Abstract

The Rule of law often is considered to be a criterion for legal positivistic thinking. According to this maxim: can the Chinese Legalistic thinking of Shang Yang and Han Fei be considered as a sort of Legal Positivism? There are many positions shared by both, like the idea of a positive law or the binding character of the law despite of person and sympathies or even the concept of the law as a system. There is, however a important difference between them: legal positivism can be best described as “rule of the law” whereas Legalism best fits the idea of “rule by the law”, since there were no secondary rules stating how the legislator had to make the law. On the other hand, the strongest approach to draw a parallel between both is the commonly shared concept of realism of the law as social construction.