Everyone thinks "learning" is shameless.

Traditional culture and legal system construction

Qiao Wei

China's traditional cultural thought is a huge and complex complex gradually formed by our Chinese nation after thousands of years of creation, development, absorption, integration, criticism and sublation, which contains both essence and dross. Therefore, simple affirmation or simple negation is not desirable. In particular, it is unfair to think that China's traditional cultural thoughts are useless, and even to blame all the ugly phenomena in China in the past and now on traditional cultural thoughts. We believe that China's traditional cultural thought should be treated with a realistic attitude, that is, from the standpoint, viewpoint and method of Marxism, it should be concretized, criticized and discarded. Only in this way can we make the past serve the present and be conducive to the construction of spiritual civilization.

Someone once said, "Man creates his own history, but he does not create it at will, but builds and inherits it from the past under the condition of direct encounter." [1] In other words, the development of each era has its continuity and inheritance, and future generations always establish their own material civilization and spiritual civilization on the basis laid by predecessors. This is also a law of social development that is independent of human will. Judging from the historical development of legal system construction, this point is more obvious and prominent. The ancient legal system of China is called Chinese legal system, which is unique in the world. However, China's legal system was not created overnight, nor was it invented by a philosopher or scholar. China's legal system is a process of continuous development, a wealth created by our nation and its outstanding representatives, and a precious legal and cultural heritage left by our ancestors. In the long history of the formation and development of Chinese legal system, the mutual inheritance of legal systems between feudal dynasties is very obvious. Confucius said, "You know the gains and losses of Yin; Zhou's gains and losses are all known. Its successor or successor, though immortal, is also known. " [2] This shows that the etiquette system of the later dynasty inherited and reformed the etiquette system of the previous generation, and sometimes it was simply copied intact. There has never been any objection in academic circles. Then, in the construction of the legal system, can we make a clean break with the past without considering the historical and cultural traditions of our nation? I think this is not only impossible, but also very harmful. We now propose to establish a legal system with China characteristics. This "China characteristic" mainly refers to the historical tradition of China and the actual national conditions of China. If we put aside the history and national conditions, not only is it impossible to talk about China's characteristics, but such laws are bound to be impracticable because they are divorced from reality.

Before the book, there was a heated debate about whether the proletariat could inherit the historical, legal and cultural heritage. At that time, there was a popular saying that since the six laws were abolished, we could not only inherit our ancient legal system and legal cultural heritage, but also "smash" it completely. Obviously, this is a metaphysical way of thinking, which runs counter to Marxist theory. It has long been said: "In dialectics, negation is not simply saying no, or declaring that something does not exist, or destroying it in any way." ..... Everything has its own special negative way. After such negation, it will develop at the same time, and so will every concept and concept. "[3] This shows that negation is not simply to declare that something does not exist or destroy it, but a form of development from low to high, which is a development process of taking its essence and removing its dross. So you can't say no, you can't inherit, or inheritance can't be denied. It is against dialectics to mechanically oppose the two. Comrade once pointed out: "We must never refuse to inherit and learn from the ancients, foreigners, and even the feudal class and bourgeoisie." [4] Therefore, we should seriously study the legal systems of various countries in history. Everything that is conducive to strengthening and developing the legal system should be absorbed critically; Anything harmful to proletarian dictatorship and modernization should be abandoned. The legislative practice shows that China's legal system construction is progressing along the road of critical inheritance. The legitimate cultural heritage of the proletariat in its national history is not a question of whether it can be inherited, but whether it dares to face up to the fact of inheritance.

The legal cultural heritage we are talking about here mainly includes two aspects from its content: first, the legal system in various periods in history, that is, legal norms; The second is the legal thoughts of various schools in history, that is, legal theory. In the process of historical development, these two aspects infiltrated, influenced and promoted each other, which made the ancient legal system of our country develop to a very complete position. Worldwide, if Roman law is a typical representative of slavery code and Napoleonic code is a typical representative of bourgeois law, then China's Tang law is well-deserved as a typical representative of feudal autocratic code. Of course, the ancient legal cultural heritage of our country, like the whole traditional cultural thought of our country, has both sexual essence and feudal dross, which should be specific and not generalized. In general legislation, such as absolute monarchy, words are used instead of laws; Order is higher than law, and power is greater than elimination; Hierarchical privilege, officials are expensive and people are cheap, politics and law are integrated, and administrative intervention; Cruel punishment, innocent punishment, extorting confessions by torture, countless unjust prisons and so on. In the aspect of marriage and family legislation, the husband's power is supreme, and men are superior to women; Three from four virtues, from beginning to end; Hold your head high and value boys over girls; Parental arrangement and marriage are the most backward, decadent and dark aspects in China's ancient legislation and judicial practice, and their influence and poison have not been completely eliminated. It can be said that this historical and cultural tradition is a heavy burden on our national progress, the biggest obstacle to our founding and legal system, and a stumbling block to our national economy and modernization. If we don't get rid of these traditional cultural concepts, building a highly civilized country can only be an unrealistic fantasy.

However, in the historical tradition and legal cultural heritage of China's legal system construction, besides these dross that should be criticized and discarded, there are also many essences that deserve our serious study and absorption and can be used for reference. For example:

First, the combination of etiquette and law, commensurate with crime and punishment. Our nation has a historical tradition of paying attention to etiquette and law and implementing the rule of law. As early as the Western Zhou Dynasty, when slavery was developed, under the guidance of the thought of "Mindfulness and Caution in Punishment", a legal system was established with both propriety and law. During the Warring States Period, when a hundred schools of thought contend, the relationship between etiquette and law and its function have been fully studied and demonstrated in theory. As Sima Qian summed up: "the husband ceremony has not been banned, and the trip to France has fallen behind;" What the law does is easy for users to see, and what the ceremony does is difficult to know. " [5] This shows that the ritual is to eliminate people's criminal intentions through the subtle educational role, so it is called nip in the bud; The law eliminates the harm to the ruling class by punishing individual offenders, so it is called ex post facto remedy. In order to control the resistance to the ruled class, rulers of past dynasties used these two ruling methods alternately according to the development of class struggle. This is called: "Being both civil and military is also a long skill. "However, for rulers to govern the country, ceremony and law are not equal, but ceremony is the main means, supplemented by law (punishment). Confucius said, "Rule the people with courtesy, but not with peace." He also said: "The Tao is governed by politics, and the people are exempt from punishment; Tao is virtue, courtesy, shame and dignity. " [6] He believes that it is more beneficial to educate and enlighten them with courtesy than to punish them simply with punishment; We should not only have a sense of shame, but also abide by the legal order with conviction. As Jia Yi said: "People who are polite to the cloud are absolutely evil when they are young. They teach their children with small children, so that people will stay away from good and commit crimes without knowing it." [7] It is precisely because of the advocacy and persistence of Confucian scholars and the repeated trials and comparisons of the feudal ruling class that a set of legal systems and legal theories combining etiquette and law, with morality as the mainstay and punishment as the supplement, have formed the basic characteristics of the Chinese legal system. On the issue of how to implement the rule of law, some far-sighted economists and thinkers have put forward the idea of moderate punishment and proportionality between crime and punishment. The so-called moderate penalty means that the state should adopt a more reasonable penalty range according to the social situation at that time when formulating penalties. Confucius said: "If the ceremony and music are not prosperous, the punishment will be lost; "The punishment is not correct and there is nothing to do." [8] The term "zhong" as mentioned here refers to the measurement limit of the overall severity of a country's punishment, that is, there is nothing wrong with it, but it is necessary to use Zhong Dian to govern the world. The so-called proportionality between crime and punishment is the punishment for individual criminals, which must be commensurate with the size of their crimes. It is neither a light punishment for a felony nor a heavy punishment for a misdemeanor. Xun Kuang said: "If the punishment is called a crime, it will be ruled, and if it is not called a crime, it will be chaotic"; "It is ominous to reward improper work and punish it." . [9] That is to say, in the implementation of the rule of law, it is necessary to oppose both severe punishment and unrestrained indulgence. This theory of combining etiquette with law and adapting crime to punishment is the guiding ideology of feudal criminal legislation and a correct summary of the experience of legal system construction in ancient China. No matter which feudal dynasty, if we can conscientiously implement this guiding ideology, we can generally achieve long-term stability; If we give up or deviate from this guiding ideology, most of them will end in a short period of extinction. As we all know, Qin Shihuang was a feudal emperor who did not believe in the theory of combining etiquette with law and the theory of proportionality between crime and punishment. After he unified the six countries, he gave up the rule of courtesy and devoted himself to the rule of law, and imposed heavy penalties on minor crimes to make him innocent. The result is that "clothes stand in the way, fetters success, the world is worried and resentful, and the people are rebellious." [10] Shortly after his death, a peasant uprising led by Chen Sheng broke out, and finally the Qin Empire was submerged in the sea of Wang Yang in the peasant war. The short-lived demise of the Qin Dynasty proves that what Lao Tzu said is very reasonable, that is, "People are not afraid of death, why should he be afraid of death?" This shows that harsh laws are not enough to govern the country, and no one can maintain stability just by killing people. The Han Dynasty since the Qin Dynasty summed up the historical lesson that "the criminal law of Qin Dynasty remained unchanged, and the Zhao family was destroyed", and adopted the legal system of "Farewell my concubine", that is, the combination of etiquette and law, light punishment and saving punishment, which promoted the social, economic and cultural development in the early Han Dynasty and caused the prosperity of "the scenery of civil administration". The positive and negative experiences and lessons in history can not be said to have no reference significance for China's current legal system construction.

Second, the rule of law officials, there is no hierarchy in punishment. From the perspective of legislation and judicature, some economists in ancient China emphasized the rule of law officials. Confucius once said: "The proprietors dare not be disrespectful; If you are just, don't dare to refuse. " "its body is right, but it does not make; His body is not right, although he is not obedient. " "If you are honest, what about politics? Can't you be honest, like an honest man? [1 1] That is to say, the quality of a country's rule of law, that is, whether laws can be strictly observed and implemented smoothly, mainly depends not on ordinary people, but on officials of all sizes, especially those members of the ruling group who hold power. If these people can set an example to abide by the rule of law and act according to law, it will influence and drive ordinary people to consciously abide by the law. On one occasion, Ji Kangzi and Confucius were in charge of politics together, and Confucius replied: "Politicians are also right. Zi Shuai is right, but he dares to be wrong. "It should be affirmed that Confucius' definition of' the meaning of politicians' is very incisive and really grasps the fundamental problem of governing the country. Ji Kangzi suffered from many thieves and asked Confucius for advice. Confucius replied: "[12] I don't steal what I don't want, although I reward it." This statement hit the nail on the head: the reason why ordinary people steal is precisely because of the greed and excessive exploitation of the rulers. Ji Kangzi once asked Confucius, "There is no way to kill, but there is a way. What? " Confucius replied, "If you are a politician, why did you kill him?" ? Children are better and people are better. The virtue of a gentleman, the virtue of a villain and the phoenix on the grass will all be suppressed. "Confucius believes that good official management is more effective than severe punishment, so he particularly emphasizes the personal moral cultivation of leaders and repeatedly asks the rulers to' self-denial', that is, to restrain their desires and correct behaviors that are not in line with the ceremony to make them meet the requirements of the ceremony. Xunzi inherited and developed this idea of Confucius. He pointed out: "The monarch is graceful, the people are beautiful, the ceremony is just and the scene is just, the monarch is a dish, the people are water, and the dishes are round and round." He also said: "If there is a chaotic monarch, there is no chaotic country and there is no cure. "One reason is that the law can't, and the class can't go its own way. If you get someone, you will do it. If you lose someone, you will die. " [13] As far as the relationship between man and law is concerned, this view is also impeccable. Although the country has formulated a complete law, even the best law can only be a dead letter without people who are good at enforcing the law and dare to safeguard their dignity. On this issue, the legalist view is more radical than that of Confucianism. In order to ensure the enforcement of the law, Han Fei even put forward the idea of "being honest for the officials and not governing for the people". He said that this method is like "shaking the wood and attracting the net". Shake Chinomoto, and then the branches and leaves will move; If you get the net, you will open your eyes. [14] Only by "official rule" can "people rule" be realized. It is based on this understanding that the feudal ruling class of past dynasties put the rectification of official administration in a very prominent position in its various legislations. For example, the Tang Law, the most complete feudal code, has 500 articles, of which more than two thirds are related to official positions. In addition, Emperor Xuanzong of the Tang Dynasty also formulated a complete administrative code, namely the Six Codes of the Tang Dynasty. It has very clear provisions on the establishment of state institutions, the requirements for officials at all levels and the legal responsibilities that should be borne when breaking the law. This shows that feudal rulers attached great importance to rectifying official management by legal means, and the legislation in this respect in ancient China was quite complete. In order to achieve the goal of the rule of law, although the feudal law was a law to maintain hierarchical privileges, the feudal rulers did not allow their officials to seize interests outside the law. As early as more than two thousand years ago, Shang Yang put forward the principle of "punishment without hierarchy". He said: "From General Qing Xiang to Dr. Shu Ren, people have disobeyed the king's orders, violated the state's ban and committed unforgivable crimes. Not for the former, but for the latter's defeat. Fortunately, in the front, it is too late to lose. Loyal ministers and dutiful sons have had it, and there must be a few. " [15] Han Fei also advocated: "Don't avoid officials after punishment, and never leave Shu Ren to reward the good." [16] They all demanded that when applying the law, neither relatives nor friends nor others could be distinguished. However, due to the exploitation of the feudal ruling class and the fatuity and decay of the feudal rulers, in the history of feudal society, there were few times when official administration and the rule of law were relatively clear. Under normal circumstances, the law can't control officials, only the people. As someone pointed out, since ancient times, punishment is often imposed on the lowly, and the person who breaks the law is not a noble minister. Although the legal principles of "ruling the country according to law, regardless of the severity of punishment" were difficult to realize in feudal times, they were valuable wealth in China's legal and cultural heritage.

Third, obey the law and win the trust of the people. Some philosophers and thinkers in ancient China all realized the important role of law in governing the country and safeguarding the people, so they all regarded obeying the law and winning the trust of the people as the fundamental problem of consolidating Feng Jianzhong. But the feudal era was an era of absolute monarchy, and besides the law, there was also a supreme emperor. The emperor has a "constitution of China" in his mouth, which means law. In the Western Han Dynasty, Tingzhou did not try cases according to law, but only acted according to the emperor's face. Someone scolded him and said, "You are the king of the world. You don't follow the rule of three feet, but treat people's thoughts as prisons. Is the prisoner so solid? " Du Zhou calmly replied: "Three feet is safe? The former owner did the law, and the latter owner did the law. What was the law at that time? " [17] This shows that under the condition of absolute monarchy, the emperor's personal will has supreme authority, and he can make laws, replace laws, change laws, and even abolish laws. However, even under such historical conditions, some law enforcers, starting from safeguarding the overall interests of the ruling class, often do not hesitate to go bankrupt or even bankrupt, stubbornly safeguarding the feudal legal system. For example, when Emperor Wendi was riding a horse, someone sneaked on him, and Tingwei Zhang Shizhi was fined. Emperor Wen was furious and thought the sentence was too light. Zhang Shizhi pointed out to Chen Ri: "The protector is the son of heaven and the world." . This method is enough. What's more, the law does not trust the people. "He said," Tingwei, the world is at peace. All usages in the world are important, and human safety is at a loss. " [18] Because Zhang Shizhi emphasized that judging a case according to law and winning the trust of the people was a matter directly related to national security, Emperor Wendi had to agree with his judgment. On another occasion, a man who stole Yuhuan in front of a high temple was caught, and Wendi handed it over to Zhang Shizhi for trial. Shi Zhi was sentenced to death for the crime of stealing ancestral temples and serving imperial objects. Wendi felt that it was not serious enough. On the day he was released, he said, "When people die, they steal the equipment of the first emperor! I belong to Ting Wei, and I want to be a family, but you played it according to law, not because I inherited the meaning of the ancestral temple. "Let go of the hat and fight for it according to law. He said, "That's the law. That's enough. And sin and so on. , but based on disobedience. Nowadays, those who steal ancestral temple utensils are like one in ten thousand. If a fool takes a cup of soil from Changling, why should your majesty add it? "[19] both cases emphasize that" laws are enough "; What's more, it is untrustworthy to the people. "We are firmly opposed to arbitrary extrajudicial punishment. In that era of unjust closure of criminal prisons, as a feudal official, Zhang Shizhi faced an autocratic monarch strangled by life and dared to fight to the death. This spirit of martyrdom is commendable. During the Wei and Jin Dynasties, due to the high development of ancient law in China, Liu Song, Tingwei of the Western Jin Dynasty, systematically demonstrated the importance of abiding by the law and winning the trust of the people. He said, "Madam, everything between you and the world is legal. It has made the whole world, so you can't trust teaching. Don't be slow in the world, and don't take the law of unbelief. And know what to say first, people are stupid and can't be cheated. It doesn't mean that you usually break the law and can't win the hearts of the people. " [20] that is to say, once the law is made public, we must resolutely act according to law, and we cannot say one thing and do another. The stupidest person can only cheat him once, and I'm afraid he won't be cheated twice. Therefore, he believes: "If the legal track is established, it will be done. The letter is like four points, as firm as a rock. How can officials be transferred at any time within the established system as appropriate, leading to chaos? " 。" [2 1] In other words, judicial personnel must strictly abide by the provisions of the law when trying cases, and must not use any reason as an excuse to undermine the legal system. In order to achieve this, Liu Song also proposed: "If a crime is tried by law, then the text should be stipulated by law. If there are no words, we must use examples to judge, and words and examples are not as good as them. " [22] Liu Song's proposition is close to the judicial principle of nullum crimen sine lege. This principle was put forward by the bourgeoisie in the west17-18th century as an anti-feudal tyranny and judicial tyranny. Liu Song, on the other hand, put forward the judicial principle that "writing is not as good as example" more than 1600 years ago, which fully reflected the development of China's ancient legal theory and showed that people of insight in the feudal ruling class paid attention to the implementation of the law. However, due to the inseparable relationship between autocratic monarchy and extrajudicial tyranny in feudal times, it is impossible to completely win the trust of the people by acting according to law. Nevertheless, as a historical tradition of China's legal system construction, the concept of abiding by the law and winning trust still has its reference significance. Especially in today's increasingly perfect legal system, how to abide by the law, strictly enforce the law, and investigate the offenders in order to win the trust of the people and safeguard the authority and dignity of the system is also an important problem to be solved urgently.

Fourth, assess the situation and carry out reforms. Some philosophers and thinkers in ancient China gradually realized from the practice of legal system construction that if the law wants to play its due role in governing the country and keeping the country safe, it must actively and prudently reform the legal system according to the needs of social and economic development while maintaining the relative stability of the law. As early as in the slave society, the slave owner class put forward the legislative and judicial principles of "the power is heavier than the misdemeanor and the punishment is lighter than the world" [23]. In their view, when formulating and implementing laws, the ruling class should not only consider the degree of harm of various specific crimes to society, but also determine different punishment systems according to the needs of different periods. As Xunzi Zheng Lun said: "Therefore, the punishment for governance is heavy, and the punishment for chaos is light. The crime committed is heavy, and the crime of chaos is light. The book says:' There are light and heavy punishments in the world!' This is also called. "This shows that the law and punishment system can not be static, but should be formulated according to the needs of social development and the situation of class struggle. In the early feudal society, the emerging landlord class put forward a systematic reform theory in order to safeguard the nascent feudalism and protect their vested interests in politics and economy. Shang Yang said: "At that time, legislation was made, and the ceremony was made according to the matter. Etiquette is determined by time and properly stipulated. " [24] That is to say, on what basis does the ruler legislate? We should make laws according to the needs of the times, instead of sticking to the rules and being divorced from reality. Han Fei said more clearly: "Governing the people is impermanent, and only governing is the law. Law and time turn to governance, and governance and things are meritorious. " [25] He believes that only by advancing with the times can the law achieve results in governing the country and protecting the people. It is under the guidance of these thoughts that the slave society changed the penalty of "unclear power and unpredictable punishment" into the law of "written in books, hidden in officials and made public" in the early feudal society. Later, Shang Yang and Qin Xianghe changed the law into law, making it the measure of conviction and sentencing, thus laying the foundation of feudal legal system. "Han inherited the Qin system", but it also gained some gains and losses. It not only made great reforms on charges, but also initiated the transition from the five punishments of slavery, Jimo, Mo, Gong and Jun, to the feudal system, that is, answering, beating, acting, flowing and dying. During the Wei, Jin, Southern and Northern Dynasties, although wars continued, the feudal rulers did not neglect or give up the legislative work. This period is a period of great changes in China's feudal legal system. Important examples are: the eight-part essay system to protect the privileges of feudal nobles began to enter the law; Ten evils resisted by the ruling class are basically formed; The scope of clan punishment has been reduced, and the punishment methods have also been reduced; The legal status of Nu Wa and other untouchables has also improved to a certain extent compared with the Qin and Han Dynasties, and so on. These reforms in the Wei, Jin, Southern and Northern Dynasties prepared the necessary conditions for the emergence of the Tang law, which marked the perfection of the feudal legal system. From the Song and Yuan Dynasties to the Ming and Qing Dynasties, feudal rulers have been constantly reforming the feudal legal system to make it more and more perfect to meet the needs of their own rule. In a word, the development history of ancient Chinese legal system is essentially a history of constant innovation. Although there are also old-fashioned and retro factions within the feudal ruling class, they have always advocated that "the laws of ancestors cannot be changed" and stubbornly adhered to those outdated old systems, but this is a tributary of history, not the mainstream. In terms of legal system construction, the revolution has always defeated the conservative forces. Although they paid a heavy price and sacrifice for the reform, they made important contributions to the construction of feudal legal system. Today, we are in an era of great social change, and the in-depth development of economic system reform will inevitably require us to make corresponding legal reforms, otherwise it will be difficult for us to realize modernization. In the new historical period, this idea and practice of sizing up the situation and keeping pace with the times is worth summarizing and learning from.

In a word, as an integral part of China's traditional cultural thought, legal cultural heritage is a very rich cultural treasure house. There are inexhaustible historical materials for our legal system construction today. Over the past 30 years since the founding of the People's Republic of China, although we have done a lot of work in studying and summarizing the legal and cultural heritage of the motherland and achieved certain results, due to various interferences and influences, our research and utilization of it is still insufficient, which can be said to be just beginning. This field is infinitely vast and promising. In order to build a legal system with China characteristics, we need to clean up this foundation and inherit and learn from everything useful. Emperor Taizong said: "A husband can dress himself with bronze as a mirror; Taking history as a mirror, we can know the rise and fall; Take people as a mirror, you can know the gains and losses. I have kept these three mirrors in case I pass by. " [27] History is the record of predecessors' footprints. Both successful experience and failed lessons are precious spiritual wealth left by predecessors to future generations. Any ruling class, group or individual, whether consciously or unconsciously, will always learn from the experiences and lessons of predecessors-either absorbing their successful experiences or repeating their failures. Because of this, there is always a shadow of history in our real life. In other words, tradition and reality are always closely intertwined, and no subjective idea can be separated. As a feudal emperor, Li Shimin can learn from history wisely, prevent mistakes and safeguard the rule of the landlord class. Isn't the proletariat, whose responsibility is to liberate all mankind today, more justified and qualified to do better than they are?