The Rule of Law without Due Process

Abstract

This article investigates one important aspect of the Chinese legal-judicial reform that was unfolding in the early twentieth century (1901-37): i.e., why and how certain types of violent crimes were categorized and punished outside the criminal code and the criminal procedural law that were adopted as the law of the land and applied in court. It will reveal a continuous tension between, on the one hand, the principles of the rule of law, judicial independence, and due process that guided the legal-judicial reform and were insisted on by judicial officials and, on the other hand, the desire of provincial and county administrative officials to resort to “quick justice” to punish and deter violent crimes. An analysis of that tension will help to illuminate not only criminal law and criminal justice but also an important dimension of provincial and county administrative and judicial practices in early-twentieth-century China.