1 Governance: The World Bank’s Experience (Washington: The World Bank, 1994).
2 Constitution of the People’s Republic of China (Adopted on December 4, 1982, by the Fifth National People’s Congress of the People’s Republic of China at its Fifth Session) (Beijing: Foreign Languages Press, 1983).
3 Jiang Zemin, “Report at the 15th National Congress of the Communist Party of China,” September 12, 1997.
4 The Fourth Plenary Session of the Eighteenth CPC Central Committee in 2014 was the first time that a Party session centered on rule of law. The general target is to form a system serving “the socialist rule of law with Chinese characteristics” and build a country under “the socialist rule of law.” See Communiqué of the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China, October 23, 2014.
5 Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004), 55.
6 Sheryl Gay Stolberg, “Justice Anthony Kennedy’s Tolerance Is Seen in His Sacramento Roots,” New York Times, June 21, 2015.
7 Erwin Chemerinsky, “Bush v. Gore Was Not Justiciable,” Notre Dame Law Review 76, no. 4 (2000): 1093–1112.
8 Elise Viebeck, “‘Get a Grip’: Republicans Seize on Booker Comment That Kavanaugh Supporters Are ‘Complicit’ in ‘Evil,’” Washington Post, July 26, 2018.
9 Michael Kruse, “The Weekend at Yale That Changed American Politics,” Politico (September/October 2018); Jeffrey Toobin, “The Conservative Pipeline to the Supreme Court,” New Yorker, April 17, 2017.
10 Tamanaha, 7.
11 Judith N. Shklar, “Political Theory and the Rule of Law,” in Allan Hutchinson and Patrick Monahan, eds., The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987).
12 John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988).
13 Joseph Raz, “The Rule of Law and Its Virtue,” in The Authority of Law: Essays on Law and Morality, 2nd ed. (Oxford: Oxford University Press, 2009), 210–29.
14 Edward Jenks, “The Myth of Magna Carta,” Independent Review 4, no. 14 (1904).
15 John Rawls, The Law of Peoples, with “The Idea of Public Reason Revisited”, (Cambridge: Harvard University Press, 1999).
16 Brian Z. Tamanaha, “The History and Elements of the Rule of Law,” Singapore Journal of Legal Studies (December 2012): 232–47.
17 Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1996).
18 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Chicago: University of Chicago Press, 2005); Political Theology II: The Myth of the Closure of Any Political Theology, trans. Michael Hoelzl and Graham Ward (Cambridge: Polity, 2008).
19 It is important to note, of course, that Schmitt’s doctrine of sovereignty is contested by others, such as Hannah Arendt and Michel Foucault.
20 See Tamanaha, On the Rule of Law; James, R. Stoner, Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Lawrence, Kan.: University Press of Kansas, 1992).
21 Tamanaha, On the Rule of Law, 57.
22 Max Radin, “The Myth of Magna Carta,” Harvard Law Review 60, no. 7 (September 1947): 1060–91.
23 One example is the Lincoln-Douglas debates in 1858, a few years prior to the Civil War. Stephen Douglas held that democratic majorities in each state had the right to vote whether to adopt or reject a state constitution which prohibited slavery. Abraham Lincoln, by contrast, appealed not to the Constitution but to the Declaration of Independence, which asserts that “all men are created equal.” See Francis Fukuyama, Identity: The Demand for Dignity and the Politics of Resentment (New York: Farrar, Straus and Giroux, 2018).
24 Tamanaha, On the Rule of Law.
25 A. V. Dicey and Emlyn Capel Stewart Wade, Introduction to the Study of the Law of the Constitution, 10th ed. (London: Macmillan, 1959).
26 “CPC Sets New Blueprint for Rule of Law,” Xinhua News Agency, October 23, 2014.
27 Aristotle, Politics, trans. Benjamin Jowett (Oxford: Oxford University Press, 1963), 140.
28 Aristotle, On Rhetoric: A Theory of Civic Discourse, trans. George A. Kennedy (Oxford: Oxford University Press, 2006).
29 Aristotle, Nicomachean Ethics, trans. Roger Crisp (Cambridge: Cambridge University Press, 2000), 113–14.
30 Montesquieu, The Spirit of the Laws (Cambridge: Cambridge University Press, 1989).
31 Jeremy Bentham, Of Laws in General, in The Collected Works of Jeremy Bentham, ed. H. L. A. Hart (London: Athlone, 1970); John F. Manning, “Justice Scalia and the Idea of Judicial Restraint,” Michigan Law Review 115, no. 6 (2017): 747–82.
32 David A. Kaplan, The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution (New York: Crown, 2018).
33 Tamanaha, On the Rule of Law.
34 Tamanaha, 96.
35 Yang Xiao, “Singapore Academy of Law Annual Lecture 2003: Economic Development and Legal Evolution in China,” Singapore Academy of Law Journal 16, no. 1 (2004): 1.
36 Ji Weidong, “The Judicial Reform in China: The Status Quo and Future Directions,” Indiana Journal of Global Legal Studies 20, no. 1 (2013): 185–220.
37 China News Agency, “Meng Jianzhu: The Intelligent Judicial Assistance System Will Not Replace Judge’s Independent Judgement (zhineng fuzhu banan xitong buhui tidai sifa renyuan duli panduan),” July 11, 2017.
38 Harold J. Laski, The Rise of European Liberalism (London: Allen and Unwin, 1936).
39 Leo Strauss, Natural Right and the History (Chicago: University of Chicago Press, 1953), 234.
40 Adam Smith, Lectures on Jurisprudence, ed. R. L. Meek, D. D. Raphael, and P. G. Stein (Oxford: Clarendon Press, 1978), 156.
41 A. V. Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 1915).
42 The Collected Works of F. A. Hayek, vol. 2, The Road to Serfdom: Text and Documents: The Definitive Edition (London: Routledge, 2014); Friedrich A. Hayek, Law, Legislation and Liberty, vol. 2, The Mirage of Social Justice (Chicago: University of Chicago Press, 2012); Friedrich A. Hayek, “The Political Ideal of the Rule of Law,” in The Collected Works of F. A. Hayek, vol. 15, The Market and Other Orders (Chicago: University of Chicago Press, 2014).
43 “Urban-Rural Gap of Annual Disposable Income Narrowed in 2016,” Xinhua News, January 20, 2017; Damian Tobin, “Inequality in China: Rural Poverty Persists as Urban Wealth Balloons,” BBC News, June 29, 2011.
44 Xi Jinping, “Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era,” October 18, 2017.
45 “China’s Constitution Amendments to Have Far-Reaching Influence,” Xinhua News, December 28, 2003.
46 Caijing Zhang Weiying, “Restricting Government Taxation Is a Precondition of a Society Based on Rule of Law,” 2011; Mao Yushi, “Stop Sticking to State-Owned Enterprises (buyao zai mixin guoqi),” FTChinese, December 29, 2018.
47 Mark Edward Lewis, The Early Chinese Empires: Qin and Han, (Cambridge: Harvard University Press, 2009), 30.
48 Lewis, 19.
49 Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964).
50 Dingxin Zhao, The Confucian-Legalist State: A New Theory of Chinese History (New York: Oxford University Press, 2018).
51 Dingxin Zhao, 275.
52 Fritz Kern, Kingship and Law in the Middle Ages (Clark, N.J.: Lawbook Exchange, 2006).
53 Tamanaha, 24.
54 For example, Mencius held (book 1, part B) that the murder of the tyrannical last king of the Shang was the punishment of the outcast rather than regicide.
55 For a detailed historic explanation of this Confucian-legalist tradition, see Michael Loewe, The Government of Qin and Han Empires: 221 BCE–220 CE (Indianapolis: Hackett, 2006); Dingxin Zhao, The Confucian-Legalist State; and from a liberal perspective, Do Chull Shin, Confucianism and Democratization in East Asia (Cambridge: Cambridge University Press, 2011); Joseph R. Levenson, Confucian China and Its Modern Fate: A Trilogy (Berkeley: University of California Press, 1968).
56 For examples see Wang Jing, Zhon Guo Gu Dai Dao De Fa Lv Hua Yan Jiu, The Legalization of Morality in Ancient China.
57 Ronald Dworkin, Political Judges and the Rule of Law, Maccabean Lecture in Jurisprudence, 1978 (London: British Academy, 1980).
58 Tamanaha, 84.
59 See Michael J. Sandel, Liberalism and the Limits of Justice, 2nd ed. (Cambridge: Cambridge University Press, 2010); Alastair C. MacIntyre, After Virtue (London: Bloomsbury, 2014); Thomas Piketty, Capital in the Twenty-First Century, trans. Arthur Goldhammer (Cambridge; Belknap, 2017); Charles Murray, Coming Apart: The State of White America, 1960–2010 (New York: Crown Forum, 2012); Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Simon and Schuster, 2000).
60 Jennie Neufeld, “Alexandria Ocasio-Cortez Is a Democratic Socialists of America Member. Here’s What That Means,” Vox, January 27, 2018.
61 Confucius, The Book of Rites = Li ji (Beijing: Intercultural Press, 2013), 100.
62 Jiangyu Wang, “The Rule of Law in China: A Realistic View of the Jurisprudence, the Impact of the WTO, and the Prospects for Future Development,” Singapore Journal of Legal Studies (December 2004): 347–89; Lawrence J. Lau, “From the Economy to Judicial Reform, China Is Settling into a ‘New Normal,’” South China Morning Post, March 15, 2017.
63 Jiang Shigong, “A Farewell to National Law Monism: The Confusion of Qiuju and Reconstruction of Legal Pluralism,” Dongfang Journal no. 2 (2018).
64 One example is the case of Yu Huan, who killed a loan shark who had sexually taunted his mother. His case made national headlines and ignited heated online debate. Finally he had his life sentence cut to five years following a retrial. See “China Slashes Murder Sentence in Loan-Shark Killing Case,” Reuters, June 23, 2017. Another example is the case of Lu Yong, a leukemia patient. He imported a generic version of Glivec, patented by Novartis, for himself and fellow patients. In 2003 he was arrested for illegally distributing the unapproved drug, but was acquitted in 2015 after an outpouring of public support. His story was made into the hit film Dying to Survive, raising public sympathy to cancer patients. See Lily Kuo, “Popular Cancer Drug Film Prompts China to Speed Up Price Cuts,” Guardian, July 19, 2018.
65 Lin Li, “The Unity between Party and Law (lun dang yu fa de gaodu tongyi),” Law and Social Development (2015).
66 Dworkin, “Political Judges and the Rule of Law.”
67 Jerome A. Cohen, “A Looming Crisis for China’s Legal System,” Foreign Policy, February 22, 2016.
68 For detailed analysis of this phenomenon, see Su Li, Rule of Law and Its Indigenous Resources fazhi jiqi bentu ziyuan, and Jiang Shigong, A Farewell to National Law Monism: The Confusion of Qiuju and Reconstruction of Legal Pluralism (gaobie guojiafa yiyuanlun: qiuju de kunhuo yu daguo fazhi daolu).
69 Randall Peerenboom, China’s Long March toward Rule of Law (Cambridge: Cambridge University Press, 2002).