The Chinese Legalists are often condemned as defenders of despotism. But obviously, this school has the term “fa” in its name, although “fa” has a broader scope than law in the Western tradition. In the narrow sense of this term, which means “law,” the critics claim that Legalism embraces “rule by law” at best, and not “rule of law,” but such a claim is often the result of confusion about the meanings of relevant terms in legal philosophy. One thing Dr Tongdong Bai wishes to achieve in this paper is to clarify these terms: “rule by man,” “rule by law,” “positive law” (or “legal positivism”), “rule of law,” and “natural law,” and defend a thin version of the rule of 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, while a “thin” version of the rule of law has the merits of conceptual clarity, universalizability, and minimum goodness. By examining the evolution from rule by man to natural law, especially how rule by law can be transformed into the rule of law by acquiring certain features, the rule of law can be characterised by eight principles that legal theorists from different schools may agree on. Based on these principles, 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 legal theories, and the study of it may then contribute to the enrichment of our understanding of law and politics. His thin version of the rule of law may be one of the “thinnest,” which may be instrumental in addressing the practical issue of how to save failed states.

Dr. Tongdong Bai is the Dongfang Chair Professor of Philosophy at Fudan University in China, and a member of the Pontifical Academy of Social Sciences.  His research interests include Chinese philosophy and political philosophy.  He has two books published in English: China: The Political Philosophy of the Middle Kingdom (Zed Books, 2012), and Against Political Equality: The Confucian Case (Princeton University Press, 2019).  He is now working on the philosophy of Han Fei Zi (c. 280-233 BCE), a “Legalist” and a harsh critic of Confucians, as well as a real-life princeling who is often compared with Machiavelli and Hobbes. He is also the director of an English-based MA and visiting program in Chinese philosophy at Fudan University that intends to promote the study of Chinese philosophy in the world.