Rule of / by law
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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:
1.
"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."
2.
"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":
"Xi's 'rule of law' meeting expected to strengthen Communist Party role"
Here are some other articles from recent days that pertain to this issue of fǎzhì 法治 (lit., "law-rule"):
"Presumed Guilty in China’s War on Corruption, Targets Suffer Abuses"
"What China Means by ‘Rule of Law’"
"China's Communist Party Plenum Focuses On Rule Of Law, But Not As The West Sees It"
"4th Plenum: Rule of Law with Chinese Characteristics"
"‘Rule of Law’ or ‘Rule by Law’? In China, a Preposition Makes All the Difference"
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]
David Moser said,
October 21, 2014 @ 3:51 am
Important topic, not only from a translation standpoint. This is a fascinating moment in the recent history of PRC governance, and the problem of translation and language is brought into play because the Party is waging this PR campaign in both English and Chinese. Just check out the tortured language and logic of this article from the Party-mouthpiece newspaper Global Times. They are very aware of the distinction Victor is highlighting in this post, and they tie themselves in knots trying to maintain that the Party is actually going to subject itself to the checks and balances of a legal system — gradually, incrementally, cautiously, of course. Sure.
http://www.globaltimes.cn/content/887350.shtml
By the way, when you go to this English language webpage, note that above the article there are social networking links for Twitter and Facebook. Both of these are blocked in mainland China, yet Global Times place these links on their English webpages. What does this tell you?
Ginger Yellow said,
October 21, 2014 @ 6:46 am
I suspect one reason rule of law is more familiar in the English speaking world is that many (most?) English-as-a-first-language countries are common law jurisdictions. Rule by law is more of a civil law concept, in that, to use the cliche, in common law everything is permitted which is not forbidden, while in civil law everything is forbidden which is not permitted. It's much easier to capriciously exercise power under the colour of law in the latter framework. I think the concept, if perhaps not the exact phrasing, would be very familiar in a western civil law jurisdiction like Italy, where the extremely large and complex statute book serves to empower the bureaucracy and those with enough money or connections to navigate it.
Victor Mair said,
October 21, 2014 @ 7:50 am
"What Does China Mean by 'Rule of Law'?"
http://www.foreignpolicy.com/articles/2014/10/20/what_does_china_mean_by_rule_of_law
Mr Punch said,
October 21, 2014 @ 10:32 am
See, this is why so many people use that imprecise/inaccurate definition of "passive voice." "Rule by law" implies rulers who are using law; in "rule of law" it's just the law, sitting there. I'd guess, by the way, that "rule of law" is most commonly preceded by "restore" — its antonym is "chaos" or "anarchy," something suggesting an absence of civil/political order. In that sense, it's a broader, not narrower, concept than "rule by law."
J. W. Brewer said,
October 21, 2014 @ 11:43 am
"Rule of law" in English is a fixed idiom and one could debate whether its meaning is strictly compositional. At a minimum, both "rule" and "law" are words of quite wide semantic scope and you can't understand the idiom without knowing which of the available meanings for those words to pick out for compositional analysis. "Rule by law" is not afaik a fixed idiom in English, and it may be that there is no standard English fixed idiom with the relevant meaning. It sounds to me like "rule by law" is intended to imply some sort of contrast with "rule by X" (as a description of the prior situation which the PRC is attempting to evolve past), but I'm not certain what the X would be. Perhaps "fiat"? It may of course be somewhat delicate to figure out how to describe the desired new state of affairs when there may still be political taboos about excessively accurate description of the current/prior state of affairs. Sometimes the most effective way for badly-governed countries to evolve in a positive direction requires a certain amount of hypocritical pretense that the changes being made are merely incremental and are a clarification rather than repudiation of the policies of the past, and obfuscatory language making such hypocritical pretense possible may in some sense be admirable, because well-suited to the practical needs of achieving a positive result.
For proper names of political entities, the traditional English practice has been "literal" translation, e.g. referring in certain contexts to the former East Germany as the "German Democratic Republic" without regard to the fact that it was neither "democratic" nor a "republic" in the standard English senses of those words (perhaps applying a more general rule that proper names are inherently arbitrary?). But for things like this a translation that sounds odd and unidiomatic to the Anglophone ear might be just the ticket. It would be not unlike the Cold War practice of calquing bits of political jargon ("right deviationist," "capitalist roader," that sort of thing) with results that sound a bit odd in English precisely because their referent is not one that is extant or at least prominent in the political discourse of Anglophone countries.
Victor Mair said,
October 21, 2014 @ 8:52 pm
A friend commented: "The of/by distinction sounds Jesuitical."
A closer look at the Wikipedia article on "Rule of law":
https://en.wikipedia.org/wiki/Rule_of_law#Meaning_and_categorization_of_interpretations
======
The ancient concept of rule of law can be distinguished from rule by law, according to political science professor Li Shuguang: "The difference….is that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic fashion."[30]
[30] = Tamanaha, Brian. On the Rule of Law. "[http://books.google.com/books?id=p4CReF67hzQC&pg=PA3&dq=Tamanaha+and+%22rule+of+law%22+and+%22rule+by+law%22&ei=Vlf6SYjNMJviygSxqOnRBg On the Rule of Law]", page 3 (Cambridge University Press, 2004).
DMT said,
October 21, 2014 @ 9:52 pm
Hong Kongers sometimes talk about "rule of law" (法治) as one of the defining characteristics of Hong Kong society and government, in contrast with the corrupt personal rule thought to be characteristic of the mainland PRC.
Chinese (not just HK) writings on political theory sometimes use 法制 to mean "rule by law," in explicit contrast to "rule of law" (法治). The two terms are homophonous in MSM, but not in Cantonese (faat3zi6 法治 / faat3zai3 法制).
Adrian Bailey said,
October 22, 2014 @ 5:05 am
I'd never heard the expression "rule by law" before. JWB nails it, I think: "rule of law" is an idiom, the name of a (somewhat nebulous) concept that we feel is ingrained in British society and the (unwritten) British constitution, while "rule by law" is a calque or coinage describing a form of government.
Looking through the ghits, I see: "China's Communist Party is meeting for a plenary session focused on so-called fazhi, or rule of law, and yifa zhiguo, or rule by law."
Ryan Mitchell, Esq. said,
October 22, 2014 @ 5:13 am
It is gratifying to see this important and complex topic taken up by so many China-watchers. Two points should probably be taken into account, however, when arguing for the "rule by law" translation of "Fazhi."
1. The "rule by law" concept is actually far more widespread and well-pedigreed than is often admitted. The main German term for legally-bound governance is Rechtstaat, which means something like "legal state"….but not Anglo-American "rule of law" as an abstract endowment of individuals with all-trumping (Lockeian) rights. Both China and Japan borrowed heavily from this German concept. See, e.g. Meryll Dean, "Japanese Legal System", 513 (2014 ed) ("the major distinction between the rule of law underlying traditional Western constitutionalism and the Rechtstaat or rule by law of German and Japanese origin is where power and rights are vested").
2. Ambiguity is such an important part of Chinese official communication that it seems shortsighted not to acknowledge this in translation work. The precise value of a term such as "Fazhi" is that it does convey different meanings to different people. More importantly, it has no practical meaning until one is determined by political decisions. Think of it as a big sticker saying "Law – TBA". This problem is hinted at briefly in the post above with reference to the "good guys'" more Western use of the term …. but I do not think that imposing alien prepositions is the best way to capture the elasticity of a concept under debate.
Subodh said,
October 22, 2014 @ 6:16 am
It is not the 4th Plenary Session of the "18th Party Congress" but the 18th Central Committee of the CPC. This committee was elected at the 18th Party Congress held November 2012. It periodically holds meetings – this is the 4th one.
julie lee said,
October 22, 2014 @ 12:06 pm
As is seen above, depending on who uses it, the word "fazhi 法治 ”is used to mean "rule of law" or "rule by law". The 20th century Chinese political philosopher Mou Zongsan pointed out that "fazhi法法“ (rule of/by law) is not a good term in Chinese because it connotes the historically infamous and long-discredited Legalist school of thought (or School of Law) of ancient China, which the Han dynasty (3rd cent. BC) historian Sima Qian described as "mean, sinister, and cruel". Mou pointed out that fazhi 法治（rule of / by law) was a term used in contrast to Confucianist "rule of by propriety" or "lizhi禮治"。
Fazhi 法治 (rule of/by law) was used in contrast to lizhi (rule of/by propriety) 禮治，the former preached by the Legalists, the latter by the Confucianists. Rule of /by law was implemented through punishment, rule of/by propriety implemented through education. Confucius taught that a properly educated person would desist from doing wrong not from fear of punishment but from a sense of shame. Instead of the police, the chief deterrent of crime would be one's own sense of shame.
Ben Hemmens said,
October 22, 2014 @ 11:29 pm
@Ryan Mitchell
My impression is that the meaning of Rechtsstaat has probably evolved somewhat. I'm sure it was/is used on the one hand to refer to all the modern versions of the legal systems in the German-speaking countries, since, say the reforms of Frederick the Great and Maria Theresia/Josef II, ie, covering codified systems in which everyone was suposed to be equal before the law, but the law was from an unashamedly absolutist source. On the other hand, if used in a current context, it could also mean the current legal order, which I would say makes individual rights as fundamental as any system in the world. Die Würde des Menschen ist unantastbar in Germany and the full incorporation of the European Convention on Human Rights into the Austrian constitution.
George said,
October 23, 2014 @ 8:58 am
At the risk of introducing unwelcome levity into discussion of a very important question, I can't help but be reminded by the headline of the Diplomat article linked to in this post ("4th Plenum: Rule of Law with Chinese Characteristics") of the use by a number of fellow expats in China a decade ago of the expression 'with Chinese characteristics' as a more mellifluous alternative to 'my arse'.
George said,
October 23, 2014 @ 9:09 am
This could be in just about any context, by the way:
"I met your ex's new boyfriend; he seems an OK guy"
"Ok with Chinese characteristics you mean…."
TZK said,
October 23, 2014 @ 11:35 am
I've sometimes heard Chinese lawyers contrast 依法治国 with 以法治国. The latter phrase has just 190,000 ghits, so I'm not sure how common this actually is (although I've heard it independently from more the one person). It likely to be a translation based on the English rule of/by law.
The way my Chinese law professor explained it to me was the same way it's been explained above: 依法治国 (rule of law) indicates that the government creates laws that explain how things are going to work and then follows those laws; 以法治国 (rule by law) indicates that the government first makes an arbitrary decision about the outcome it desires and then finds/interprets/creates/ignores laws as expedient to achieve that interpretation — i.e. the law exists as a tool for the government to enact its will.
If that interpretation is widespread (I know a lot of Chinese lawyers but they aren't usually very philosophical, so it's hard for me to tell), then the proper translation for the theme of the plenum would be "rule of law," just as the proper translation of 民主 is "democracy" (as someone pointed out above). To translate them otherwise would obscure the fact that the Chinese government really abuses both the terms 依法 and 民主 — and the fact that plenty of a Chinese people object to their use in this way suggests it's not just a translation issue.
J. W. Brewer said,
October 23, 2014 @ 3:25 pm
I don't know that much about the continental Rechtsstaat tradition, but I would say that "rule of law" in the Anglo-American tradition is more of a process-oriented concept than a substantive one. We would obviously like to believe that all good things tend to coexist and cohere, but one can have a regime that is reasonably rule-of-law-like that still enforces substantively unjust and even odious laws – but only those unjust laws that were adopted in a procedurally regular fashion, were knowable in advance so that those subject to them had at least the non-Kafkaesque option to swallow their dignity and stay out of trouble by complying with them, etc.
JK said,
October 24, 2014 @ 8:34 am
Apparently mainland Internet users have contrasted "fazhi" with "rule of man", and I would assume ordinary people are worried about "rule of man" getting out of control.
I am a little puzzled about how Prof Mair reached his conclusion from the evidence he presents (no firm definition for "rule by law" and the advice of one colleague), as given the evidence I arrived at the opposite conclusion. An argument for "rule by law" would also have to take into account that official mainland English media seems to be consistent in using "rule of law" at this point.
I would also like to know what to do with this doozy: 中国特色社会主义法治体系