Against the rule of man: the Confucian and Western traditions of good administration

Abstract

This article investigates the Confucian and Western traditions specifically with regard to the relation between morality, law and good administration. It is argued that the common opposition between the rule of man and the rule of law as reflecting the basic difference between the two traditions is inadequate. Confucianism can be better characterized positively as the rule of morality. It should also be noticed that ‘the rule of law’ is increasingly being introduced into the Chinese administration. Similarly, even though the Western tradition can be summarized in terms of the rule of law, it is acknowledged that ‘the rule of man’ cannot be avoided, and that morality is important. Both traditions oppose the rule of man, in as far as it refers to someone acting out his selfish preferences. It is concluded that good administration requires officials with both good morality and respect for the law; whether this is a kind of convergence is a matter of debate.

Points for practitioners

This article studies Confucian and Western administrative traditions in relation to the notion of good administration. It is argued that the common characterization and understanding of the Confucian tradition in terms of the Western reviled ‘rule of man’ is misguided. Rather than understanding the positive moral connotations of the Confucian good administrator it associates them with a specific negative notion; at the same time, overstressing the Western ‘rule of law’ may obscure the need for moral persons for good administration.

Keywords

Confucianism good administration law morality rule of law Western tradition

Introduction

To oppose Chinese and Western¹ thought in terms of the rule of man vs the rule of law is common; however, it has not received attention within the increasing literature on administrative traditions (e.g. Bevir et al., 2003; Boyer, 1990; Smelser and Baltes, 2001). This article focuses on the different normative starting points of these two traditions in relation to their ideas of good administration. It is concluded that the characterization of the two traditions in terms of the (Western) conceptualization of the rule of law vs the rule of man hampers understanding of differences and similarities. Both traditions reject the notion of the rule of man in good administration.

In the context of this article, we cannot do justice to the wide variety and complexity of the two vast traditions, nor can we make in-depth, broad comparisons. The aim is to focus specifically on the fundamental differences primarily in relation to the idea of good administration. Before doing so, some remarks on the nature of translation and tradition are required.

A specific problem is that we have to deal with concepts in many different languages when comparing the two traditions. This can result in similarities and differences that are a construct of translation into English. For instance, are the terms ‘civil servant’, ‘Verwaltungsbeamte’ and 公务员 simply cognitive equivalents denoting similar social (legal, political) phenomena? The more complex and culturally specific a concept is, the more likely it is to be problematic, as Collier and Mahon (1993: 848) illustrate when discussing the meanings of ‘political participation’. Translating Chinese concepts into English, and vice versa, is never straightforward.²

Cultural differences are often captured in terms of traditions (Painter and Peters, 2010: 4). There are many definitions of ‘tradition’,³ but for the purpose of this article we regard it as a normative orientation that can be expressed by means of a fairly stable basic set of ideas and values, which is relied upon both implicitly and consciously, is (at least partly) handed down actively and consciously, is protected, and brings with it moral and intellectual prestige.

In the literature, different administrative traditions have been identified (cf. Painter and Peters, 2010; Schwartz, 1999; Yesilkagit, 2010). In this article, the focus is on the two ‘great traditions’ that encompass a large cultural and historical area: the Eastern or Confucian tradition, and the Western or ‘Socratic’ tradition. What is more, the focus is limited to Chinese and European thought, for there are major differences within both traditions that have to be ignored in the context of this article.

In the next sections we will first characterize the Chinese tradition, followed by the Western tradition. In both cases the notion of law is used to highlight similarities and differences. Finally, we will discuss the characterization of both traditions in terms of their rejection of the rule of man.

Law in the Chinese tradition

The dominant influence of Confucianism on traditional Chinese administration is generally recognized. It focuses on ‘teaching and moral guidance (rather than penal law) as instrument for the government of the people’ (MacCormack, 1996: 6). In order to highlight the starting points of Confucianism we can compare it to Legalism. Legalism insists on law as a prime tool for government (‘rule by law’: ‘in rule by law … law is amoral and an instrument of power’ (Winston, 2005: 313). Whether morality and law are conceptualized as mutually exclusive, or whether they are both characterized in terms of law, i.e. natural vs positive law (see Orts, 2001: 51), in either case law is ‘regarded as something vital to the existence of a moral order, something which – though created by man – stands and is regarded as a force in itself’ (Michael, 1962: 125). Winston (2005) points at a core issue: the difference between the rule by law in Chinese tradition and the Western rule of law is a matter of how the relationship between law and morality is conceived. In the Confucian ideal, morality is supposed to be the highest warranty to secure social order, while the rule of law in China was, unlike in the West, not ‘above the quarrels of the day’ (Michael, 1962: 125).

In Confucianism, law has but a marginal function. Morality and the moral code li (rites) ‘took over much of the function filled by law in [the] Western tradition’ (Michael, 1962: 127). Nevertheless, Confucian ideology ‘provides the fundamentals for the substance of traditional law’ (Ren, 1997: 19). The Confucian conception of law shares many traits with the Western idea of ‘natural law’ (e.g. Greer and Lim, 1998; Orts, 2001). A main difference is that law is ‘inextricably intertwined’ with personal and political morality in Confucianism (Greer and Lim, 1998: 81). Furthermore, Western natural rights theories do ‘regard society and the state as outcomes of a contract between rational individuals’ (Greer and Lim, 1998: 85); Confucian good government relies on ethical persons to maintain a social hierarchy and harmony to ensure the ‘natural order’. The social relationships and rules to govern are prescribed in the li, which are a matter of ‘moral codes’ rather than of formal laws and regulations. Confucianism regards regulation through laws to be essentially a matter of moral performance, and it makes no sharp distinction between morality and law in terms of li (rites) and fa (laws). This pair reflects the different values of Confucianism and Legalism regarding government: Confucianism is founded on the moral qualities of the political elites, whereas Legalism is founded primarily on law or fa.

Legalism: fa

The main origin of Chinese legal administration is Legalism, also called the school of fa (law), and it provided ‘the important framework of the traditional legal system’ (Ren, 1997: 19), with the central idea that a ruler should rely on standard rules and severe penal codes to maintain social order.

Linguistically, the word fa in Chinese does not relate to fairness or justice (Liang, 1989: 59), but is more close to fá (罚),⁴ which means penal punishment, and lü (律), which means written laws. The earliest Chinese Legalist author Guanzi (c. 720–645 BC) defined laws as standards for measurement (Guanzi, 1985: 128); government should rely on laws to manage the state by balancing punishment and reward without bias. However, Guanzi did not ignore morality, and he asserted the Four Principles (siwei四维) with which to run the state: li (rites), yi (justice), lian (incorruptibility) and chi (sense of shame). Morality here refers to socially shared morals rather than personal virtue, and it exists within the framework of law. Guanzi points to a link between law and morality in general: ‘Legal statutes, regulations, and procedures must be patterned on the moral way, the orders must be publicized and made clear, and the rewards and punishments must be made reliable and absolute’ (Guanzi, 1985: 256). Although law comes prior to morality, the latter is still important for society and its ruler.

Perhaps the most famous legalist is Han Fei⁵ (ca. 280–233 BC). He argued that ‘moral considerations should be rigorously excluded in the conduct of government’ (MacCormack, 1996: 4). Han Fei began from the conviction that human beings are self-interested (Cao, 1948: 33), and therefore a ruler should not expect people to automatically act in a good way: acceptable behaviour needs to be enforced by means of laws and severe punishments. Han Fei objected to the Confucian ideal of the moral sage governing the state: ‘men with literary learning should not be employed in the government, for employing them means throwing the laws in confusion’ (Han Fei, cited by Denecke, 2010: 304). Han Fei’s political thought can be captured by three complementary concepts – fa (laws), shu (tact) and shi (position) – which constitute the core of Legalist thought (see Jiang, 2000: 55–56).

Fa is ‘the law as codified in books, kept in governmental offices, and promulgated among the hundred surnames [of the masses]’ (Han Fei, 1959: 188). This is in line with the Western notion of positive law, and does not include moral principles, codes or customs. Shu refers to statecraft: the skill or techniques to rule in order to ensure that the king’s authority is maintained. Finally, shi denotes the ruler’s authority, i.e. the power status he should maintain in order to avoid being weakened or usurped by his ministers and officials.

The Legalist notion of fazhi is commonly translated as the rule of law, although this is not quite accurate as the concept exclusively applies to ruling a state (Liang, 1989: 80–81). There are also some aspects of the Western (formal) notion of the rule of law that are included in Legalism, such as the demand that law cannot be made in hindsight, that it should be open, clear and stable, and should be applied regardless of social status (see Raz, 2009: 183). However, regarding the latter, the ruler is exempted as the ultimate authority of the law.

Morality and law are linked in Legalism to the extent that punishment and reward are employed to stop wickedness and encourage merit. Legalism therefore tries to codify rites into law and aims to arrive at government by laws and not by persons, even though the ‘authority of the law comes from the authority of the king’ (Liang, 1989: 83). What is more, legalists realize that the law has to be executed by people, requiring that they do the right thing. It therefore appears, as we shall see, that Legalism objects to the rule of man, but requires a rule of morality. This brings us to Confucianism.

Confucianism: li

Confucianism was the core teaching for all bureaucrats over two millennia of Chinese imperial bureaucracy (Ren, 1997: 3). Confucianism was, however, not static, and came to incorporate ideas originating in, for instance, Taoism and Buddhism. From the very beginning, public administration was a major concern; many of Confucianism’s major scholars were themselves officials. Contrary to Legalism, law is not regarded as a major concern, but rather li or rites. These could perhaps acquire ‘the force of law’ (Lee and Lai, 1977: 1326). Orts (2001: 77) points out similarities between the concept of li and the Western law. However, a major difference is that (positive) law concerns human, social norms, whereas li is considered part of the natural order (Zhang, 2002: 44–45). Xunzi therefore combines the concepts of law and rites into ‘law-rule’, which guides both administration and social life according to Confucianism:

[Kings and lords should be] sincere about justice in their intentions, encapsulating justice in their laws, rules, standards and measures, and practicing it in their administration of affairs. (Xunzi: see Zhang, 2002: 45)

The previous shows that in classic Chinese texts, fa (laws) and li (rites) have no simple equivalent in the Western concept of law (or morality, for that matter). A fundamental difference with the Western idea of the rule of law is that Confucianism (and Legalism) primarily refers to law as a tool for political control. As Peerenboom (2002: 33) suggests, ‘it is better understood as rule by law’. Furthermore, the enforcement of laws relies on ‘man’s, especially the ruler’s, capability in administering law’ (Ren, 1997: 3); this is where the ‘rule of morality’ comes into the picture.

Only during the early and brief Qin dynasty (221–206 BC) was Legalism the dominant administrative philosophy. Thereafter it was rejected, and with Confucianism li became dominant over fa (see Lee and Lai, 1977: 1325). As noted, li has the regulatory power of law, but it is not law:⁶ ‘[It] is supposed to be the basis for an orderly society and the ideal basis of government’ (Shun, 1993: 457–458), providing ‘a unified moral code’ for the cultivation of virtues (Cheung, 2010: 32). Rites and moral virtue are thus intrinsically linked, which is absent in Western ethics.

Confucianism also includes a close connection between personal morality and state government, in the form of the rule of morality. The ideal ruler is a sage-king (内圣外王), and good government requires ‘the Confucian intelligentsia’ (Cheung, 2010: 39), i.e. persons of complete virtue: the Junzi. This constitutes the moral basis of Confucian political thought (see Hwang, 1999; Shun, 1993; Tu, 2000). The prime Confucian classic, The Great Learning, states the moral cultivation of rulers: ‘Wishing to order well their states … they first rectified their hearts’ (Confucius, 2009: 357). Yao captures this as ‘the fundamental Confucian belief that the peace and harmony of the world cannot be achieved by force of arms, nor by power of law, but only by moral virtues and moral influence’ (Yao, 2003: xiii).

The link between personal morals and good administration constitutes an integrated moral system linking individuals and society as well as society and government. The rule of morality amounts to an interconnected set of ideas for self-cultivation, dealing with interpersonal relationships according to rites (li), providing moral education for the common people to become junzi and engaging in government with humanity (ren) in order to enable self-cultivation, thus completing the circle. The focus is on morality and learning: ‘Confucian learning therefore lays emphasis on self-cultivation, rather than the building of institutions’ (Yao, 2003: xiv).

Modern China:⁷ Western influences

The revolution led by Sun Yat-sen and the foundation of the Republic of China in 1911 ends the millennia imperial era, which brings Western ideas and values. Pioneers⁸ had already argued for constitutional monarchy and new interpretations of Confucianism and Western political ideals, including Communism. Yuan Shikai (1859–1961) was arguably the first to infuse Confucian ideals of government with Western political notions (Jenco, 2010:185). Ideas on constitutions and democracy were influential among young Chinese students and scholars, and resulted in ‘the final dissolution of old Chinese tradition and the birth of a true Chinese nation’ (Chen, 1971: 6).

Scholars and politicians such as Zhang Shizhao (1881–1973) advocated for impartial laws and emphasized the responsibility of citizens instead of sages (Jenco, 2010: 198). Nevertheless, the period from 1911 to 1949 was composed of ‘foreign invasions, native uprisings (such as the Christian-inspired Taiping and anti-Western Boxer rebellions), and the effects of global and internecine warfare’ (Orts, 2001: 56–57), all of which hampered legal development. After the Communist Party took over in 1949, Marxist and Soviet models of law as instruments for party rule were applied to establish a Socialist legal system. In the first years of new People’s Republic of China, there was a vast improvement in the legal system: Civil Law, Penal Law, Marriage Law and the Constitution became effective (Liang, 2011: 24). This did not, however, imply a rejection of tradition for, as Zhang and Schwartz argue, Communist China needed the ‘Confucian tradition of deference and hierarchy’ to legitimate government policies (Zhang and Schwartz, 1997: 195). Confucian philosophy was even emphasized by Mao and other communist leaders in the early phase. However, legal developments stalled during the Cultural Revolution (1966–1976), when the Communist Party actively tried to eliminate traditional Confucian ideas (Zhang and Schwartz, 1997: 200), and disrupted, as Orts puts it, ‘any ordinary concept of law in China’, making it ‘virtually a lawless nation’ (Orts, 2001: 57, 58).

After this episode, the development of law once again enjoyed a rapid growth (Chen, 2007: 692), and in the light of economic development significantly improved in the 1990s. Among the major improvements was that citizens, as well as party members and government officials, became principally equal before the law. Nevertheless, the legal system is still far from the ideal as legislation and judiciary are under the direct rule of the Communist Party. Furthermore, a major deficiency is embedded in the Constitution itself, which declares everyone as being subject to the law, while at the same time privileging Maoist-Leninist political theory and Communist Party leadership (Orts, 2001: 68).

A restoration of Confucian li and virtues was begun during Deng Xiaoping’s regime (1977–1997⁹). There was no desire to legitimate the regime as a pre-Cultural Revolution state, but ‘to dignify and stabilize a backward society seeking a place in the modern world’, whereby Confucian thought was used to reinforce a new moral order (Zhang and Schwartz, 1997: 202–203). This revival of the rule of morality seems to imply a remedy: Party members and administrators should morally self-regulate, and the people should advocate for leadership of a moral Party for a harmonious society. The revival also embraced the elevation of law as providing external, legal constraints on the abuse of power in case morality fails. Jiang Zemin, former President (1993–2003), explicitly called for the complement of law and morality, uniting them with the rule of morality as statecraft for the purpose of ‘ruling the country according to law’ (Chen, 2007: 724).

Law seems a dominant theme, rather than morality, to Chinese governance lately. It has announced in the fourth plenary session of the 18th CPC Central Committee to make efforts towards ‘comprehensively advancing the rule of law’, a ‘socialist rule of law with Chinese characteristics’ (The State Council of the People’s Republic of China, 2014). The latter implies, on the one hand, strengthening law-abiding government, and, on the other hand, keeping the leadership of CPC as the first principle. As Shen puts it, laws and institutions in China ‘would strengthen, rather than limit, party leadership’ (Shen, 2000: 25). A Confucian focus on the moral individual is also present: where laws do not constrain Party members, their personal morals should do so. The traditional Confucian ideal of moral officials, combined with a Western notion of legality legitimates CPC’s authority. This might be considered distinct ‘Asian values’, a term often used in the context of authoritarian government in the East Asian region (see Cheung, 2000; De Bary, 1998; Rozman, 2014). In many Asian countries, Confucian administrative ideas are a profound cultural force distinct from a ‘Western-style democracy’ (Cheung, 2000: 4) and the rule of law tradition.

The rule of law (Rechtsstaat)

The Western tradition also originates around 2500 years ago, and despite vast variations and disjointedness, it can be regarded as a continuous tradition (see Tamanaha, 2004: 3). Personal morality and virtue are also at the heart of Western thought. However, morals and politics are treated as much less unified, and the role of rites is (almost) absent: in its place there is a strong reliance on ‘settling disputes in a regular manner according to rules [that] have already been laid down’ (Lyons, 1984: 194), i.e. a tradition focusing on law.

The foundations of morality and law

The importance of law in thinking about society, politics and morality surfaces in the earliest philosophical treatises. Thus, Plato, in his work Crito, narrates how Socrates, although sentenced to death, refuses to escape as that betrays his agreement with the law as the stable basis of the state (see Licht et al., 2007: 660). In The Republic, Plato (1980a) is concerned with the ideal state, and laws are regarded as the heart of good government. Where Confucianism has the sage-king, Plato argues for a wise philosopher-king (1980b: 1509) who is described as a lawgiver and rules by just laws. In The Laws, it reads: ‘The first-best society, then, [is] that with the best constitution and code of law’ (Plato, 1980a, 739b/c: 1324). The other founding philosopher, Aristotle, asks in his Politics, ‘whether it is more advantageous to be ruled by the best man or by the best law’ (Aristotle, 2000: 136/1286a.III.15); a virtuous monarch is perhaps superior, but ‘the rule of law is preferable to that of any individual’ (139/1287a.III.16.3). What is more, contrary to the good man, ‘the law has compulsive power’ (Aristotle, 1980: 272/1180a15); Aristotle closely links politics, ethics and law: ‘The true student of politics … is thought to have studied virtue above all things; for he wishes to make his fellow citizens good and obedient to the laws’ (1980: 24/1102a13). By means of laws, the state brings people to virtue and happiness. Aristotle even argues that moral training should be regulated by law so as to ensure that it is accomplished.

Compared to Confucianism, Plato and Aristotle take a fundamentally different stance towards law and regard it of prime relevance for the state as well as for personal morality.

Law is the means to link personal virtue and the state, and the state as the encompassing moral sphere is primarily a legal entity. An important argument for the reliance on laws is that they are based on reason and wisdom, and not dependent on personal desires. A contemporary of Plato, Democritus, already formulated the notion of the subjugation of all government and administration under the law (Owens, 1959: 143–144). The rule of law was established as a moral guide, albeit in a very broad sense. A specific issue was whether the monarch was subject to his own laws – a topic also discussed in Chinese Legalism. In medieval practice, the monarch’s rule became regarded as restrained by natural or divine law and customary law (see Tamanaha, 2012: 237). The thirteenth-century philosopher Thomas Aquinas argued, for instance, that it is logical for a monarch to adhere to his own good laws, as well as wise to do so in light of God’s final judgement (Aquinas, 1274/1978: 50). However, it also illustrates that in the Western tradition moral thought became primarily a matter of the Christian religion. Also in the Middle Ages, the first steps towards the protection of subjects against state power by means of law were taken: in particular, the English Magna Carta of 1215 is the (symbolic) founding step in this development.

Constitutions and the reliance on law

Since the Renaissance (i.e. 1500 AD onwards), political theory, constitutional thought and the development of legal theory have gone hand in hand. In the practice of government, the importance of law increased, and legal knowledge and skill became a requirement for civil servants (Raadschelders and Rutgers, 1999). The pervasive importance of law is reflected in Grotius’ influential The Law of War and Peace, in which he discusses lawful war: ‘Law here signifies nothing but what is just … a lawful thing is what is not unjust’ (Grotius, 1625/1949: 18).

In political thought, the relationship between social order, law and morality remained central. Avoiding strife and discord was, for instance, Thomas Hobbes’ (1651/1979) main reason to argue for an absolute monarch. However, John Locke, as the founder of liberalism, stressed that all laws require the ‘consent of the society’, and that ‘Where-ever Law ends, Tyranny begins’ (Locke, 1698/1988: 356, 400).

An important development was the rise of moral and political pluralism. The belief in Christian moral monism started to waver. Machiavelli’s treatise The Prince can be regarded as a major starting point (e.g. Berlin, 1998). He argued that there are different moralities in existence: one for the people and one for those in government (Berlin, 1998: 324). Over time, ‘many philosophers turned away from the classical search for the ultimate good, rejecting the view that any such single good exists’ (Tamanaha, 2004: 41). Nevertheless, from the early nineteenth century onwards, the search for a rationally founded morality remained strong, be it in terms of Kantianism, Utilitarianism or a renewed interest in (Aristotelian) virtue ethics.

Another important development concerns ‘constitutional principles’, in particular the separation of powers. Montesquieu, its famous founding author, in De L’esprit des Lois (The Spirit of the Law), refers to ‘political virtue’ and regards laws as present everywhere in the universe and a necessity for social life (Montesquieu, 1748/1994: 728, 234).

The previous anecdotic overview illustrates the long roots of what is nowadays referred to as ‘the rule of law’ as a core concept in Western thought. Especially since the rise of constitutionalism and codification in the eighteenth century, law became regarded as the source of freedom and justice.

The rule of law in recent debate

Although the rule of law can characterize Western thought, it is also a confusing term. A brief reflection on the contemporary debates can illustrate this.

To start with, there has been increasing effort to promote the rule of law in international praxis (see Mooney et al., 2010: 838, 840). It has been put forward to create ‘administrative justice’, to enable a transition to a market economy and democracy (Mooney et al., 2010: 842–844), and positively promote economic prosperity (see Haggard et al., 2008: 205). It is regarded as closely linked with the notion of ‘good governance’, as promoted by the World Bank and other international institutions for all governments (Licht et al., 2007: 660). Others argue that the rule of law cannot be introduced into any culture (see Grindle, 2007: 571; Mooney et al., 2010). The problem is that the notion of the rule of law itself has ideological and cultural connotations (see Kairyst, 2003: 309), and the characteristics attributed to it are extensive (see Mooney et al., 2010: 838) if not all-inclusive (see the definition by the United Nations, 2004: 4).¹⁰ This, as Tamanaha (2012: 236) points out, confines the concept’s meaning virtually to liberal democracies. It becomes even too specific to characterize Western thought. Tamanaha therefore proposes a limited and inclusive definition: ‘the sovereign, the state and its officials, are limited by the law’ (Tamanaha, 2012: 236; cf. Kairyst, 2003: 318).

Even then, there are demands linked to the achievement of the rule of law: for instance, that laws should be stated in general terms, must be generally known, and the like, and ‘(t)here must be mechanisms or institutions that enforce the legal rules when they are breached’ (Tamanaha, 2012: 233); in other words, there has to be a functioning administration and legal system.

Contrary to a broad concept, arguably, the most strict appearance of the rule of law is the Continental-European idea of the ‘Rechtsstaat’ (Morlino and Palombella, 2010: 7). Its core is that government relies on ‘a very strong and all-encompassing body of public law governing every administrative sphere’ (Painter and Peters, 2010: 22) and ‘the legality of administrative actions’ (Schram, 1971: 33). Administrative action is thus ideally limited to the execution of law, i.e. the application of general rules to particular cases. It represents the ultimate attempt to eradicate any personal factors (the rule of man) in administration. This brings us to what Tamanaha (2012: 236) refers to as the third command of the rule of law (next to government limited by law and formal legality): ‘rule of law, not man’.

The social scientific turn

The traditional image of a good ruler is that he or she is rational and able to control passions and emotions. The opposition between law as reason and personal rule as arbitrary and subjective has appeared in many guises over time. Essentially, the ideology is that the rule of law can protect against human weaknesses (prejudice, malice, ignorance) of monarchs, judges, bureaucrats and fellow citizens alike. However, this would imply that personal influences can be annihilated by the rule of law.

To ensure such objectivity there are formal criteria, such as the demand that laws are neutral with respect to specific individuals. The laws should also be considered legitimate by the people. This concerns the legitimacy of the administrative-political system making and executing the laws. Constitutional principles,¹¹ such as the separation of powers, safeguard against misuse of political power. However, the demand for neutral administration is troublesome, for it suggests that we can get rid of personal influences. Traditionally, this concerned the requirement for judges to be unbiased and unpartisan. The issue of ‘man’ being involved in executing law became more prominent with the growth of state activity. More and more governmental social tasks and responsibilities could not be regulated by law in every detail, with the inevitable result that there was more room for discretion by civil servants in the execution of the law. Around 1900 it was argued that there was a decline in the rule of law owing to the call for distributive justice (see Tamanaha, 2004: 68). Clearly the law is not simply neutral and self-executing, as it is impossible to annihilate ‘the human element in decision-making’ (Kairyst, 2003: 319). The extent to which public functionaries can be regarded as neutral (or partisan to the public interest) is a major debate within public administration. The ideal, nonetheless, has been a guiding principle throughout the history of Western thought, from Plato’s guardians to Hegel’s objective class and Weber’s ideal-type¹² bureaucrat (Weber, 1985). However, the rise of the social sciences, in particular, in the second half of the twentieth century resulted in increasingly empirical, rather than legal-normative, arguments. A vast literature was developed on the realities of discretionary power and the conjured nature of neutrality. In particular, in the study of public administration this turn from law towards a social scientific stance is preeminent; the idea that administration is simply the execution of law has long gone. A good example is the ongoing debate on the politics–administration dichotomy (Overeem, 2012). As with Western thought in general, within the study of public administration there are vast differences with regard to the importance adhered to law (particularly in the USA, the call to (re)incorporate law into the study of public administration is ongoing; see Beckett, 2007). Empirically, a strict dichotomy of rule of law and rule of man seems untenable, for, as Kairyst states, ‘the rule of law is not self-executing’ (Kairyst, 2003: 327). Cerase (2002: 148) points at the debates in the study of public administration starting in the late 1960s, rejecting administration as just instrumental, with efficiency as its value, and calling to incorporate justice and social equity as values. The tension between normative starting points and empirical reality is nowadays hardly disputed; however, it remains a core issue in the study (see Frederickson and Smith, 2003: 16). More surprising, it hardly seems to impact on the ideal of the rule of law. By the turn of the twenty-first century, there is a kind of constant fight against an instrumental approach to public administration in legal or managerial terms (see Jun, 2002: xiv), and there is a booming interest in public ethics and public values (see Beck Jørgensen and Rutgers, 2015).

To conclude this very brief exposition of the Western tradition, the rule of law is not in the end just a legal issue, but it is an ethical and political ideal¹³ concerning the behaviour of public functionaries and citizens alike.

Discussion: Man, morality and law

At the beginning of this article, the question was raised as to whether the Chinese and Western traditions can be adequately captured in terms of rule of law and rule of man, as is common both in the West and East (see Jenco, 2010: 181). It can be concluded that this is not the case: both traditions oppose the rule of individuals’ unreflected desires and emotions. The differences concern how to best avoid this. Confucianism relies primarily on moral officials (the exemplary person: see Frederickson, 2002; Yang¹⁴), whereas the Western tradition resorts to objective laws and institutions.

The traditions of the rule of morality and the rule of law are in this sense unified in their rejection of the ‘rule of man’ as possibly resulting in the corrupt and arbitrary use of power. The Confucian ideal starts with individual morality, but this does not (and never has) exclude an actual reliance on laws and regulations in practice: rule by law. Similarly, the Western tradition does not discard morality. The increased attention on civil servants’ ethics underlines this. The need to have responsible administrators is not new either, as exemplified by the so-called Friedrich-Finer debate in the mid-twentieth century on the need to trust professional administrators vs the reliance on institutions and neutral execution (see Stillman, 2010: 438).

So, whereas the rule of morality refers to an instrumental conceptualization of law in a context where morality is supposed to be anchored in the rule of morality, the rule of law starts from the perspective of institutional warranties, and in that context requires officials to have prudence and moral consideration. Both traditions can be captured by positive concepts: rule of man – understood as a person aligning his or her behaviour as a public functionary with private, selfish, unreflected, (morally) uninformed, unenlightened and subjective preferences and urges – is, and always has been, disdained.

There are nevertheless fundamental differences, especially regarding the intricate links between concepts and values. This does not imply that there are no good reasons why, for instance, a kind of rule of law is relevant to China (see Kairyst, 2003: 307), just as moral and professional administrators are relevant to the West. At the same time, authors such as Rajkovic (2012) understandably challenge the optimism (naïveté) of applying the rule of law within global governance, in particular a single all-encompassing form.

There are two kinds of warning: first, that the very notion of the rule of law lacks adequate reflection, resulting in a lack of awareness of its political and practical meaning; and second, that the rule of law is embedded in culture and tradition, and presupposes a ‘robust legal tradition’ whereby ‘people must believe in and be committed to the rule of Law’ (Tamanaha, 2004: 58, 246). In other words, it is or requires a specific morality (a tradition) to begin with. This explains why Grindle (2007: 571) wondered whether the rule of law is a precondition for good governance or if it is the outcome (see Haggard et al., 2008; Mooney et al., 2010). These authors show that the rule of law is not just a technical, legal issue, but that ‘complex systems of historical, social, political, and economic factors directly impact all rule of law reform efforts’ (Mooney et al., 2010: 849). China is actually regarded as an anomaly owing to the fact that it has a growing economy but no strong rule of law (Allen et al., 2005: 58; see Tucker, 2011).

Finally, Licht et al. (2007) conclude that some cultures are more easily suited to the rule of law than others, as they have different kinds of social institutions. One may wonder whether this also applies to a culture’s openness to the rule of morality. Despite the need for caution when it comes to the transferability of ideas, there is possibly a universal, pretty abstract ideal to be identified: good administration requires people of good morality, as well as a shared, objective¹⁵ and respected set of laws and regulations. It thus seems problematic to require either the rule of law or the rule of morality to stand alone to ensure justice; both traditions have a one-sidedness that must be compensated for, both in the theory and praxis of government. The two traditions are at the same time complementary and fundamentally different.

Footnotes

Funding

This research received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.

Notes

Lijing Yang, PhD., obtained her doctorate in June 2015 from University of Amsterdam. Her PhD research compares the civil service ethos in China and the Netherlands, focusing on public values, administrative tradition, and good government. Yang has published articles in Public Integrity and International Public Management Journal, and has a forthcoming article in International Journal of Public Administration.

Mark R. Rutgers is Professor of the Philosophy of Public Administration and Dean of the Graduate School of Social Sciences at the University of Amsterdam. His main interests include the nature of the study of public administration, public values, the oath of office and the history of administrative thought. He has published articles in Administration and Society, Administrative Theory and Praxis and International Review of Administrative Sciences, among others.

References

Allen

Qian

(2005) Law, finance, and economic growth in China. Journal of Financial Economics 77(1): 57–116.

Aquinas T (1274/1978) On Kingship: To the King of Cyprus (Phelan GB, transl.). Toronto: Pontifical Institute of Mediaeval Studies.

Aristotle (1980) The Nicomachean Ethics, Oxford: Oxford University Press.

Aristotle (2000) Politics (Jowett B, transl., with Introduction, Analysis, and Index by Davis HWC). New York: Dover Publications.

Beck Jørgensen

Rutgers

(2015) Public values: Core or confusion? Introduction to the centrality and puzzlement of public values research. The American Review of Public Administration 45(1): 3–12.

Beckett

(2007) Five great issues in public law and public administration. In: Rabin

Hildreth

Miller

(eds) Handbook of Public Administration, 3rd edn. Boca Raton, FL: Taylor & Francis, pp. 697–719.

Berlin

(1998) The originality of Machiavelli. In: Hardy

Hausheer

(eds) The Proper Study of Mankind: An Anthology of Essays, New York: Farra, Straus and Giroux, pp. 269–325.

Bevir

Rhodes

RAW

Weller

(2003) Traditions of governance: Interpreting the changing role of the public sector. Public Administration 81(1): 1–17.

Boyer

(1990) Tradition as Truth and Communication: A Cognitive Description of Traditional Discourse, Cambridge: Cambridge University Press.

10.

Cao

(1948) Han Fei Fazhi Lun [Han Fei’s Thought of the Rule of Law], Shanghai: Chung Hwa Book (Zhonghua Shuju).

11.

Cerase

(2002) The demise and foreseeable comeback of public administration. In: Jun

(ed.) Rethinking Administrative Theory: The Challenge of the New Century, Westport & London: Praeger, pp. 143–158.

12.

Chen

(2007) Transformation of Chinese law: From formal to substantial. Hong Kong Law Journal 37: 689–740.

13.

Chen

(1971) The May Fourth Movement in Shanghai (Vol. 9), Leiden: Brill Archive.

14.

Cheung

(2000) Globalization versus Asian values: Alternative paradigms in understanding governance and administration. Asian Journal of Political Science 8(2): 1–15.

15.

Cheung

ABL

(2010) Checks and balance in China’s administrative traditions: A preliminary assessment. In: Painter

Peters

(eds) Tradition and Public Administration, Basingstoke: Palgrave Macmillan, pp. 31–43.

16.

Collier

Mahon

(1993) Conceptual ‘stretching’ revisited: Adapting categories in comparative analysis. American Political Science Review 87(04): 845–855.

17.

Confucius (2009) The Confucian Analects, the Great Learning and the Doctrine of the Mean (Legge J, transl.). New York: Cosimo Inc.

18.

De Bary

(1998) Asian Values and Human Rights: A Confucian Communitarian Perspective, Cambridge, MA: Harvard University Press.

19.

Denecke

(2010) The Dynamics of Masters Literature: Early Chinese Thought from Confucius to Han Fei, Cambridge, MA: Harvard University Asia Center for the Harvard-Yenching Institute.

20.

Frederickson

(2002) Confucius and the moral basis of bureaucracy. Administration and Society 33(4): 610–228.

21.

Frederickson

Smith

(2003) The Public Administration Theory Primer, Cambridge MA: Westview.

22.

Greer

Lim

(1998) Confucianism: Natural Law Chinese Style? Ratio Juris 11(1): 80–89.

23.

Grindle

(2007) Good enough governance revisited. Development Policy Review 25(5): 553–574.

24.

Grotius

(1625/1949) The Law of War and Peace (De Jure Belli ac Pacis), New York: Walter J. Black.

25.

Guanzi (1985) Guanzi: Political, Economic, and Philosophical Essays from Early China: A Study and Translation by W. Allyn Rickett, Princeton, NJ: Princeton University Press.

26.

Haggard

MacIntyre

Tiede

(2008) The rule of law and economic development. Annual Review of Political Science 11: 205–234.

27.

Han Fei (1959) The Complete Works of Han Fei-tzu, A Classic of Chinese Political Science (Liao WK, transl. from Chinese, with Introduction, Notes and Index). London: Arthur Probsthain.

28.

Hobbes

(1651/1979) Leviathan, London: Dent.

29.

Hwang

(1999) Filial piety and loyalty: Two types of social identification in Confucianism. Asian Journal of Social Psychology 2(1): 163–183.

30.

Jenco

(2010) ‘Rule by man’ and ‘rule by law’ in early Republican China: Contributions to a theoretical debate. The Journal of Asian Studies 69(1): 181–203.

31.

Jiang CY (2000) The political thoughts of Han Feizi (Han Feizi de zhengzhi sixiang). Beijing: Beijing Normal University Publishing Group.

32.

Jun

(2002) Introduction: Administrative theory in the new century. In: Jun

(ed.) Rethinking Administrative Theory: The Challenge of the New Century, Westport & London: Praeger, pp. xi–xxiv.

33.

Kairyst

(2003) Searching for the rule of law. Suffolk University Law Review XXXVI(2): 307–329.

34.

Lee

Lai

(1977) Chinese conceptions of law: Confucian, legalist, and Buddhist. Hastings Law Journal 29(6): 1307–1930.

35.

Liang

(2011) Xinhai Geming Yilai de Zhongguo Fazhi Xiandaihua [China’s Legal Modernization since Revolution of 1911 – Historical evolution and practical logic]. Hebei Law Science 29(9): 22–28.

36.

Liang

(1989) Explicating law: A comparative perspective of Chinese and Western legal culture. Journal of Chinese Law 3: 55–82.

37.

Licht

Godlschmdit

Schwarts

(2007) Culture rules: The foundations of the rule of law and other norms of governance. Journal of Comparative Economics 35: 659–688.

38.

Locke

(1698/1988) Two Treatises of Government, Cambridge: Cambridge University Press.

39.

Lyons

(1984) Ethics and the Rule of Law, Cambridge: Cambridge University Press.

40.

MacCormack

(1996) The Spirit of Traditional Chinese Law, Athens: University of Georgia Press.

41.

Michael

(1962) The role of law in traditional, nationalist and communist China. The China Quarterly 9(1): 124–148.

42.

Montesquieu (1748/1994) De l’Esprit des Lois. Oeuvres complètes I, Paris: Gallimard.

43.

Mooney

Schönteich

Windsor

Rausch

(2010) Promoting the rule of law abroad: A conversation on its evolution, setbacks and future challenges. The International Lawyer 244(2): 837–856.

44.

Morlino

Palombella

(2010) Rule of Law and Democracy: Inquiries into Internal and External Issues, Leiden: Brill.

45.

Orts

(2001) The rule of law in China. Vanderbilt Journal of Transnational Law 34(1): 43–116.

46.

Overeem

(2012) The Politics – Administration Dichotomy: Toward a Constitutional Perspective, Boca Raton: CRC Press.

47.

Owens

(1959) A History of Ancient Western Philosophy, Englewood Cliffs, NJ: Prentice Hall.

48.

Painter

Peters

(2010) Tradition and Public Administration, New York: Palgrave Macmillan.

49.

Peerenboom

(2002) China's Long March Toward Rule of Law, Cambridge, UK: Cambridge University Press.

50.

Plato (1980a) Laws. In: Hamilton

Cairns

(eds) Plato: The Collected Dialogues, Including the Letters, (10th edn). Princeton, NJ: Princeton University Press, pp. 1225–1516.

51.

Plato (1980b) Republic. In: Hamilton

Cairns

(eds) Plato: The Collected Dialogues, Including the Letters, (10th edn). Princeton, NJ: Princeton University Press, pp. 575–844.

52.

Raadschelders

Rutgers

(1999) The waxing and waning of the state and its study: Changes and challenges in the study of public administration. In: Kickert

WJM

Stillman

II (eds) The Modern State and its Study: New Administrative Sciences in a Changing Europe and United States, Cheltenham: Edward Elgar, pp. 17–35.

53.

Rajkovic

(2012) ‘Global law’ and governmentality: Reconceptualizing the ‘rule of law’ as rule ‘through’ law. European Journal of International Relations 18(1): 29–52.

54.

Raz

(2009) The rule of law and its virtue. In: Kavanagh

Oberdiek

(eds) Arguing about Law, London: Routledge, pp. 181–192.

55.

Ren

(1997) Tradition of the Law and Law of the Tradition: Law, State, and Social Control in China, Westport, CT: Greenwood Publishing Group.

56.

Rozman

(2014) The East Asian Region: Confucian Heritage and its Modern Adaptation, Oxford: Princeton University Press.

57.

Schram

(1971) Ideology and politics: The Rechtsstaat idea in West Germany. The Journal of Politics 33(01): 133–157.

58.

Schwartz

(1999) A theory of cultural values and some implications for work. Applied Psychology: An International Review 48(1): 23–47.

59.

Shen

(2000) Conceptions and receptions of legality: Understanding the complexity of law reform in modern China. In: Turner

Feinerman

Guy

(eds) The Limits of the Rule of Law in China, Seattle: University of Washington Press, pp. 20–44.

60.

Shils

(2006) Tradition, Chicago, IL: University of Chicago Press.

61.

Shun

(1993) Jen and Li in the ‘Analects’. Philosophy East and West 43(3): 457–479.

62.

Smelser

Baltes

(2001) International Encyclopedia of the Social & Behavioral Sciences, Oxford: Elsevier.

63.

Stillman

II (2010) Public Administration: Concepts & Cases (9th/international edn), Boston, MA: Houghton Mifflin.

64.

Tamanaha

(2004) On the Rule of Law: History, Politics, Theory, Cambridge: Cambridge University Press.

65.

Tamanaha BZ (2012) The history and elements of the rule of law. Singapore Journal of Legal Studies (December): 232–247.

66.

The State Council of the People’s Republic of China (2014) Highlights of communique of 4th plenary session of CPC Central Committee. Available at: http://english.gov.cn/news/top_news/2014/10/24/content_281475000839813.htm (accessed 25 March 2015).

67.

(2000) Implications of the rise of ‘Confucian’ East Asia. Daedalus 129(1): 195–218.

68.

Tucker

(2011) ‘Guanxi!’ – ‘Gesundheit!’ An alternative view on ‘the rule of law’ panacea in China. Vermont Law Review 35: 689–715.

69.

United Nations (2004) The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies: Report of the Secretary General. UN SC, UN Doe, S/2004/616.

70.

Weber

(1985) Wirtschaft und Gesellschaft [Society and Economy], (5th edn). Tübingen: J.C.B. Mohr.

71.

Winston K (2005) The internal morality of Chinese legalism. Singapore Journal of Legal Studies (December): 313–347.

72.

Yao X (2003) Preface. In: Ta Hsüeh and Chung Yung (The Highest Order of Cultivation and On the Practice of the Mean) (Plaks A, transl.). London: Penguin Books, vii–xxi.

73.

Yesilkagit

(2010) The future of administrative tradition: Tradition as ideas and structure. In: Painter Peters

(eds) Tradition and Public Administration, Basingstoke: Palgrave Macmillan, pp. 145–157.

74.

Zhang D (2002) Key Concepts in Chinese Philosophy (Ryden E, transl.). New Haven, CT: Yale University Press.

75.

Zhang