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Combining the Rule of Law with the Rule of Morality
July 10,2017   By:CSHRS

Combining the Rule of Law with the Rule of Morality

— General Secretary Xi Jinping’s Important Discourse on the Relationship Betweenthe Rule of Law and Rule by Virtue

XU Xianming*

Key points:

♦Throughout the ages, rule of lawhas been an indispensable means of governing a state. However, as General Secretary Xi Jinping has pointed out,it is not enough to govern a state by the rule of law alone, effective implementation of the law depends on moral support.Moral practice is inseparable from the law.

♦Law is virtue put down in words, and virtue is law borne in people’s hearts. If the basic policy and strategy of rule of law and the basic mode of governance by the rule law are to be well implemented, the rule of lawmust be combined with the rule of moralityso theycomplement each other, mutually promote one another and support each other.In this way, the modernization of state governance and Communist Party of China’s governance capability will be advanced.

♦If legislation isdivorced from human nature, deviatesfrom fairness and justice and loses moral goodness, the laws will not be good laws. And the implementation of bad laws will cause trouble in the future. Civilized law enforcement and fair justice themselvesarethe defense of morality. Unfair justice is not only a violation of the law, but also connivance in misconduct and the depreciation of virtue. If law enforcement and justicedo not punishevil and encourage good, they will become the root of evil themselves. To abide by the law is a virtue and violation of the law is a serious loss of morality. Good laws and good governance can be achieved only throughuniversal implementation of good laws.

♦Jean-Jacques Rousseau said “[t]he most important of all laws is not graven in marble or brass, but on the hearts of citizens.” If the law is to be functional, first of all, the whole society should trust the law. If morality is to be functional, it is necessary for there to be a cultural basis for the rule of morality.

♦In ancient China, there was the fine tradition of “Officials as Teachers”. Under the new historical conditions, leading cadres should both possess the thinking and capacity for the rule of law. “Speeches that do not conform to law, should not be followed. Actions that do not conform to the law, should not be esteemed. Things that do not conform to the law, should not be done.”1 Leading cadres should possess the demeanour of gentleman “to cultivate by virtue, to establish credibility by virtue, to convince the public by virtue”. To grasp the critical minority denotesthe masterof the fundament of morality and law combination.

♦The advantage of Chinese culture is itcaters to the ultimate spiritual needs and behavioural choices of humans without resorting to religion. Why is Chinese civilization able to withstand all kinds of shocks and still survive? Among many reasons, the most important one is China’s political and cultural DNA that combinestherule of law and rule of morality. Since the Qin Dynasty unified China, the rulers of all dynasties have used the law to safeguard the central authorities, and without exception maintainednational unity by rule of law and rule of morality.

On December 9, 2016, the CPC Central Committee Political Bureau held its 37th collective study, with the theme “The Rule of Law and Rule of Morality in ChineseHistory”.General Secretary Xi Jinping presided over the study and delivered an important speech. The speech profoundly revealed the relationship between the rule of law and the rule of morality, enriched and developedMarxist theories about the relationship between law and morality, and expoundedon how to uphold the rule of lawwith the rule of morality under the new historical conditions. Thisshowed the direction for the socialist rule of law with Chinese characteristics.

I. Pacify Society with the Law, Nourish Citizens with Morality

The law and morality both belong to the superstructure serving the economic basis, which are the same in essence, but the way of production, the way of implementation, the form of expression, the scope of adjustment and functions are different. General Secretary Xi Jinping has pointed out that law is written morality, and morality is the law of the inner heart. Both the law and morality have the function of regulating social behaviour, adjusting social relations and maintaining social order. They each have a different status and function in state governance. The rule of lawestablishes legal norms to regulate social behaviour, social life andstate governance that are mandatory and have authority. The rule of morality plays the role of moral education to enhance the ideological and moral consciousness of all members of society with convincing and persuasive power to regulate the behaviour of social members with moral guidance. As early as ten years ago, General Secretary Xi Jinping, then working in Zhejiang province, outlined the relationship between the rule of law and rule of morality saying they are likethe two wings of a bird. Throughout the ages, the rule of lawhas been an indispensable means of governing the state. But rule of law is not omnipotent.It is not enough to govern a state by rule of law alone. General Secretary Xi Jinping has profoundly pointed out that the effective implementation of the law depends on moral support, and that moral practice cannot be separated from legal constraints on behaviour. Morality can play a role in the domains whereit is hard for the law to regulate, and the law can discipline behaviours which are beyond moral constraints. From this he elicited: “The rule of law and morality cannot be separated or unbalanced. State governance needs legal and moral coordinative forces.” This concisely expresses the relationship between the law and morality, enriching and developing the basic principles of Marxist jurisprudence.

II. Combined Governance of Law and Morality, Historical Treasures

Over the course of nearly 5,000 years,the thought and practice of the rule ofmorality and rule of law has runthrough all Chinese dynasties.The combined governance of morality and the law is actually a treasure of Chinese political civilization. It is in the DNA of all China’s ancient dynasties. As early as 2,000 years ago, the Duke of Zhou proposed “respect virtues and protect the people” and toapply “bright virtue and prudent punishment”. Confucius proposed “to govern by morality”, emphasizing “[t]o govern by decree, to rectify by criminal law. People only beg for being absolvedfrom criminal punishment without shame; to govern with morality, to rectify and assimilate with etiquette. People will not only have a sense of shame, but turn to the heart.” Xunzi advocated “to change the innate nature and to raise the postnatal behaviour” and“to respect etiquette and to strengthen the law”. Dong Zhongshuinthe Western Han Dynasty (206 BC – AD 24) proposed“Yangis virtue, Yinis punishment”. He advocated the governance ofthe state with“much virtue and little punishment”.The Tang Dynasty (618 – 907) put forward “formulateetiquetteto revere, establish punishment to dignify”. On the one hand, rule by morality was implemented, with a complete moral system established through etiquette rectification during the reign of Emperor Taizong.On the other hand, therule of law was promoted andthe strict laws of the Tang Codes were formulated. The subsequentdynasties basically continued the tradition of the combined governance of the morality and law established during the Tang Dynasty. A thorough review of China’s history shows that in the periods when the rule of law andthe rule of morality combined well it created a good situation for governance and development. For example, theWestern Han Dynasty and Tang Dynasty both featured the coordination of etiquette and the law and the combined governance of morality and the law; both dynasties flourished. However, the mere rule of morality such as that during the Zhou Dynasty (c.1046 – 256 BC)eventually led to the collapse of etiquette and the disintegrationof ceremony and the great disorder of society, while the rule of law on its own, as was the case in the Qin Dynasty, led to deathsof two emperors.Exterritorial experience also shows this to be the case. History shows that when states attach importance to both the rule of law andthe rule of morality, their governance is more effective.It is difficult to govern a state well by mere reliance on either therule of law or the rule of morality.

III. Morality and the Law, Complement Each Other

Since the launch of reform and opening-up, the CPChas deeply summed up the experience and lessons of China’s socialist construction. The rule of law isthe basic strategy of the Party for leading the people.To govern the state and people according to the lawhas been established as the basic way that the Party governs the country. Therefore, a road of socialist rule of law with Chinese characteristics has been paved. General Secretary Xi Jinping has pointed out that one of the distinctive features of this road is to adhere to the combination of the rule of law and the rule ofmorality, and he has emphasizedthat firm measures should be taken to uphold both the rule of law and the rule of morality. This is not only a summary of historical experience, but also a profound grasp of the rules of state governance.

Observing the law is the principle that must be followed at all times and morality is a touchstone that cannot be ignored at any time. So the basic strategy of the rule of law and the basic way of the rule of moralityneed to be wellimplemented in the context of the new historical conditions. We must insist on the combination of the rule of law and the rule of morality to enable the law and moralityto supplement, promote and coordinate with each other in state governance so as to promote the modernization of the state governance system and governance capacity.

The touchstone role of morality for the rule of law should be strengthened. What is recognizedin the laws is recognition of an implied or implicit moral value. The important reason that peopleabide bythe law derives from the promotion of a moral consciousness. The insistence on state governance combiningthe rule of law and the rule of morality is in order tocultivate people’s moral awareness, to improve the level of social civilization, and to create a good human environment for the rule of law. On the one hand, the requirements of the rule of law should be embodied in the moral obligations on society. The law is the lowest level of morality, and morality thehighest level of the law.Abiding by the highest law is the greatest human virtue. Moralityplays a nourishing role on rule of law. On the other hand, the connotations of the rule of law should be highlighted in moral education.Especiallygiven the longstanding tradition of the importance of connections and the weak awareness of rules in our country, it should be focused of the cultivation of people’s belief in the rule of law, their sense of the rule of law andtheirconsciousness of the rule of law. We should guide people to conscientiously fulfil their legal obligations, social and family responsibilities, build a cultural environment in which the whole of society knowsand obeys therule of law. The spirit of the rule of law should be conserved and nourished in our cultural heritage.

Morality should be implemented in rule of law. General Secretary Xi Jinping has pointed out that only if moral conceptsare supported by the rule of law will morality be reliably institutionallysustained. Laws and regulations should establish a distinctive moral orientation, promote the virtues of righteousness and ensure realization of kind rewards for kind deeds and virtuous rewards for grace. The legislation and legal practice should both reflect the requirements of socialist morality. Socialist core values should be integral to the rule of law to enable the socialist rule of law to begood laws and kind governance. By establishing good laws in the world, then the world is regulated. By establishing good laws in a country, then the country is regulated. The general rule of development and the evolution ofthe rule of law is that the lawis virtue put down in words, and virtue is in people’s hearts. All countries elevate basic morality, public order and good personal behaviourto laws. If legislationis divorced from humanity,deviates from fairness and justice, and loses moral goodness, the ordained laws will not be good laws. And the enacting of bad lawswill only incur trouble in the future. It is the defense of morality itself to enforcethe law courteously and to uphold justice. Unfair justice is not only profanityof a society’s laws, but also connivance in vices and the depreciation of virtues. If law enforcement and justicedeviate from punishing vices and rewarding virtues, then it will become the root of evil. Obeying the law is a kindness and breaking the law is a gross loss of virtue. Good laws and kind governance can only be achieved by the universal implementation of good laws.

The typical morality issues should be solved by the application ofthe law. General Secretary Xi Jinping pointed out that the law is the bottom line for morality and the safeguard for morality as well. For those who are lack moral self-consciousness, for those whose behaviouroffends public decency and for those wicked deeds provoke public indignation, it is not adequate to merely rely on moral education and inquiry of conscience. In such cases the rule of law must be applied for effective governance. The reason it could be said in the early Tang Dynastythat “[n]o one pockets anything found on the road and doors are unbolted at night” wasbecause legal means were successfully applied to solve the problem of gross misconduct and “to govern with morality", so as  "to punish those contravening etiquette".2 Current misconduct such as telecommunication fraud, and counterfeiting, etc., should all be punished by legal means.

People’s awareness ofthe rule of law and moral self-consciousnessshould be enhanced. General Secretary Xi Jinping has repeatedly cited Jean-Jacques Rousseau’s words from The Social Contract that “[t]he most important of all lawsis not graven in marble or brass, but on the hearts of citizens”.In order to enablethe law to play its role, first of all, the whole of society should believe in the values of the law, which is the spiritual foundation for the rule of law. To enable morality to play its role, it is necessary to improve the moral accomplishments of the whole of society, which is thecultural basis for the rule of morality. The core spirit of the rule of law is the unity of rights and obligations. The basis for moral accomplishments is abiding by the law. A nation without virtue will not be prosperous. A person without virtue will not make progress. To a certain extent, the moral accomplishments of citizens determine the effectiveness of rule of law in a nation. The cultivation of moral self-consciousness and consciousness of the law is the basic project to realize the combination of morality and the law.

Governing cadres by the rule of law and by the rule of morality should be promoted. “Morality alone is not enough to deal with state affairs. The law alone is not enough to make itself effective.”3 Good governance primarily depends on the conduct of the people who engage in administration. It is critical to create a good environment for the rule of law and moral atmosphere so leading cadres can set an exampleand lead their subordinates. General Secretary Xi Jinping has pointed out that leading cadres should not only be important organizers and facilitators for the comprehensiverule of law, but also active advocates and demonstratorsof moral construction. In ancient China, there was the fine tradition of officials as teachers. Under the new historical conditions, leading cadres should have both the ability and thinking of the rule of law and be aware that“[s]peeches that do not conform to law should not be followed. Actions that do not conform to the law should not be esteemed. Things that do not conform to the law should not be done.”4 Their demeanour should be to “to cultivate by virtue, to establish credibility by virtue, to convince the public by virtue”.

IV. Firm and Self-confident, to Open up a New Road

The American philosopherof law Edgar Bodenheimerbelieved that the rule of law is by far the best way to govern human society. All the human inventionsof the past put emphasis on the conquest of nature, until with the introduction of the rule of law, people commenced to conquer themselves. Rule of law is the common pursuit of different nations and different cultures throughout the world. The Chinese nation is one of the first nations to discover the value of the rule of law.

Among the Four Ancient Civilizations —the ancient Babylonian Civilization, the ancient Egyptian Civilization, the Chinese Civilization and ancient IndianCivilization — it is only the Chinese Civilization that developed without interruption in line with its traditional values. Thestatus of the ancient Greek Civilization cannot be compared with the Four Civilizationsas it was a synthesis of ancient Babyloniancivilization and ancient Egyptian civilization, and therefore can only be regarded as a sub-civilization because of its lack of originality. However, after more than 2,500 years of development, the ancient Greek Civilization became the basis forthecommon law system and civil law system in the West. The ancient Babylonian Civilization, the ancient Egyptian Civilization, and the ancient Indian Civilizationwere the sources for the Arabian legal system and Indian legalsystem. The Chinese Civilization was the source of theChinese legal system. Themodes of national governance can be divided into three types: One is represented by the common law system and civil law system with the mode of law plus religion.Another one is represented by the Arabianand Indian legal systems which unify thelaw and religion.The third is the mode of rule of law plus rule of morality which was solely created by the Chinese civilization and has been practicedin oriental countries.

After the Zhou Dynasty ended in 256 BC, Chinese sages observed“to respectthe Heaven” and “to worship God” were not as good as“to respect morality”, thus the transition from religious politics to secularpolitics was complete. Three thousand years afterwards, divine powershad never achieved ruling status overthe political regime and the secular world.“Moral cultivation, family regulation, state governance and nation ruling”, “internal saints external kings” and “both ability and integrity” were henceforth always the basic requirement of Chinese “elite politics".5  The combination of rule of morality and rule of law was always the way of state governance and administrative managementin imperial China. It is the advantage of Chinese culture that, without the help of religion, the ultimate spiritual needs and behaviour choices of human beingscan be solved. How has Chinese civilization been able to withstand all kinds of shocks and stick to this foundation for society? Among many reasons, a very important one is the combination of the rule by law and the rule of morality is part of Chinese civilization’s political and cultural DNA. Since the Qin Dynasty (221 – 206 BC) unified China, the rulers of all dynasties have, without exception, used the law to safeguard the authority of the central authorities, and maintained national solidity and state unity through the combination of the rule of law and the rule of morality.

The CPC is the faithful inheritorof this fine Chinese tradition, and pioneer and constructor for its evolution and progress. We should have full confidence in the combining of the rule of law and the rule of morality, but also seek to improve it.Its autocracy, hierarchy, instrumentality, crueltyshould be abandoned and the beneficial thinking and practice of “to take law as the basis”, “to rule in accordance with the law”, “to punish without making any distinctions because of rank”, “to not fawn over the nobles”, “to attach importance to officials’ virtues”, “to attach importance to families” and “to cultivateone’s virtues and characters” should beinherited.Creative transformation and innovative development should be made to enable the tradition to carry forward in the new historical conditions. We cannot either follow the road of the combination of law and religion in the West, nor can we take the road of unification of politics and religion as in Arab nations.What we must find is our path, which is the socialist rule of law with Chinese characteristics. The path is bound to be led under the leadership of the Communist Party with the people as the main body, with equality before the law as the principle,with the actual Chinese situation as a starting point in order to highlight the featuresof state governance with the combination of rule of law and rule of morality. This is the Chinese mode of rule of law, the Chinese way of rule of law.

(Translated by LI Kunyan)

*XU Xianming ( 徐显明 ), professor of Institute for Human Rights, China University of Political Science and Law.

1“Junchen” [Prince and Minister], in Shangjunshu [The Book of Lord Shang].

2“Chen Chong Zhuan” [Chen Chong Biography], inHanshu.

3“Li Lou” (Part one),inMencius.

4“Junchen” [Prince and Minister], in Shangjunshu [The Book of Lord Shang].

5“Da Xue” [Great Learning],in SishuWujing [The Four Books and Five Classics].