How to evaluate China's traditional legal culture?

Throughout the ancient society of China, we will find that from Qin and Han Dynasties to Ming and Qing Dynasties, China

The social nature, political structure and legal system of the country have not changed because of the dynasty.

Endlessly overlapping and changing, on the contrary, it is always in a stable state. this is not

Can it be attributed to the all-round and deep influence of Confucianism on China society?

The ring. On the one hand, the influence of Confucianism has accumulated into the deep nature of the Chinese nation.

On the other hand, Ge He's psychological core has created the glorious history of ancient China and

Brilliant legal culture. In the long historical process, the traditional laws of China

Under the influence of Confucianism, culture gradually formed its own unique spirit.

Personality and institutional characteristics.

First, the influence of "theory of good nature" on the development of traditional legal culture in China.

The development of China's traditional legal culture at every stage is similar to that of Confucianism at that time.

The development of family thought adapts to and is strongly influenced and restricted by it. Confucianists

The theory of human nature is the philosophical basis of China's traditional legal culture, while the theory of "good nature" is

It is the core and essence of Confucian theory of human nature and the development of traditional legal culture in China.

The exhibition has a far-reaching influence in history.

As early as the Spring and Autumn Period, Confucius put forward that "sex is similar, learning is far away".

It means that most people have almost the same innate nature and temperament, but after that,

The habits of heaven, with the distinction between good and evil, are slowly far away. Plus its consistency

By advocating "benevolence", we can see that Confucius has obvious kindness tendency.

Mencius originated from Confucius and developed it, and clearly put forward "the essence of human nature"

If you are good, you will go underwater. There is no shortage of people and water, [1] thinks.

Human nature is good, like water.

On the basis of "good nature", Confucius and Mencius put the inherent goodness in people's hearts into practice.

Gratitude is regarded as the most fundamental way to govern the country, and human nature is good.

Therefore, people have the possibility of self-reliance and self-redemption. And eternal kindness

Promotion enables people to constantly push their lives to a new height.

In this way, the most fundamental source of strength for people to be saved lies in themselves and in people.

Conscious and voluntary nature is good, and when nature regulates human behavior,

Law as an external mandatory norm is not important.

So Confucius and Mencius chose morality between morality and law and tried to mention it.

Advocate "ruling the country by virtue" and strive to exert moral sense to ease social contradictions.

To realize the harmony and tranquility of social order, put education in the first place and think about it.

It is a better ruling method than criminal politics, further pointing out that morality and ethics are civilized.

Fundamental prohibition of crime is the most thorough way to prevent crime.

Based on good nature, although Confucius and Mencius despised the function of law, they did not deny it.

The necessity of law. Because human nature is constantly changing, moral education cannot be immune to it.

Ren, you need legal help. For example, Confucius heard Zheng's "being a ruler"

Hearing the news of killing the thief, I said, "Good! The government is lenient, the people are slow, and if they are slow, correct them.

The momentum is fierce. Use the people's disability fiercely, and the people's disability is lenient. Wide with fierce, fierce with bandwidth,

Politics is based on harmony. "[2] here embodies the justice, morality and punishment of combining leniency with severity.

Thought. However, on the whole, moral education is always the master.

Section, and political punishment as an auxiliary means, its role and purpose is to promote morality.

But the auxiliary role of law should be positive and complementary, not moral or ethical.

Purposes, such as kindness and leniency, are opposite. In principle, the application of punishment advocates a lighter punishment.

Punishment, against heavy punishment; Advocate "saving punishment" and "thin tax" So Confucius and Mencius went to prison.

In principle, the application of punishment advocates light punishment and opposes heavy punishment; Advocate "saving punishment",

"Thin tax". Advocating light punishment and opposing heavy punishment are also legal principles of Confucianism and Legalists.

One of the important signs of ideological opposition.

The relative contempt for the role of law makes Confucianism pay attention to the relationship between etiquette and law.

Emphasize the rule of courtesy, the rule of virtue in the relationship between Germany and law, and the relationship between man and law.

This department emphasizes the rule of man. "Rule by courtesy", "Rule by virtue" and "Rule by man" are the foundations of Confucianism.

Legal concept is the core of Confucian legal thought and China traditional legal culture.

On this basis, the basic model of China's traditional legal culture is constantly developing.

Exhibition and perfection, so Confucius and Mencius' theory of good nature is the traditional legal culture of China.

The foundation of success.

Second, the development of Confucian people-oriented thought to China traditional legal culture.

The influence of

The word "people-oriented" originated in the Yin and Zhou Dynasties, and was respected by Confucianism and eventually became

The Influence of Confucianism on the Development of Traditional Legal Culture in China

(A) the connotation of people-oriented thinking

1. "Gui Min"

That is, people are the most important and "people" are the main body. Mencius advocated that "the people are precious and the country is good."

Secondly, the monarch is bright ",[3] is a direct reflection of this idea.

2. "Support the people"

"attaching importance to the people" emphasizes putting people in an important position, and "nurturing the people" is

Specific actions and measures under the guidance of people-oriented consciousness such as "people-oriented"

There is a system ",[4] we can't plunder the people's wealth too much. If the people are rich, the country will be rich.

The family will naturally have money.

3. Self-discipline of rulers

On the basis of "attaching importance to people" and "cultivating people", "people-oriented" should also include rule.

Self-discipline means strengthening the cultivation of the rulers.

(B) China's people-oriented thought of the development of traditional legal culture.

"People-oriented" is based on "people", so everything in the country

All major policies should be people-oriented, not the rulers' own likes and dislikes.

Take action, or you will lose your country. People-oriented thought is based on ancient political theory.

Foundation, law is an external tool to maintain this foundation. So in

Under the influence of Confucian people-oriented thought, people can live and work in peace and contentment.

Only by fundamentally reducing crime can the country maintain long-term stability, and at the same time care for and attach importance to the people.

People's livelihood has become an important part of China's excellent traditional culture, so it is in the middle.

The formation and development of ancient Chinese legal culture was branded as "people-oriented", and

Characterized by humanism.

As early as the Western Zhou Dynasty, the rulers emphasized "prudence in punishment", especially since the Han Dynasty.

After Emperor Wu of the Han Dynasty adopted Dong Zhongshu's "exclusive respect for Confucianism", the people-oriented theory went further.

The political ideal of stepping into the ruling class. Reflected in the guiding ideology of legislation

It was combined with "morality first, supplemented by punishment" and "etiquette", which was basically followed by later rulers.

According to this theory. For example, during Emperor Taizong's reign, he insisted on "saving the people first" and "leveling the world".

As the guiding ideology of legislation, the law combines leniency with severity. In addition, the ancient emperors

Many imperial edicts and ministers' memorials often quote Confucian classics when they are published.

Canon documents explain the legitimacy and authority of their imperial edicts and enhance their appeal.

People-oriented theory has become the general guidance of ancient legislative practice.

This shows that China's legal culture has a very obvious people-oriented feature.

Popular support is closely related to the life and death of the ruling class. "too.

"People's heart" is embodied in the view of legal culture, that is, it emphasizes that rulers cannot be "independent"

Music ",should give priority to the interests of ordinary people. Rulers cultivate self-discipline and advocate

The legal concept of "saint politics" controls the rulers.

Selfishness alleviates social contradictions and makes China's traditional legal culture "temper justice with mercy"

Punishment "and" cherishing human life "have strong humanistic characteristics.

Third, the development of Confucian concept of justice and benefit to China traditional legal culture.

affect

Under the influence of "the theory of good nature" and people-oriented thought, China's legal culture

It laid the foundation of "morality is the mainstay of punishment" and "courtesy serves the country", while the Confucian view of justice and benefit

This concept makes China's ancient law more important than the people, even in the field of private law.

It presents obvious cultural characteristics of public law, that is, emphasizing justice over profit.

The traditional Confucian culture in China has lost the existence of "individual" and there is no individual.

The status of rights, therefore, there is no abstract and equal personality in law, and it cannot be.

Individuals have absolute property rights and the right to free circulation.

Moreover, under the pressure of the cultural background of Confucian concept of justice and benefit, "businessmen have no self."

Values, but also belong to the whole set of values of literati ",[5] so" heavy.

The situation of "people despise business" and "emphasizing agriculture and restraining business" lasted for thousands of years in feudal society.

The civil and commercial acts exercised by businessmen are not valued by law, which makes the China law

The law clearly shows the characteristics of "heavy punishment and light people".

For example, "being rich without mercy" and "ill-gotten wealth" are all based on the Confucian concept of justice and benefit.

Negative evaluation behavior and unjust enrichment behavior; There are also "childlike innocence" and "genuine"

"Value for money" and so on, is the affirmation of the behavior that Confucianism benefits from doing.

Sexual evaluation, as for marriage, inheritance and other fields involving identity relations, is every

Take the division of righteousness and benefit as the standard.

In ancient rural society, most civil disputes occurred between relatives, friends and neighbors.

Between, mostly to mediate interest litigation. In the process of mediation, often as far as possible.

Through some persuasion that values righteousness over profit, disputes have been resolved, and some of them have not reached the official level.

The government can't make a judgment, and the government also applies it to interests. Here, Confucianism is just and beneficial.

Views have become the first source of law they consider and cite, but how to distinguish wealth?

The interests of property rights and creditor's rights are in a secondary position. 〔6〕

The provisions of ancient laws and regulations in China can also explain the ancient laws in China.

The law is selfish and despises business. The law of criminal law is perfect, but the people concerned

Commercial legal provisions are only attached to various criminal laws sporadically, but

Only exists as a vassal. In the case of incomplete laws and decrees, the law

Officials can only be based on customs, conventions, conscience, justice, etc. In short, one

One word-righteousness. In Confucianism, righteousness is the core of etiquette, and etiquette is used to regulate it.

Fan society can achieve the effect of valuing righteousness over profit, thus making the whole society orderly.

Orderly, and things are broken by law often make people pursue fame and fortune, which is not conducive to the inner self.

With the improvement of province and morality, order will eventually be destroyed, so justice is valued over profit.

It is an important internal reason that Confucianism advocates that rule by virtue is more important than rule by punishment.

Ancient Chinese legal culture also has strong characteristics of public law culture in the field of private law.