Understanding of feudal orthodox legal thought

The content and characteristics of feudal orthodox legal thought were formed in the long-term legal practice. From the ideological origin, most of them are extracted from the ideological materials of the pre-Qin era. Some of these ideological materials were originally antagonistic, but they gradually merged into one in the political and legal practice of feudal society and kept pace. All these represent the unique contents and characteristics of China's legal system that are not available in other legal systems. Therefore, they not only belong to the category of feudal orthodox legal thought, but also belong to the whole Chinese legal system.

The first is the legal tradition of combining "rule by courtesy" with "rule by law"

Legalization is a legal tradition and a value basis for guiding legal practice (legislation, judicature and thinking). It determines the content, characteristics and development direction of legal practice. Generally speaking, a nation's legal tradition is unitary, while China's feudal legal tradition is dualistic, namely "rule by courtesy" and "rule by law".

"Rule by Rites" refers to the code of conduct and ethical concepts of patriarchal clan system since ancient times. "Rule of law" is the autocratic monarchy bureaucracy of the emerging landlord class in the Spring and Autumn Period and the Warring States Period. During the Spring and Autumn Period and the Warring States Period, the opposition between "rule by courtesy" and "rule by law" was mainly manifested in:

First, the opposition between patriarchal aristocratic regime and centralized bureaucratic regime; Second, the opposition between the ruling principles of "serving people with virtue" and "serving people with strength"; Thirdly, it emphasizes the opposition between "rule by man" in case law and "rule by law" in written law. This is the basic content of the opposition between Confucianism and law in the pre-Qin period. However, this overall opposition does not rule out local unity. This partial unity is mainly manifested in the following aspects: first, in terms of class attributes, Confucianism and France are all representatives of the feudal class, the former represents the feudal aristocracy transformed from slave owners and the latter represents the landlord class rising from civilians; Second, legalists generally do not deny hierarchical privilege. Legalists not only maintain the hereditary privilege of the monarch's surname, but also maintain the privileges of officials at all levels. The spiritual differences between the same ceremonies are the same; Third, both of them maintain the natural economy and patriarchal society, but in different ways. Confucianism moralizes, while legalists reward and punish. Qin law gives paternal parents various privileges (such as "no prosecution"), which proves that the state gives paternal parents some judicial power in exchange for family loyalty to the dynasty; Fourth, ideologically, Confucianism generally does not deny the role of law and punishment, while Legalists generally do not deny patriarchal ethics, but the ways to achieve it are different. Confucianism emphasizes the inner ethical feelings of loyalty, filial piety and benevolence, so it emphasizes education; Legalists emphasize external performance, so they advocate law. As Shang Jun's Book of Painting Strategies says: "The so-called righteous person is loyal to his ministers, filial to his sons, and less polite, which is different from men and women. The unjust person accidentally eats to death. This is the common law. " Legal behavior has also become a moral behavior. "Han Feizi's Loyalty and Filial Piety": "The minister is the king, the son is the father and the wife is the husband. The combination of the three will rule the world, and the three will be chaotic. " It is also an external behavior that emphasizes "things". Legalists don't care about the ethical feelings of loyalty and filial piety. Bamboo Slips of Qin Tomb in Sleeping Tiger Land: The Way to Be an Official: "A monarch is loyal to a minister, a father is filial, and politics is the foundation." Caring, loyalty, kindness and filial piety are all special behaviors confirmed by law, which all reflect the desire of the landlord class to maintain the order of the ruling class and the family with the patriarchal concept. There is a subtle harmony between the development of Legalists from the early Warring States period to the late Warring States period and the development of Confucianism from Confucius and Mencius to Xun Kuang. Both Confucianism and Legalism have turned from ideal to practicality. Confucianism tolerates centralization and autocracy, while legalists defend the patriarchal hierarchy. They all emphasize the unity of etiquette and law, not the opposition of etiquette and law. Qin law protects the privileges of officials and paternal parents, which is tantamount to the local codification of "rule by courtesy". "Rule by courtesy" and "rule by law" are the products of natural economy and patriarchal society. The only difference between them is that Confucianism maintains the patriarchal society and the feudal natural economy, while Legalists maintain the feudal natural economy and the patriarchal society. This is a wonderful result, all roads lead to the same goal.

After the Western Han Dynasty, Confucianism was regarded as an official and authentic scholarship, which was a real declaration. The continued existence of centralized monarchy is an invisible declaration. The survival and development of patriarchal society cells is the solid foundation of "rule by courtesy"; The consolidation and development of centralized bureaucracy continues to call for "rule of law". The codification of Confucianism and the Confucianism of legalist law combine the two. The combination of "rule by courtesy" and "rule by law" is reflected in "Ten evils" in Tang Law. Among the "ten evils", four evils are to maintain patriarchal order, and four evils are to maintain centralized and autocratic regime. It is a miracle that this dual legal tradition is seamlessly combined under the special social conditions in China. The ancient ceremony was finally promoted to law by the state, which played a powerful role in the family society. Legalist laws play a unique role in directing the huge bureaucratic machine. Between the lines of law and legal system, the spirit of inequality is everywhere, such as respect and inferiority, seniority, closeness, men and women, dignity and inferiority, which is an important reason why China's legal system is different from other legal systems.

In short, the value of "rule by courtesy" lies in making "people different from animals" or "people are people" This "person" is not an individual natural person, but a "person" in the patriarchal sense. That is, people exist as a knot in the clan blood network. The value of "rule of law" lies in making subjects play a small role in the big machine of centralization and autocracy, and it is a link to realize imperial power. This dual legal value makes it impossible for people to be human beings and must fulfill the dual obligations entrusted by the family and the state. Feudal judges had to seek a balance between family law (etiquette) and national law.

Second, the policy of governing the country by combining "rule of virtue" with punishment.

During the Spring and Autumn Period and the Warring States Period, Confucianism advocated "ruling by virtue", "benevolent government" and "serving people with virtue", which were diametrically opposed to Legalists' ideas of "ruling the country according to law", "serving people with punishment" and "serving people with strength". It can be said that Confucianism is too idealistic because it is difficult to operate; Legalists' ideas are too simplistic because they lack practical experience. After Qin and Han Dynasties, the feudal rulers learned the lesson of Qin Dynasty's tyrannical subjugation and turned to rule by virtue. To rule a vast country, it is necessary to use legal punishment. Without virtue, the people will rise up and rebel; Without punishment, local separatist forces will attack. It can be said that it was a historic choice for Emperor Wu of Han Dynasty to adopt Dong Zhongshu's suggestion. Dong Zhongshu's mysterious theory of "moral principal punishment and supplementary punishment"-on the one hand, puts Confucian "moral politics" in the first place, on the other hand, gives legalists a policy to implement punishment, ends it, and even sanctifies it. When the feudal dynasties formulated national policies, they all advertised "moral politics" to win the hearts of the people. And enlightenment measures are the first line of defense to prevent people from committing crimes. "Virtue politics" has a positive role in making rulers self-discipline, and its purpose is to achieve long-term stability. The political value of punishment lies in suppressing the people's resistance struggle and stopping the "offence and insurrection" within the ruling class. When imperial power and clan power are declared as gods, any act of resisting imperial power and clan power becomes blasphemy. It is not only legal but also reasonable to impose severe punishment on these rebels. Especially after the Tang Dynasty, when the "one size fits all" feudal code was declared to be in line with "justice", the sanctions for all criminal acts were just, so there was no need to be coy when using the penalty.

Besides Confucius and Dong Zhongshu, there were Zhu in the Southern Song Dynasty. Based on the difference of temperament, his theories of "morality, courtesy, politics, punishment" and "phase, beginning and end" have reached the highest level of understanding the relationship between morality and punishment. And "punishment cannot be abolished in the prosperous times, but it has not yet flourished", which summarizes the general views of feudal literati and public opinion on punishment. Punishment is openly used in administration, but public opinion does not praise it. In this way, on the one hand, it restricts the behavior of the rulers to some extent, on the other hand, it has the side effect of ignoring the law. The study of law and jurisprudence has become a sideline despised by sages, not to mention treating litigants as "litigants". This prejudice is not conducive to the normal development of legal thought and jurisprudence.

Third, the legal theory of combining "man" with "law"

The legal subject refers to the working procedure or way of legal practice (legislation and judicature). Such as statutory law, case law or a combination of the two. Legal thoughts and viewpoints are legal thoughts and one of the important contents of China's legal thought history.

There is a dialogue in Yin Wenzi under the avenue: "What is the difference between a saint and a holy law?" A: "The saints will come out, and the saints will come out." Liang Qichao explained in China's History of Legal Development: "It is concrete and intuitive to say that governance comes from saints, and it is abstract to say that governance comes from law." And pointed out: "Confucianism does not advocate simple and superficial rule of man, but actually reconciles rule of man with rule of law." From the perspective of jurisprudence, "law" is the collective legal consciousness that the ruling class has been codified through legislative procedures; "Man" is the legal consciousness of the ruling class, which is often expressed in the form of personal judgment and is not completely codified. "Law" is the macro-design of all behavioral norms by the state; "Man" is a microscopic evaluation of the facts of a specific case. Under the special background of the Spring and Autumn Period and the Warring States Period, "Man" and "Law" belong to different regimes (aristocratic regime and centralized regime), and the relationship between them is not so harmonious as antagonistic. Xunzi, as the forerunner of the unification of etiquette and law and the integration of Confucianism and law, paid more attention to the internal relationship between them. He pointed out: "The end of the rule of law is also the origin of the gentleman's law." "The law can't be independent, and the class can't go its own way." In his view, a real judge should "abide by the law and be deeper than its kind", "distinguish differences but not contradict, and listen to the text and argue", which can not only act strictly according to the law, but also "follow the class" and "push the class (and) wait for no good" under special circumstances. Only in this way can legislation and judicature be integrated, and the roles of "law" and "person" can be unified. In ancient China, insightful thinkers and politicians did not have the naive prejudice of "the supremacy of law". They not only attach importance to the overall control function of law, but also attach importance to the micro-adjustment function of man. As Zhu said in the Southern Song Dynasty: "Generally speaking, there must be disadvantages in legislation, and there can be no disadvantages, only people can be obtained." Qiu Tanrui of the Ming Dynasty also said: "Legalists keep their program, and changes in their access must be paid to others." This thought of combining "law" with "human" has become an important pillar of China's traditional legal thought. Its reflection in legal practice is a "mixed law" combining "written law" and "case law".

The basic characteristics of "mixed law" were once summarized by Xunzi, the great prophet of the landlord class: "Those who have laws follow the law and those who have no laws follow the rules." That is to say, in judicial trials, if there are express provisions in the law, the judgment shall be made according to law; If there is no explicit provision in the law, the previous precedent shall apply or the legal consciousness of the ruling class shall be followed. In the view of the ruling class, the role of written code is enormous. It maintains the unity of national legislation and judicature, standardizes the behavior of all subjects, and points out the standard for all members of society to judge whether words and deeds are right or wrong. So Xunzi said: "The end of the rule of law is also." Without this "end", there is no way to achieve "governance". However, they also realized that "the three-foot law is not enough to draw a path" and "the words in the torture book are limited and violated, so there is no way, so there is a system of temporary discussion, and we can't all follow the rules." Therefore, under special circumstances, it is a precedent for the ruling class to make a judgment by combining specific cases and using the legal consciousness and policy spirit of the ruling class. This precedent is not only the result of judicature, but also the result of new legislation, that is, "doing something in a new name". Its value lies in: first, it was cited by later trials to make up for the shortcomings of written codes; Second, create conditions for the introduction of more abstract laws and regulations. In this way, relatively stable written codes, cases arising from strain and decrees derived from cases emerge one after another. On the one hand, precedents communicate the connection between legislation and judicature; On the static side, the content of the case is more specific and comparable, and the law can be annotated, so the legal cases in the late feudal period are often merged. China's "mixed law" is different from both western continental law (statute law) and Anglo-American law (case law). It is unique because it has the advantages of both. This kind of legal style generally reflects the essential characteristics of legal practice and its movement law, and better maintains the social order beneficial to the ruling class.

The whole feudal society after the Western Han Dynasty, its legal system is a "mixed law" combining "written law" and "case law". When the society is stable, "written law" is in a dominant position; When the development of social life is accelerated and the original code is obviously not applicable, "case law" (such as stories, judgments, cases, etc. ) plays a leading role. Jurisprudence is often absorbed by the code. The dispute between "rule of man" and "rule of law" in feudal society no longer includes the content of political system, but only involves the evaluation of "written law" and "case law". When "case law" prevailed, some people came out to praise the ancient tradition of "discussing affairs by system". On the contrary, some people come out to emphasize the unity and dignity of the law. Later, the "rules of procedure" were institutionalized, that is, judges should not make arbitrary decisions when encountering difficult cases, but should report them to the court and be ruled by the emperor. The distinction between "rule by man" and "rule by law" has also been shelved, becoming "if the law is not specified, the law is impassable and will never change; Anyone who doesn't follow the rules has his own intentions, and there is no established theory. "What the law does not contain, then use the case. Finally, Xunzi's prediction was fulfilled: "Those who have laws must abide by them, and those who have no laws must follow the rules (precedent and legal awareness)".

China's "mixed method" and its theory are the reflection of the wisdom of ancient ancestors, and also the expression of the inherent regularity of legal practice. It not only constitutes an important feature of China's legal system, but also one of the outstanding achievements of China's legal system.