LI AND FA, AND THE “THEORY OF LAW” IN TRADITIONAL CHINA

China, with its millenarian empire ranging from the first Qin dynasty (221 – 206 BCE) to the threshold of last century (1911), has known one of the longest and greatest political-institutional structures that ever existed. The country was managed by a powerful and learned literary bureaucracy, against the background of a highly civilized society, which lasted for a long time as one of the most advanced in the field of letters (books), politics (government), economics (agricultural production), technical development and arts. From the fifth century BCE, “Chinese philosophers were debating the nature and purpose of law ”. Furthermore, an “unparalleled continuity of Chinese legal thought and institutions “has been documented since then. It is also notable that” the only other legal sphere outside China that has an equally long history is that of Roman Law and its various modern adaptations. ”

However, according to a still widespread opinion, China has not experienced a development of the idea (and ideal) of “law”,'that is to say a ”legal tradition” comparable to the Western one. To be sure, such opinion reflects a dominant political-philosophical dimension of the Chinese traditional culture as resistant to the very notion of law, and has a strong hold among sinologists themselves. Indeed, it is usually thought that in classic China of ancient and modern times, notwithstanding a massive law-making consisting in the almost continuous series of so called imperial or dynastic codes, such an idea (and ideal) never ripened enough to affirm its conceptual and professional autonomy. It always had a rather instrumental and subordinate position with respect to politics, on the one hand, and to moral, religious, conventional, in short, “not legal” norms on the other. The notion of law was thus conceived either as solely bound with the sovereign (state) interest to guarantee order and social stability, and therefore reduced to a governmental (bureaucratic) function, or confused with social morality embedded into ritual manners and behavioral patterns that affect the lives of individuals, both in private and in public, in order to assure natural harmony in the relations among people.