A Test of the Performance of Chinese Legal Tradition

I. The Process of Confucianization of Traditional Chinese Law

(1) Introducing Rites into Law

The so-called "rites" is a general term for a series of spiritual principles and norms of speech and action that have existed for a long time in the ancient Chinese society, aiming at maintaining the patriarchal relations of blood and hierarchical system. The word "rites and laws" can be used to describe the relationship between traditional Confucian thought and traditional Chinese law. The mutual penetration and fusion of rites and laws constitute the most essential feature of the Chinese legal system and form the unique Chinese legal culture. The "introduction of rites into law" was the beginning of the Confucianization of Chinese law, which went through a long historical process. It began at the end of the Warring States period, was formed at the time of the Qin and Han Dynasties, was established during the period of Emperor Wu of the Han Dynasty, and matured during the Sui and Tang Dynasties, during which time it underwent a tortuous and gradual development process for thousands of years, and ultimately accumulated into a system of self-contained, unique Chinese traditional law.

(2) Integration of Rites and Laws

From the Wei and Jin dynasties onwards, Confucianism has become more closely connected with the law, and the Confucian classics have gradually gained an important position alongside the law, with the salient mark being the equal importance of the rites and laws. To the late Cao Wei, people have often compared the criminal and ritual, "Three Kingdoms - Wei Zhi - Liu Geng biography" contains: Liu Geng "and Ding Yi *** on the criminal etiquette, are passed on to the world". This shows that, at this time, the rites and punishments have been mentioned together.

(C) the unity of rites and laws

After the Wei, Jin, North and South Dynasties to the Tang, China's feudal society into its heyday. Tang law, whether structure, content has been a great deal. The combination of rites and laws also reached maturity and stereotypes, it can be said that a set of feudal patriarchal hierarchical thinking and system of rites, basically legalized. So much so that "a standard is based on the rites" became the evaluation of the Tang law. Through the Tang law can find the intrinsic connection between the rite and the law, can experience how the rite is dissolved in the law, can prove that the rite is the soul of the Tang law, the Tang law is the rite of the law performance, the two complement each other and indivisible relationship. As the "Tang law discusses the name of the case" said: "virtue and ritual for the government and education, punishment for the government and education, as if the dusk and the sun and the autumn also need to become one". The Tang law is a model of the combination of ancient Chinese rites and laws. "Introducing rites into the law" began at the end of the Warring States period, formed at the time of the Qin and Han Dynasties, established in the period of Emperor Wu of the Han Dynasty, and matured in the Sui and Tang dynasties, "in the rites as access" is the mature Tang law in the relationship between rites and laws with the following characteristics, that is, the Confucian feudal ethics and morality concepts, as the basis of the Tang law Moral concepts of Confucianism, as the ideological basis of the Tang law. The feudal "rites" and "law", tightly kneaded together, so that the legal norms and moral norms are unified to the law's coercive force to implement the norms of the rites, but also to the spirit of the rites of the ruling force, to strengthen the law's role in repression. In the final analysis, they are all aimed at maintaining the ruling order of the feudal state.

The characteristics of traditional Chinese law under the influence of Confucianism

Under the influence of Confucianism, the ancient Chinese law and the law under the influence of Western religion have obviously different characteristics, mainly manifested in:

(a) the law of the incomplete cultural, non-standardized

Confucianism, one of the obvious characteristics of the idea of the rites and laws is to melt the rites in the law, Therefore, it is very difficult to distinguish or integrate the law and the ritual, but the law should be different from the ritual in essence, at least the law should be generally mandatory, written and standardized, while the ritual should be arbitrary, unwritten and not strictly standardized. However, Confucianism's idea of ritual and law fuses the two, which makes it difficult for law to be formally unaffected by the unwritten and incomplete normative nature of ritual.

(2) The so-called punishment is more important than the people

As mentioned earlier, ritual has an important position and influence in Chinese history. Whether it is up to the emperor, ministers, ministers, or down to the ordinary people, are strictly abide by the feudal relationship between rituals, therefore, in ancient China, the violation of rituals for the law is strictly prohibited, resulting in a lot of should belong to the civil law, administrative law to adjust the object of the criminal law finally fell into the control of the scope of the criminal law, and therefore there is a "rite of going, the penalty of taking. The loss of etiquette into the criminal, and each for the other" ("Shangshu - Letters of Acceptance"), and ultimately the formation of criminalization of the characteristics of the people.

(3) Blurring of the boundaries between law and morality

The Confucianism introduced law into political doctrine, but did not completely juxtapose or antagonize law and ritual, and did not place legal norms before moral norms; rather, it supplemented rituals with law, establishing a complementary and mutually reinforcing relationship. As a matter of fact, I am afraid that people in those days could hardly distinguish between moral etiquette and legal norms, and more often than not, the violation of moral etiquette was the violation of law, while the violation of law as stipulated in the law was also regarded as the violation of moral etiquette. The line between law and morality is very blurred.

Third, the influence of traditional Confucianization of law on Chinese society

(1) The influence of feudal privilege ideology

China's current Constitution provides that: "Citizens of the Chinese People's Republic are equal before the law," and that "no organization or individual may have privileges beyond the Constitution and the law". have privileges beyond the Constitution and the law". This requires us to enforce the law must be serious, fair and selfless, no matter who violates the Constitution and the law, should be equally sanctioned by the law, do not allow anyone to have beyond the Constitution, the law above the privileges. But in real life, there are often some and the constitution is contrary to the phenomenon: illegal behavior, the same facts of the crime, due to the identity of the offenders are different, in the punishment is very different. For example: some should be sentenced to death, but not sentenced; some should be sentenced to focus on children, but the sentence is very light; some crimes should be sentenced to death, but sentenced to life imprisonment, and even get away with it to continue to do wrong.

All these phenomena are the existence of the feudal privilege of the law of thought on the negative impact of today's law. After understanding these, we have to rely on the continuous improvement of our judicial system and law enforcement procedures today to make them more reasonable and fairer, so that the whole society will develop in a more harmonious direction.

(2) The influence of the idea of "no lawsuits"

The Confucianization of traditional Chinese law is mainly guided by Confucianism, so as the founder of the Confucian school of thought, Confucius's ideas are inevitably seeped into traditional legal thought, in which the idea of "no lawsuits" is one of such ideas with a strong influence, and the idea of "no lawsuits" is one of such ideas with a strong influence on traditional law. The idea of "no lawsuit" is an example of such a two-sided approach. On the one hand, the idea of "no lawsuits" has certain similarities with today's "ruling the country by virtue", and on the other hand, Confucianism's advocacy of maintaining harmonious interpersonal relations and resolving social disputes through mediation has its own rationale. However, on the other hand, it also denies the necessity of resolving various social disputes through institutionalized and legalized judicial proceedings. In terms of the judicial system, litigation is an important guarantee for the realization of the basic policy of ruling the country according to law, but the Confucian idea of no litigation excludes many disputes from the scope of judicial jurisdiction, which leaves a wide space for the rule of man, and will make the abuse of administrative power and corruption without the effective constraints of the law.

(3) The influence of "benevolent rule"

Since the Confucianization of traditional law, the idea of "benevolent rule" has also entered the stage of history. There are many things in the idea of "benevolent government" that we can learn from today. During the Spring and Autumn Period and the Warring States Period, Confucius put forward the idea of "benevolent government", pointing out that those in power must treat the people with benevolence. He said, "To be benevolent is no greater thing than to love the people". The ideas of Confucianism on strengthening human moral cultivation and realizing the value and dignity of human beings are still of great practical significance to us modern people. The moral standards of "filial piety and ladder" and "benevolence and righteousness" should still be followed by modern people. Regardless of the era of historical development, the virtues of filial piety and respect for elders, respect for others, commitment and trustworthiness will be the standard for measuring the perfection of a person's personality. ■

2. The implementation of socialist law directly safeguards and protects human rights mainly in:

①The judicial organs safeguard and protect human rights by trying cases of human rights violations in accordance with the law.

②The judiciary upholds and safeguards human rights by adhering to a series of principles and fulfilling a series of procedures in handling cases.

3. The specialized organs of the State punish crimes on the one hand, and reform them on the other, while on the other hand still safeguarding the human rights they retain, such as the right to health, the right to personality, the right to inviolability of lawful property, and the right to lodge complaints, appeals, and whistleblowing.

4. The administrative organs also pay attention to the protection of human rights in law enforcement and prohibit the violation of human rights in law enforcement.

⑤ A human rights relief system is implemented so that those whose human rights have been violated can receive due compensation. Through these five aspects, the human rights recognized and guaranteed by the law can be effectively safeguarded and guaranteed in the implementation of the law from the legal system.

3, the role of human rights on the socialist legal system, human rights is not only a need for legal system to recognize, safeguard and protect the issue, but also the development of the legal system has a significant role in promoting the issue. In our country, attaching importance to human rights and recognizing, defending and safeguarding human rights will inevitably promote the development of the legal system.

First, the development of human rights requires the development of the socialist legal system.

Secondly, the realization of human rights under the socialist system means the realization of the people's right to be masters of their own house, and the realization of the citizens' rights to existence, development, person, politics, economy, culture and education, society, etc., and the realization of these human rights will undoubtedly strongly promote the development of the socialist legal system.

In addition, the status of human rights is also a value yardstick to measure the status of the legal system.