditionally, people in China tended to think of laws as instruments, nothing more. More than two thousand and three hundred years ago both Confucianism and Legalists had the same opinion on this issue. Besides, value rationality is not easily accepted by ordinary Chinese people.[32] The practical way to have Chinese people begin to believe in law and justice is to let them feel the benefits of the actual effect of the law in their every day lives, a process which will take a very long time.
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