Abstract
How should we understand yue 約 in the maxim “yue fa san zhang” 約法三章 from a 207 BCE story in the “Basic Annal of Gaozu” (Gaozu Benji 高祖本紀, an account of the founder of the Han dynasty) of Shiji 史記 (The Grand Scribe’s Records)? Does it refer to an agreement, and is it therefore a contract? Who was bound by it, then? Is it a “Magna Carta” for the people of Qin in its capital? Does it differ from the Magna Carta of 1215, or from a written constitution, or even from the 1912 Provisional Charter of the Republic of China? This paper explores the “Three-Rule Compact,” and in particular the meaning of the terms fa 法 in its “law that he who kills must die” (sharenzhe si 殺人者死) and yue. It argues that the term “yuefa” indeed conveys a legal message but cannot be understood as a binding contract, by comparing the notions of politics in two different lines of development in legal history. One is that of “from status to contract,” as traceable from the story of Magna Carta to the making of written constitutions, in which is reflected and developed the legal doctrines of Socrates, Hobbes, Locke, Rousseau, and Rawls, and leads to the birth of constitutionalism from the social contract. The other is that of the “Mandate” and “Son” of Heaven, as seen in concepts such as the “One Man” (yu yiren 予一人), establishing the August Ultimate (jian huangji 建皇極), and punishing violators of the code of li 禮 (chuli ruxing 出禮入刑), and the existence of criminal law but no law of contract. The latter line never transitioned “from status to contract” until the adoption of the Provisional Charter of the Republic of China.
Keywords
Three simple rules reached (yue fa san zhang), Magna Carta, social contract, the veil of ignorance, the Mandate of Heaven
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