The development and evolution of ancient Chinese legal thought and its main characteristics

The Historical Development of China's History of Legal Thought

First, the legal thought in the slave society period

Theocracy and Patriarchal Rites

Second, the legal thought in the transitional period from slave society to feudal society

-Legal thoughts of Confucianism, Mohism, Taoism and Legalism.

Third, the legal thought of feudal society.

-feudal orthodox legal thought

Fourth, the period of semi-colonial and semi-feudal society

Development clue: the combination of rule of etiquette-rule of law-etiquette and law

The third lecture on feudal orthodox legal thought

(The history of the gradual Confucianism of feudal laws)

The development process of feudal orthodox legal thought;

I. Spring and Autumn Period and Warring States Period-Foundation

Second, Qin and Han Dynasties-promoting

The Thought of Rule of Law of "Everything Depends on Law" in Qin Dynasty

Legal Thought of Huang Lao School in Early Han Dynasty

Third, the mid-Western Han Dynasty-formation

Dong Zhongshu's Neo-Confucianism

Fourth, the Three Kingdoms, the Jin Dynasty and the Southern and Northern Dynasties-development

Legal thought

Metaphysical trend of thought in philosophy of law

V. Sui and Tang Dynasties-Complete Works

On the Laws of Tang Dynasty

Sixth, the Song Dynasty-a new stage of development.

The Rise of Neo-Confucianism

Seven, Ming and Qing dynasties-began to decline.

The Democratic Thought of Enlightenment Thinkers

Eight, after the Opium War-decline

I. Spring and Autumn Period and Warring States Period-Foundation

The formation of old Confucianism

Confucius-Founding Confucian School

Mencius-further development

Xunzi-emphasizing ceremony and combining etiquette with law.

Second, Qin and Han Dynasties-promoting

-the transitional period from old Confucianism to new Confucianism

The Death of Qin Dynasty —— The Political Practice Bankruptcy of Legalist Theory

Early Han Dynasty-On Huang Lao

(A) the Qin Dynasty "everything depends on the law" rule of law.

1, "things are unified in law", and law changes from "unity"

2. "Everything depends on the law"

3, severely punish "deep supervision misdemeanor"

4. Cultural autocracy of "teaching according to law"

-"Burning Books to Bury Confucianism"

Qin pushed the legalist doctrine of severe punishment to the extreme and brought its own destruction.

(B) The legal thought of Huang Lao School in the early Han Dynasty

Historical background:

The establishment of the Western Han Dynasty.

In 206 BC, after four or five years of Chu-Han disputes, Liu Bang defeated Xiang Yu and proclaimed himself emperor. Chang 'an, the founding capital of People's Republic of China (PRC), was called the Western Han Dynasty in history.

(1) social status

The economy is depressed, and people's lives are hard. "The people are not living, and the rich are not living."

(2) Learn the lesson of Qin's tyrannical death.

Legal thought of Huang Lao school

(1) What is the Huang-Lao School?

Huang Lao School is a branch of Taoism in pre-Qin period.

"Yellow, yellow emperor also; Old man, Lao tze also. "

Masterpiece:

Laozi, Huangdi Four Classics, Huainanzi

(2) Legal thoughts

First, inaction, "sharing interest with the people"

-the guiding ideology of governing the country.

B, both civil and military, "combination of morality and punishment"

C. "Don't suffer from petty punishment" and take measures to save the punishment.

Chapter III of the Constitution: "The murderer dies, and the wounded and the thief make amends. I learned how to get rid of Qin. "

Emperor Wen abolished corporal punishment.

D, "frivolous" and "taking millet as reward and punishment"

-It has the characteristics of Taoism, Confucianism and Legalism.

Third, the mid-Western Han Dynasty-formation

-Confucianism began to infiltrate into the feudal legal system, and feudal orthodox legal thought began to take shape.

(A) Dong Zhongshu's legal thought

outline

Master of Confucian ram studies in the middle of Western Han Dynasty. He lived around Emperor Wu of the Han Dynasty for more than thirty years.

There are many works, such as "Spring and Autumn Stories" and "Kaide Countermeasures".

Legal thought

Dong Zhongshu —— Based on Confucianism, he absorbed the legalist thought of centralization of monarchy and attaching importance to law, and at the same time combined various ideological factors that were beneficial to maintaining feudal rule, such as Yin-Yang and Five Elements, and the theocracy of Yin and Zhou Dynasties, and founded new Confucianism.

1, the legal system of maintaining imperial power in Chunqiu

(1) The Thought of "Great Unity" in Chunqiu

-advocate that all power is concentrated in the hands of Emperor Wu of the Han Dynasty, that is, the unification of the Han Dynasty.

(2) "Geng Hua" theory

-refers to changing the guiding ideology, ruling strategy and system of the ruling class.

Han inherited the Qin system.

(3) To "oust a hundred schools of thought and respect Confucianism alone" and unify thoughts.

"oust a hundred schools of thought and respect Confucianism alone"

2. "The supreme power is given by God" and the law comes from you.

(1) "the connection between heaven and man"

First, "Heaven is the ancestor of all things"

B, the harmony between man and nature:

"Life includes joy, anger, sadness and joy, such as spring, summer, autumn and winter."

"People's temperament is determined by nature."

C, natural punishment theory-"auspicious" and "disastrous"

Deify the rulers on the earth and create a theoretical basis for the divine right of monarchy.

(2) The monarchical power is given by God, and the law comes from you.

3. The theory of "three cardinal guides and five permanents" to maintain the feudal hierarchy.

(1) Three cardinal principles: the monarch is the minister, the father is the son, and the husband is the wife.

(2) The five permanent members: benevolence, righteousness, courtesy, wisdom and faith.

(3) Explain the three classes with the theory of Yin and Yang.

"This meaning, father and son, husband and wife, all take the way of Yin and Yang. The monarch is yang and the minister is yin; The father is yang and the son is yin; The husband is yang and the wife is yin. "

"Yang respects Yin and inferiority" and "Yang values Yin and inferiority"-Heaven.

Feudal regime, clan power, husband power and theocracy represent all feudal patriarchal thoughts and systems, and are the four ropes that bind people in feudal society.

The core of Confucianism and the guiding principles of feudal legislation and judicature.

4. "Yang De Yin Punishment" takes morality as the main punishment and auxiliary punishment as the supplement.

(1) "Teaching is the foundation of politics; Prison is the end of politics. It is foreign and also used. "

-Morality is the main punishment.

(2) "The greatness of the sky lies in Yin and Yang, with Yang as virtue, Yin as punishment, punishment as the main killing, and virtue as the main living. The sky is close to the sun and cloudy, and benevolence is not punished. "

-Yang De Yin Punishment

(3) the theory of three natures

"The nature of a saint cannot be named; The nature of the fight can't be named; Famous people are the nature of China people. "

Divide a person's personality into three categories:

The nature of a saint-first-class, good in nature, does not need teaching.

China people's nature-"having good qualities instead of being good", and educate them.

The essence of fighting-inferiority, innate evil, criminal sanctions.

5, "Spring and Autumn Annals" sentenced to prison, "original sin"

(1) spring and autumn judgment

Take the spirit and examples of the Spring and Autumn Annals as the legal basis for the trial, so as to legalize the Confucian classics.

-Confucian feudal law.

(2) Original conviction

When trying a case, the motives of the perpetrator should be examined according to the facts of the crime. As long as there is a criminal motive, it should be punished; If there is no criminal motive, it should be lenient.

"The prison of the Spring and Autumn Period. It must be based on your own things and your original ambitions. The evil one is unsuccessful, and the evil one is especially guilty, and the straight one is light. "

The sacred thought of divination;

-combining theological superstition with Confucianism.

Prophecy: A religious prophecy that predicts good or bad.

Weft: Interpret and deify Confucian Classics under the guise of divine decree.

Yi Tong, the White Tiger in the Eastern Han Dynasty

Theological thought of anti-divination

Chong Wang, Zhong Changtong

-from the perspective of simple materialism, criticized this superstitious theocracy.

(B) the basic characteristics of feudal orthodox legal thought

1, the imperial power is supreme, and the law comes from the monarch.

2. Through breaking the prison, etiquette and law are integrated.

Western Zhou Dynasty-Spring and Autumn Period and Warring States Period-Han Dynasty-Sui and Tang Dynasties

3. The basic principles of the feudal legislation of the "three cardinal guides"

4. Moral punishment is small, and moral punishment is the main punishment.

Once the feudal orthodox legal thought was formed, it had a far-reaching impact on China society and gradually played a guiding role in feudal legislation and judicial activities.

Four, the Three Kingdoms, the Jin Dynasty and the Southern and Northern Dynasties (development)

-Feudal laws absorbed a lot of Confucianism, and feudal orthodox legal thoughts further developed.

Historical background: feudal society moved from unity to division.

The ideological field is relatively loose.

1, legal thoughts

2. Metaphysical philosophy of law.

3. The northern minorities have studied and formed the legal thoughts of China's laws in the political reform.

(A) legal thought

This paper studies the compilation, interpretation and related legal theories of laws represented by written codes.

Generation and development process:

1, the Warring States-the forerunner

Legalist school

2. Han Dynasty-Formation

"Sentence by quoting classics" and "Annotation by quoting classics"

3. Wei, Jin, Southern and Northern Dynasties-Significant Development

(1) Codification technology has gradually matured and improved.

First, the formation of "famous cases"

B. Formation of 12

(2) The legal annotation has made unprecedented achievements.

Taishilu (Zhang Dulu)

Zhang Fei and Du Yu respectively annotated the law, clearly explaining the meanings and differences of many nouns, concepts and terms. Elaborating the will and intention of legislation with Confucian classics has unified people's different understanding of the law.

Du Yu (Law Book)

A accept gifts into the law, and the ceremony and the law are unified;

B "The words are straightforward, but it is forbidden to be simple when listening."

-Legal texts should be concise and easy to understand, and laws and regulations should be clear, accurate and straightforward; The form of law should be simple and the concept should be clear; The provisions should be simple and don't bother.

Distinguish between laws and decrees

"Law is based on positive charge, and order is based on the system of keeping things."

Zhang Fei (Law Table):

Out of politeness rules

B. Nature and function of "criminal name"

"Set things right, punish evil and promote good"

-Laws should clearly embody Confucian principles; The applicable law should be accurate, Yan Kuan moderate and consistent with the crime and punishment.

(3) Confucian spirit is integrated into specific legal provisions.

"Eight Opinions", "Official Position" and "Ten Crimes"

(B) the philosophy of law in metaphysics

1, what is metaphysics?

It was named after studying San Xuan (Laozi, Zhuangzi and Zhouyi) in Wei and Jin Dynasties. Metaphysics scholars interpret the Book of Changes with the Taoist thoughts of Laozi and Zhuangzi, and try their best to reconcile Confucianism and Taoism, which complement each other. The resulting idealistic ideology.

Its center is to talk about the relationship between heaven and man, that is, the relationship between heaven and personnel, or the relationship between "nature" and "bright coke"

2. The emergence of metaphysics.

The Debate between "Ming Jiao" and "Nature" in Wei and Jin Dynasties

(1) Mingjiao: the general ethics advocated by Confucianism.

"Religious Politics in Ming Dynasty"

Defects: Related to complex Confucian classics and divination superstitions.

"Crisis of reputation and religion"

(2) There are fierce internal conflicts among the gentry, and some people are negative and frustrated, advocating "doing nothing" and "letting nature take its course".

(3) aiding Taoism into Confucianism

It is to explain Confucian theory with some philosophical things of Taoism, so that Confucian theory is more philosophical and speculative.

3. Representative figures

Wang Bi's "Nature comes from a famous teacher"

Ji Kang's "The more famous, the more natural"

4. Significance

The appearance of metaphysical legal view is the variation of feudal orthodox legal thought in the new situation, which marks the decline of theological legal view, opens the precedent for speculative philosophy to explore jurisprudence, and has a direct impact on the formation of neo-Confucianism legal view later.

(3) Northern minorities have studied and developed China's legal thoughts in political reform.

The Political Reform of Emperor Xiaowen in the Northern Wei Dynasty

-The emergence of the above three legal thoughts promoted the process of Confucian feudal law to a certain extent.

Verb (abbreviation of verb) Sui and Tang Dynasties (all)

-Perfection of feudal orthodox legal thought

Yong Hui Fa+Fa Shu = Fa Shu in Tang Dynasty

Main features: "one size fits all", a model of combining etiquette and law.

1, "Morality is the foundation of politics and religion, and punishment is used by politics and religion"

"Virtue is the foundation of politics and religion, and punishment is for politics and religion. Those who are still unconscious will do it. "

2. Legalization of the Three Cardinal Programmes of Confucianism

-Maintaining the Three Cardinals and the Five Permits is the core of the legal thought in the Law of the Tang Dynasty.

Ten evils: rebellion, rebellion, perversion, immorality, disrespect, unfilial, disharmony, injustice and civil strife.

(1) "The Program of Monarch and Minister" and Its Embodiment in the Law of Tang Dynasty

(1) rebellion, rebellion.

Rebellion: "the danger of seeking the country"

Seek great rebellion: "seek to destroy ancestral temples, mountains and rivers, palaces."

(2) endangering the safety of the emperor.

3 disrespect.

(2) "Father and son" and its legal embodiment.

"unfilial"

(3) "Husband as wife" and its legal embodiment.

(1) "the festival of husband and wife also"

(2) Various specific and unreasonable regulations restrict the rights of wives.

"Seven out"

3. The legislative idea of maintaining hierarchical privilege.

Emperors, nobles, officials, civilians, untouchables, etc.

(1) nobles, officials guilty with impunity.

-beg, please, reduce, redeem, and be an official.

(2) Good and bad methods.

Different punishment for the same crime

Prohibition of intermarriage

In litigation, it is forbidden to sue for respect.

The influence of Tang Law Theory;

It provided the feudal rulers with the code of governing the country and keeping the country safe, which was inherited by Song, Yuan, Ming and Qing Dynasties.

The feudal dynasties after the Tang Dynasty took this feudal orthodox legal thought of the unity of etiquette and law as their guiding ideology.

The process of Confucianism of feudal law was completed.

After being sentenced to prison-by law-by legislation.

Five Dynasties and Ten Kingdoms-Song, Yuan, Ming and Qing Dynasties

In the late feudal society, the feudal system gradually declined.

The field of legal thought has different characteristics from the early feudal society.

1, the emergence of idealism, feudal orthodox legal philosophy.

2. During the Song and Ming Dynasties, the legal thoughts of the reformists.

3. Feudalization of political and legal systems of Liao, Jin, Yuan and other minority regimes.

4. Enlightenment thinkers in the late Ming and early Qing Dynasties had legal thoughts of democratic factors.

Sixth, the Song Dynasty-a new stage of development.

The rise of Neo-Confucianism and the further development of feudal orthodox legal thought

Neo-Confucianism, also known as Taoism, is the official academic thought in the late feudal society, and its appearance marks the development of feudal orthodox legal thought to a new stage.

(A) the reasons for the rise of Neo-Confucianism

Long-term chaos and turmoil have seriously damaged the traditional feudal ethics.

Confucian theory is poor and is impacted by Taoism and Buddhism.

During the decline of feudal society, it is necessary to strengthen centralization and consolidate rule.

(B) the formation and development of Neo-Confucianism

Sprouting from Han Yu in Tang Dynasty. Zhou Dunyi, Cheng Hao and Cheng Yi in the Northern Song Dynasty were further developed, Zhu in the Southern Song Dynasty achieved the greatest success, and those in the Ming Dynasty were further developed into "the study of mind".

1, Han Yu (Tang)

(1) orthodoxy

(2) the doctrine of sex: sex and affection.

-It paved the way for later putting forward "the nature of temperament" and "justice and human desire".

2. Zhou Dunyi (Northern Song Dynasty)

(1) taiji diagram

(2) "Honesty" is the source of life and the foundation of saints.

-the founder of Song Neo-Confucianism.

3. Cheng Hao and Cheng Yi (founders of Neo-Confucianism)

(1) "Li" and ""

(2) "Nature"

-began to form a relatively complete system.

(C) the main content of Neo-Confucianism

Chu Hsi

-Master of Science.

Personal data:

A famous thinker and master of Neo-Confucianism in the Southern Song Dynasty.

I have been engaged in cultural and educational work all my life, founded academies and enrolled students. In the history of education in China, he is the second most influential and outstanding educator and thinker after Confucius.

He is knowledgeable and prolific in writing, mainly including Notes on Four Books, Zhuzi School, The Complete Works of Zhuzi, etc.

Legal thoughts:

Zhu's legal thought was formed on his philosophical thought system. On the basis of Confucius and Mencius, he assisted Buddhism and Taoism to enter Confucianism, absorbed the speculative side of his philosophy and rejected the religious side, and established a relatively complete objective idealistic neo-Confucianism system. So as to raise Confucianism to an unprecedented philosophical height. Completed the philosophy of feudal orthodox legal thought.

1, "uphold justice and eliminate human desires"

-The philosophical basis of his legal thought.

(1) "Li"

Li: The basic category of Neo-Confucianism. It refers to the absolute truth in the universe that transcends matter and is the origin of all things.

In human society, rationality is manifested as feudal ethics.

(2) Qi

The diversity of qi constitutes a concrete and diverse universe. There is a difference between turbid qi and faint qi, and people are divided into high and low according to the different qi they bear.

This proves that inequality in human society is inevitable.

(3) "Reason" and "Qi"

Man is a mixture of reason and qi.

People have two attributes:

A. "Nature of Destiny": a manifestation of rationality in human nature, which is a kind of supreme goodness.

B, "temperament": Qi is a manifestation of human nature. People's feelings and material desires contain the danger of evil, that is, "human desires."

(4) "Preserve justice and destroy human desires"

Justice: feudal ethics, feudal ethics and morality, the concept of three cardinal guides and five permanent members.

Man's desire: man's emotional and material desire refers to the desire beyond the necessity of maintaining man's life and the behavior that violates etiquette norms.

"Dieters, justice also; Asking for delicious food, people want it. "

Heaven is pure good, and prison on earth is absolute evil. The two cannot coexist. "Preserving righteousness and destroying human desire" completes the return of human nature and realizes the highest goal of life. The essence is to maintain the feudal ruling order.

2. "Moral courtesy and political punishment" and "consistency"

Guide the most temperamental people with virtue.

Be kind to people who are generous with gas-be courteous to them.

Trying to annoy people-guide them to politics

Punish those with the thinnest temperament-Qi.

(1) The Relationship between Moral Politeness and Political Punishment

(1) Rites are the foundation, and political punishment is the purpose, but the essence and purpose are the same.

② Difference:

Its own characteristics are different: mandatory; consciousness

Different positions of governing the country: essence, essence and form; End, thick, shadow.

(2) Morality, courtesy, politics and punishment

Morality: Psychological moral quality or kindness.

Etiquette: an external code of conduct formulated to safeguard morality and ethics.

-Virtue is the foundation of courtesy, and courtesy is the guarantee of virtue.

Politics: laws and decrees.

Punishment: punishment

-Politics is the basis and standard of punishment, and punishment is the backing of politics.

(3) Different from the traditional theory that morality is the subject of punishment:

(1) for all members of an unspecified society; Morality, courtesy, politics and punishment have their own meanings.

② "virtue" before "punishment"; Morality, courtesy, politics and punishment are carried out simultaneously.

(3) Under certain conditions, "eliminating punishment by virtue"; Under certain conditions, we should first "eliminate punishment by politics" and "eliminate politics by courtesy"