Some here have mentioned that rule of law is stronger in Hong Kong than it is in Taiwan, due to the former’s British legacy. We push the question one step further, and ask why China never had the rule of law.
The answer, Francis Fukuyama argues in The Origins of Political Order, lies in China’s cesaro-papism throughout its entire history–religious authorities were always subordinate to the monarch. The rule of law requires laws be transcendent above rulers. Like Friedrich Hayek said, the law is prior to legislation. You need something like, “all men are…endowed by their creator with certain unalienable rights” as stated in the Declaration of Independence, or “the right to X shall not be infringed,” in the Bill of Rights.
In contrast, the Catholic church once asserted its independence from any and all states, and after it did so created a sophisticated body of its own laws based on the Justinian code. It got rulers accustomed to the idea that they were not the ultimate source of law. When rulers in early modern Europe tried to encroach upon religious laws, resistance create the rule of law in Europe.
India and Muslim states were also much closer to Christian Europe than to China because they had bodies of religious laws. But neither Brahmic religion nor Islam had a centralized structure like the Catholic church. The rule-of-law developed in Western Europe even before the modern state did, because states were so fragmented and the Catholic Church had so much power.
Most scholars believe those ancient near eastern laws weren’t real laws, intended only for boosting the king’s prestige. There’s no mention of them in contracts.
Some people think a Caliphate is the norm in the Muslim world. It’s not.
The legal scholar Noah Feldman argues that the rise of Islamism in the early twenty-first century and the widespread demand for a return to the sharia throughout the Arab world reflect a grave dissatisfaction with the contemporary regimes in the region and a nostalgia for a time when executive power was limited by a genuine respect for law. He maintains that the demand for sharia should be seen not simply as a reactionary turning back of the clock to medieval Islam, but rather as a desire for a more balanced regime in which the political power would be willing to live within predictable rules.
Fukuyama, The Origins of Political Order, p. 286
If you’ve never had theocracy, you will never have rule of law.
