Evaluation of Legal Thought

Abstract: Throughout the history of legal thought in ancient China, the doctrines of various schools of thought are as bright as the stars in the sky, but in terms of their influence, Confucianism and Legalism are the two influential schools of thought. It can be said that the traditional Chinese legal system is formed in the continuous role of Confucianism and Legalism. The study of both has an important role and influence on the contemporary strategy of ruling the country according to law and putting people first.

I. An Overview of Confucianism2

Confucianism basically adheres to the legislative principles of "kinship" and "respect", upholds the "rule of etiquette", and advocates the "rule of virtue". Confucianism had a great influence on feudal society and was long regarded as orthodox by feudal rulers.

The fundamental meaning of Confucianism's "rule of etiquette" is "difference", which means that nobility, inferiority, superiority, superiority and inferiority, as well as seniority and inferiority, each have their own special behavioral norms. The rule of the state depends on the stability of the hierarchical order. Confucian "ritual" is also a form of law. It is centered on the maintenance of the patriarchal hierarchy, and if the norms of the "rites" are violated, they will be punished by the "punishment".

Confucianism's doctrine of "moral governance" advocates the use of morality as a means of educating people. Confucianism believes that no matter what is good or bad in human nature, morality can be used to educate people. This kind of indoctrination is a kind of psychological transformation, so that the human heart is good, and knows shame but not treachery. This is the most thorough, fundamental and positive approach, and it is not something that can be achieved by legal sanctions.

Confucianism's "rule of man" is the idea that people are special, that they can develop morally, that they are compassionate, and that they are to be governed as "human beings" who are capable of change and who can make complex choices of their own initiative and ethical nature. The idea of "human being". From this point of view, there is a strong connection between "rule by virtue" and "rule by man". While "rule by virtue" emphasized the process of indoctrination, "rule by man" was a kind of politics of the virtuous, which emphasized the person who indoctrinated himself. Since Confucianism believes that "personality" has an overwhelming power of inspiration, it has developed on this basis into such extremes as "government by men" and "rule by men, but not by law". The first is the "rule of man" doctrine.

Second, the ancient meaning of the rule of law ③

It can be said that the legal thinking of the Legalist is the Spring and Autumn and Warring States period of the "new learning". The so-called "new learning" is relative to the "old learning" represented by Confucianism as the "rule of etiquette". The difference between the "new school" and the "old school" boiled down to "rule of law" and "rule of propriety", The difference between the "new school" and the "old school" boils down to the difference between the "rule of law" and the "rule of manners", the "rule of virtue" and the "rule of man".

The "rule of law" doctrine of the Legalists has its own characteristics: it advocates intervention and opposes laissez-faire; it rejects "rule of man" doctrine and gives sole rein to "rule of law" doctrine; it rejects "rule of propriety"; it rejects "rule of law"; and it rejects "rule of law". "Ritual rule", does not recognize the existence of natural law; advocate the supremacy of the state, social groups and even the interests of blood relative groups must be subordinate to the national interests of the monarch; opposed to the futile "rule of power". The Legalist thought took "materialism" as its starting point, often paying attention to the circumstances of the here and now, and convinced that the government was omnipotent, rather than recognizing the sanctity of human individuality. Its politics advocated strict intervention, but the intervention had to be based on an objective "material standard" as a tool. This "material standard" is the law, which is regarded as a "rule and balance" and does not allow the rulers to arbitrarily criminalize the hearts of the people. People can only be free and equal within the limits of the law. The spiritual essence of the "rule of law" is "the rule of things", so it is also called "rule of law" for "the rule of things". The rule of law is also known as "materialism". On the one hand, it is to measure all human beings by objective standards such as rules, weights and measures, buckets, dimensions, and other objects like objective, artificial, and fixed laws; on the other hand, it is to treat human beings as objects to be governed. That is, to treat people as a fixed, objective rules, dimensions, and other "object standards" to accurately measure things, without taking into account the special human mobility.

Compared with Confucianism's "rule of etiquette", Legalism's "rule of law" opposes patriarchal hierarchies and hereditary systems, calls for equality and compliance with the law, and advocates the development and publication of written law, not to differentiate between the affinity, not to differentiate between the noble and the lowly, and to a break in the law. So the main difference between the "rule of etiquette" and the "rule of law" does not lie in the means of sanction, but in the content of the norms of behavior itself. That is to say, the difference between the behavioral norms of "difference" between the noble and the lowly, the superior and the inferior, the young and the old, the close and the distant and the uniform behavioral norms of the law. Compared with the "rule of morality", the "rule of law", the doctrine of "rule of law" to despise or completely deny the role of moral education, which is related to the majority of Confucianism advocate human nature is good, while the legalists advocate human nature is evil.

The "rule of law" doctrine of Legalism is firstly praiseworthy that it grasps the law of historical evolution and creates in accordance with the law of historical evolution, opposing conservatism and fantasy. Its "spirit of practice" and "utilitarianism" are derived from it. However, its defect lies in its excessive neglect of the role of "rites", "virtues", "man" and "law" in political interdependence. The role of the "rule of law" doctrine The "rule of law" is short-lived, for two reasons: First, because of the ritualism, rule of man has long been y rooted in people's hearts and minds, and *** with the "rule of law" is the enemy. The "rule of law" doctrine, although it prevailed for a while, but was ultimately conquered by the "rule of etiquette" doctrine. Secondly, the Legalists emphasized the national interest to the detriment of the individual, which could save the country from a short period of time, but could not ensure the long-term stability of the society. This is not only the reason why the idea of "rule of law" did not develop after the Han Dynasty, but also the reason why law and jurisprudence did not develop. ②

Third, the modern meaning of the rule of law

It is worth noting that the meaning of the "rule of law" in ancient China and the meaning of the "rule of law" that we advocate today are very different. In fact, the rule of law in the modern sense did not exist in ancient China.

So what is the rule of law? The rule of law originated in Western society, and in the view of Aristotle, the rule of law means that everything is governed by law, and the laws that everyone follows are good laws. This brief generalization plainly reflects the basic spirit of the rule of law. However, Aristotle here presupposes a premise: the rule of law should be based on good law. To this end, he established some legislative principles. So, what is good law? Especially from a modern perspective, what kind of good law do we require? The law from the king will not be a good law; the execution of heavy and light, harsh and strict law is not a good law; the punishment is not on the doctor, the rites are not common people is not a good law. Good law must embody the public will of all the people of the society, reflect the rational will of every member of the society, and guarantee the human rights of every member; it is a public **** contract signed by every member of the society **** with the same participation. If people violate it, they are breaking their own promise and are liable for "breach of contract" and are subject to sanctions. Therefore, the rule of law requires that the laws of a society governed by the rule of law should be a distillation of the people's *** consent, not just a reflection of the will of a certain person or a part of the people, otherwise it will not be universally observed; the law is required to guarantee the rights of every member of society, not just to grant privileges to certain people. The basic spirit of the rule of law is fairness, justice, freedom and rights, and the limitation of power. The rule of law is also the concrete embodiment and safeguard of these basic democratic principles, and good law and even the rule of law are based on democracy. In short, democracy is the basis of the rule of law, the rule of law is the specific content and form of the democratic system.

Democracy, the rule of law, the market are the first to grow and mature and perfected in Western society. Since the reform and opening up, China has also introduced and transplanted a lot of Western legal systems in the construction of the legal system. However, the introduction and transplantation of the legal system is far from being as simple as the transformation of production methods or the improvement of technology. The effective play of the normative constraints of the transplanted law depends on a certain cultural foundation, on whether the human resources of the implanted place contain the gene of the rule of law, and on the compatibility of the implanted vegetation with the spirit of the rule of law. The phenomenon of "over the Huai into Hovenia" also applies to the humanities world. "The modernization of the rule of law is not a simple process of identification with Europe and the United States, which also implies the different values and modes of modernization chosen by each country in their own historical and cultural perspectives, and the need to have a correct orientation and treatment of their own traditions." Democracy and the rule of law are symbols of Western culture and carriers of Western values, so can the spirit of the rule of law in Western culture be rooted in China's thick Confucian cultural soil? Can the traditional Chinese culture with Confucian ethics as its core take over and transform the Western culture of the rule of law? We can see that Chinese society lacks the historical tradition of the "rule of law", that is, in the social order and norms, the "rule of law" has never been dominant, which will inevitably bring difficulties to the establishment of the "rule of law" social order in contemporary China. "

Fourth

Fourth, reference and inspiration

While the rule of law advocated today is almost different from the "rule of law" in ancient times, it is undeniable that there are still many aspects of the ancient legalists that are worthy of our recognition. More than 2,000 years ago, they already recognized that law is an objective and fair criterion used to regulate and measure people's behavior, and is objective in nature. The Legalist's proposal of "not distinguishing between the close and the distant, not alienating the noble and the lowly, but breaking the law" is an affirmation of the equal application of the law. The Legalists strongly advocated the authority and binding force of the law, emphasizing that people, officials and even the ruler of the state should abide by the law and act according to law. They advocated that written laws should be published, and that laws should be clear and concise, with uniformity and stability as well as operability and predictability, and so on. ① All these positive aspects of Legalist thought are worth studying and learning from, and are favorable to the construction of the rule of law today.

At the same time, we have to see that the Legalist's policy of heavy punishment and fooling the people, the suppression of debate and the autocratic way of kingship are incompatible with democracy and freedom, not to mention the rule of law that we want today. As a result of the long period of feudal rule and autocratic kingship, the concept of the rule of law was lacking in people's mindset. Today China advocates the rule of law and the implementation of the rule of law, but "the implementation of the rule of law does not lie in the replacement of inherent cultural traditions with legal codes, but rather in the incorporation of people's belief in the law, the law and the rule of law into people's bloodstreams and into cultural traditions that have been passed down from generation to generation." Improving people's legal quality, enhancing their awareness of the rule of law, and instilling a sense of freedom and equality is an important historical task. If people's legal awareness and concept of the rule of law are weak, and their ideological and political quality is low, even if there are sound and perfect laws and systems, they will not work or even become ineffective because they are not complied with. Therefore, "people" is still the key. In the traditional culture of ancient Greece, the supreme authority of the law was linked to the moral ideals of freedom and equality of citizens and constitutional government. "The relationship between law and human nature, law and power, are also from the city-state 'good' to explain, so that the concept of the rule of law has a kind of transcendence of the specificity of the law and become a higher level of ideal conceptual character. If only at the level of law without going deeper into the level of moral ideals, without exploring the value basis and value roots of law, there is no way to finally establish the concept of the rule of law." ② Power is subordinate to law and the rule of law is practiced rather than the rule of man, otherwise the state loses its true nature and character. Cicero famously said, "We are servants of the law so that we may be free." These traditions of the West tell us that their tradition of the "rule of law" is as old and as longstanding as our tradition of the "rule of virtue". The Chinese chose (and the choice here is not subjective) the "rule of virtue" as their foundation, and it has influenced them to the present day, and the establishment of the "rule of law" is not an overnight process. Westerners have chosen the "rule of law" as their foundation, and it has also influenced them to this day. However, no matter what they take as the basis, they have not left "human beings" as the fundamental subject of value. This is in fact one of the most important resources left to us by the Confucian cultural idea of "virtue". Therefore, improving the "rule of law" and "moral governance" literacy of each and every Chinese person is the most fundamental task in the construction of the current spiritual civilization, and is also the fundamental way to achieve the goal of the rule of law. Only by taking the best and removing the worst from the profound cultural soil of Confucianism and Legalism can the rule of law today be guided on a broad and smooth path and be truly utilized.

The modern significance of Confucianism

Rodopil, a professor of Chinese at Stockholm University in Sweden

Since the Chinese began to pursue modernization, the status of Confucianism in Chinese culture has undergone a very big change. The position of Confucianism on Chinese culture has changed very much since the Ming and Qing dynasties.

Everyone should have the opportunity to refer to the resources provided by the Confucian tradition. Chinese and East Asians in particular should have that opportunity. But just like any other cultural tradition, the Confucian tradition belongs to all of humanity, so the Confucian intellectual literature should be translated into as many languages as possible and made available to everyone.

As a Swede, I must admit that among the Confucian classics, only the Analects has been translated into Swedish so far. This is a gap that Swedish sinologists of my generation should fill. From the very beginning Confucianism has embodied a universal worldview and outlook on life. In today's terms, in ancient China Confucianism was understood to be at the heart of human civilization. As a result, at least in China, Confucianism was seen as an integral part of civilization or culture.

Confucianism has provided modern man with very rich resources. In the face of these resources, modern man has a freedom of choice, and can either absorb some components of the resources or discard some.

But no matter what choice you make, Confucianism belongs to the treasury of cultural heritage of all mankind. Preserving and interpreting the literature of Confucianism and enhancing people's understanding of it is an important task for us as scholars interested in Confucianism. Regardless of your opinion of Confucianism, understanding this extremely colorful tradition will surely make your life richer.

People's Daily Overseas Edition (Eighth Edition, December 09, 2004)

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