Rite and Law in Chinese Legal History.

LI and FA were the principal standards of society in Chinese ancient history．

The meaning of Li

In Classic Chinese, Li was written as禮. The Chinese character for "rites" previously had the religious meaning of "sacrifice" (the character 禮 is composed of the character 示, which means "altar", to the left of the character 曲 placed over 豆, representing a vase full of flowers and offered as a sacrifice to the gods).

Li (禮 pinyin: Lǐ) is a classical Chinese ideograph which finds its most extensive use in Confucian and post-Confucian Chinese philosophy. Just like other ideographs of the Chinese lexicon, Li encompasses not a definitive object but rather a somewhat abstract idea; as such, it is translated in a number of different ways. Most often, Li is described using some form of the word ‘ritual’, but it has also been translated as ‘customs’, ‘etiquette’, ‘morals’, and ‘rules of proper behavior’, among other terms.

Ritual (lǐ, 禮) originally signified "to sacrifice" in a religious ceremony. In Confucianism the term was soon extended to include secular ceremonial behaviour before being used to refer to the propriety or politeness which colours everyday life. Rituals were codified and treated as an all-embracing system of norms.

Its Confucian meaning ranges from politeness and propriety to the understanding of each person's correct place in society. Externally, ritual is used to distinguish between people; their usage allows people to know at all times who is the younger and who the elder, who is the guest and who the host and so forth. Internally, they indicate to people their duty amongst others and what to expect from them.

Internalization is the main process in ritual. Formalized behavior becomes progressively internalized, desires are channeled and personal cultivation becomes the mark of social correctness. Though this idea conflicts with the common saying that "the cowl does not make the monk", in Confucianism sincerity is what enables behavior to be absorbed by individuals.

Obeying ritual with sincerity makes ritual the most powerful way to cultivate oneself. Thus "Respectfulness, without the Rites, becomes laborious bustle; carefulness, without the Rites, become timidity; boldness, without the Rites, becomes insubordination; straightforwardness, without the Rites, becomes rudeness" (Analects VIII, 2). Ritual can be seen as a means to find the balance between opposing qualities that might otherwise lead to conflict.

Ritual divides people into categories and builds hierarchical relationships through protocols and ceremonies, assigning everyone a place in society and a form of behaviour. Music, which seems to have played a significant role in Confucius' life, is given as an exception as it transcends such boundaries, 'unifying the hearts'.

The meaning of FA:
In Classical Chinese, Fa was written as “灋”. According to Explaining Simple and Analyzing Compound Characters’ explanation, which is the first comprehensive Chinese character dictionary written in early 2nd AD, 灋 was equal to criminal law at that time. Its section headers is like three water drops, which means as criminal law, Fa should base on the principles of justice, treat everybody in an equality way like water. 廌 is a mythical chimerical creature in ancient Chinese legend which has a horn on its forehead. Looks like a kind of unicorn. It is said that in ancient society, this creature is used to judge guilty or innocence of a person by its horn. If its horn keeps straight after touching the suspect, it means the suspect is not guilty. And if the horn bent after the touching, the suspect will be sentenced as guilty.

律 Lǜ, another name of law, which was started used in Qin dynasty, means regulations or rules which should obeyed by all the people in the country. The original meaning of 律Lǜ was scale (音律), which showed that it would be used as notes arranged at fixed intervals in order of pitch to regular peoples daily behavior. Compared with Fa, Lǜ emphasized on the suitable used of law when Fa mainly meant a legal principle or right.

Although Fa and Lǜ have some difference, nowadays, they are used as synonyms. Actually they were combined to be used as a legal terminology called Fa Lǜ,which has a same use as Law in English. It can be used to refer to rules of conduct or action prescribed or formally recognized as binding of enforced by controlling authority and also can by used as the whole body of law and doctrines relating to one subject, depending on the concrete situation.

The history of Li and Fa: From mixture to combination

i. Mixture of Li and Fa
During the ancient era from Xia Dynasty to Zhou Dynasty (21st century BC-8th century BC ) when China was in the Slave society, customs, morals and law haven’t been separated clearly, and altogether they were called Li. Criminal penalty was carried out according to the rules of Li. Which means Li was equal to Criminal Law at that time.

When came to the Zhou Dynasty, the governor learned a lesson from the overthrow of the former dynasty to started to conceder more about people. They leaned that, heavy punishment may lead a react by slaves, so they started to consider using moral power to control people. A politician called Zhou Gong then made a whole system of rules of LI which was used in politics and society. And after that, Li became a useful instrument for the sovereign to govern the country.

ii. Opposition
In the 8th century BC, power became decentralized during the Spring and Autumn Period (春秋時代), named after the influential Spring and Autumn Annals. In this period, local military leaders used by the Zhou began to assert their power and vie for hegemony. In each of the hundreds of states that eventually arose, local strongmen held most of the political power and continued their subservience to Zhou kings in name only. Local Leaders for instance started using royal titles for themselves. The Hundred Schools of Though of Chinese philosophy blossomed during this period, and such influential intellectual movements as Confucianism, Taoism, Legalism and Mohism were founded, partly in response to the changing political world.

Among those schools of thought, the Confucianism and the Legalism had a violent controversy between Li and Fa, which had a influence on the latter political powers.

Confucianism (Chinese: 儒家; pinyin: rú jiā) is an ancient Chinese ethical and philosophical system originally developed from the teachings of the early Chinese sage and philosopher Confucius. Its focus is primarily on secular ethics and morality, as well as the cultivation of the civilized individual which in turn would contribute to the establishment of a civilized society and ultimately world peace. Confucianism is a complex system of moral, social, political, philosophical, and quasi-religious thought which has had tremendous influence on the culture and history of East Asia.

Legalism (Chinese:法家；Wade-Giles: Fa-chia; literally: School of law) was another one of the four main philosophic schools during the Spring and Autumn Period and the Warring States Period (the other three being Confucianism, Taoism and Mohism). This period (from 770 to 221 BC) was an era of great cultural and gave rise to many important schools of thought.

Legalism was a pragmatic philosophy, with maxims like “when the epoch changed, legalism is the act of following all laws”, and its essential principle is one of jurisprudence. “Legalism” here can bear the meaning of “political philosophy that upholds the rule of law”, and is thus distinguished from the word’s Western sense.

The laws supported by the Legalists were meant to support the state, the king, and his military. In theory, the Legalists believed that if the punishment were heavy and the law equally applied, neither the powerful nor the weak would be able to escape state control. The legalists especially emphasized pragmatism over precedence and custom as the basis of law.

"Lead the people with administrative injunctions and put them in their place with penal law, and they will avoid punishments but will be without a sense of shame. Lead them with excellence and put them in their place through roles and ritual practices, and in addition to developing a sense of shame, they will order themselves harmoniously." (Analects II, 3)

The above explains an essential difference between legalism and ritualism and points to a key difference between European / American and East Asian societies. Confucius argues that under law, external authorities administer punishments after illegal actions, so people generally behave well without understanding reasons why they should; where as with ritual, patterns of behavior are internalized and exert their influence before actions are taken, so people behave properly because they fear shame and want to avoid losing face. In this sense, Li is an ideal form of social norm.

When Qin Dynasty was founded, the emperor adopted theory of Legalism to govern the country, and made a policy called Burning of the books and burial of the scholars.

Qin Shi Huangdi had allowed the burning of intellectual books and Burying Confucians alive when Li Si (Li Szu), left side prime minister, had won favor over Chunyu Yue on the matter of commandary-county system, proposed book burning. In 213 BC, on Li Si's urging, Qin Shi Huangdi outlawed all other schools of thought ("Hundred Schools") except for Legalism , and he ordered book burning. 346 Confucians local to Qin capital were buried alive at one time. When Qin Shi huangdi's elder son, Prince Fu-Su (aka Fu Su), encountered the rows of Confucians who were on the way to the burial ground, he went straight to Qin Shi Huangdi pleading for amnesty on behalf of the Confucians. Qin Shi Huangdi rebutted Fu-Su and further sent his elder son to Shangjun (today's Suide and ancient Suizhou) Commandary on the northern border to be with General Meng Tian. Qin Shi Huangdi then played a trick to have various prefectures send over about 700 more Confucians and scholars. All 700 Confucians were stoned to death in a valley, a place later names 'valley of Confucian killing'

iii. Combination
The quick of the Qin Dynasty was attributed to this proscription. Confucianism was revived in the Han Dynasty that followed, and became the official ideology of the Chinese imperial state.

Under Emperor Wu’s leadership, Han Dynasty was in its most prosperous periods. Emperor Wu decided that the former policy was no longer suitable for China, and officially declared China to be a Confucian state. However, he combined Legalist methods with the Confucian ideal. This official adoption of Confucianism led to not only a civil service nomination system, but also the compulsory knowledge of Confucian classics of candidates for the imperial bureaucracy, a requirement that lasted up to the establishment of the Republic of China in 1911. Confucian scholars gained prominent status as the core of the civil service.

The prominent status Confucian scholars got showed a combination of Li and Fa. From then on, sovereign used Li to regular people’s behavior, and used Fa to punish people who break the law. Li became not only a ratio legis of law, but also became an application of law. In fact Li is the outline and the core methods when lawmaker legislate laws and regulations.