Because it has been very much in the news in recent days, the question of how to translate the Chinese term fǎzhì 法治 (lit., "law-rule / govern") has come up. Should it be "rule of law" or "rule by law"?
First of all, let's look at the numbers:
"rule of law" 6,080,000 ghits
Quick definition from Google: "the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws."
"rule by law" 2,070,000 ghits
No quick definition available; I couldn't even find "rule by law" in the usual legal dictionaries that I consult.
If someone asked me to come up with a brief definition of "rule by law", I would say something like "using law for the purpose of ruling". That's very different from the "rule of law", whereby the actions of all members of a society, including those who rule, are constrained by legal standards.
A friend of mine whose husband is a professor of law at a major American university said that she often hears him talking about "rule of law", but she has never heard him use the expression "rule by law".
It is clear that the notion of "rule of law" is much more important than "rule by law" in the English speaking world.
Another friend who is herself a lawyer put it this way:
"Rule of law" and "rule by law" are different concepts, but only by connotation. By connotation, "rule of law" is generally considered a subset of "rule by law". "Rule by law" implies a codified system (whether oral, written, or both, and whether by dictatorial fiat or democratically-generated legislation or some other system). "Rule of law" implies fairness and predictable application. "Rule by law" would include, for example, rule under Hitler's Nuremberg Laws (Nürnberger Gesetze), which were neither fair nor predictably applied.
N.B.: "rule of law" is also known as "nomocracy" (look that up), but "rule by law" is different from "nomocracy"
Based on the information gathered above, the title of this article in the Chicago Tribune should have have translated fǎzhì 法治 as "rule by law" rather than "rule of law":
Here are some other articles from recent days that pertain to this issue of fǎzhì 法治 (lit., "law-rule"):
The last article — at least for linguists! — is the most persuasive in dealing with this very tricky subject.
The reason the question of fǎzhì 法治 has been such a hot topic for the past week is that it is the theme of the 4th Plenum (the Fourth Plenary Session of the 18th Party Congress), which is being held in Beijing from Monday to Wednesday of this week. But we must be aware that the theme of the 4th Plenum is not actually fǎzhì 法治 itself, but the longer expression yī fǎ zhì guó 依法治国, which I shall return to momentarily.
From a colleague who specializes in Chinese law as it pertains to politics and government:
Standing alone, it (法治) translates best as “rule of law.” When the good guys (my friends in legal academe) in China use the term, they mean "rule of law". When the regime uses it, well, it means something a good deal less (“rule by law” if you’re lucky…)…., but then the regime uses mínzhǔ 民主 too… and we still translate that as “democracy.”
In certain contexts, I would translate it (法治) differently—for example, I would render “依法治国“ as “ruling the country by law” thus implicitly taking 法治 as “rule by law.”
I need to point out that, standing alone as a grammatical term, fǎzhì 法治 is a noun, whereas, in the phrase yī fǎ zhì guó 依法治国 ("rule the country by / through / relying on / depending on / according to law"), grammatically fǎ 法 is a noun and zhì 治 is a verb. In yī fǎ zhì guó 依法治国, the preposition is explicit; in fǎzhì 法治, the syntactical relationship between the constituent morphemes fǎ 法 and zhì 治 is ambiguous.
Note that fǎzhì 法制 is an exact homophone of fǎzhì 法治, but it means something rather different, viz., "legal system".
Conclusion: When fǎzhì 法治 is being used to designate the application of law as it is conceived of by the Chinese Communist Party, I would be very careful always to translate it as "rule by law". When we are referring to the application of law as it is conceived of in the West, then I would be careful to translate it as "rule of law".
[Hat tip Josh Chin; thanks to Jacques deLisle, Rebecca Hamilton, and Carol Conti-Entin]