What is the modern significance of Confucianism?

Comparison between Confucianism and Legalism and Its Modern Significance

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Throughout the history of ancient Chinese legal thought, various theories are like bright stars in the sky. However, as far as its influence is concerned, Confucianism and Legalism are two influential schools. It can be said that the traditional legal system in China was formed under the constant influence of Confucianism and Legalism. ① The research of the two plays an important role and influence on the contemporary strategy of governing the country according to law and people-oriented.

First, an overview of Confucianism ②

Confucianism basically adheres to the legislative principles of "pro" and "respect", maintains "rule by courtesy", advocates "rule by virtue" and attaches importance to "rule by man". Confucianism had a great influence on feudal society and was regarded as orthodox by feudal rulers for a long time.

The fundamental meaning of Confucian "rule by courtesy" is "difference", even if the noble, the humble, the old and the young have their own special code of conduct. Only when aristocrats, young and old, old and young, and relatives and friends have their own rituals can we realize the ideal society of Jun Jun, minister, father, son, brother, brother, husband and wife in the eyes of Confucianism. The governance of a country depends on the stability of hierarchical order. Confucian "ceremony" is also a form of law. It takes the maintenance of patriarchal hierarchy as its core, and it will be punished by "punishment" if it violates the norms of "ceremony"

The Confucian theory of "ruling by virtue" is to advocate moral edification and education. Confucianism believes that no matter whether human nature is good or evil, people can be influenced and educated by morality. This kind of education is a psychological change, which makes people feel good and ashamed but not evil. This is the most thorough, fundamental and positive way, which is beyond the reach of legal sanctions.

The Confucian theory of "rule by man" attaches importance to the particularity of man, his possible moral development and his sympathy, and manages his rule as a changeable, complex and ethical "man". From this perspective, "rule by virtue" is closely related to "rule by man". "Rule by virtue" emphasizes the process of enlightenment, while "rule by man" emphasizes the moralist himself, which is a kind of saint politics. Because Confucianism believes that "personality" has great appeal, on this basis, it has developed into extreme "rule of man" doctrine such as "governing the people for politics" and "governing the people cannot".

Second, the rule of law in the ancient sense ③

It can be said that legalists' legal thought is a "new learning" in the Spring and Autumn Period and the Warring States Period. The so-called "new learning" is relative to the "old learning" represented by Confucianism. The difference between "new learning" and "old learning" comes down to the difference between "rule by law" and "rule by courtesy" and "rule by virtue" and "rule by man".

Legalists' "rule of law" has its own characteristics: advocating intervention and opposing laissez-faire; Reject the doctrine of "rule by man" and adopt the doctrine of "rule by law" alone; Reject "rule by courtesy" and deny the existence of natural law; Advocate the supremacy of the country, and the interests of social groups and even blood relatives must be subordinate to the national interests of the monarch; Oppose "guided by circumstances". Legalists' thoughts take materialism as the starting point, and often pay attention to the environment here and now, and firmly believe that the government is omnipotent, but they do not recognize the sanctity of human personality. Its politics advocates strict interference, but interference must be based on objective "material standards." This "material standard" is regarded as a "rule and balance" law, and rulers are not allowed to convict at will. People can be free and equal only within the scope permitted by law. The spiritual essence of "rule by law" is "rule by things", so it is also called "rule by things". On the one hand, it is an objective, artificial and fixed method to measure all people by objective standards such as rules, trade-offs, scales and sizes; On the other hand, people are treated as things. In other words, people are regarded as things that can be accurately measured by fixed and objective rules, dimensions and other "things", regardless of people's special initiative.

Compared with the Confucian "rule by courtesy", the legalist "rule by law" opposes the patriarchal hierarchy and hereditary system, demands equality and law-abiding, and advocates the formulation and publication of written laws. Anything that is not intimate, expensive or cheap is illegal. Therefore, the main difference between "rule by courtesy" and "rule by law" is not the means of sanctions, but the content of the code of conduct itself. That is to say, the difference between the "different" code of conduct and the unified code of conduct divorced from the law. Compared with "rule by virtue", "rule by law" belittles or completely denies the role of moral education, which is related to the fact that most Confucianism advocates good human nature and Legalists advocate evil human nature.

Legalists' theory of "rule of law" is commendable at first, because it grasps the law of historical evolution and creates it according to the law of historical evolution, and opposes conservatism and utopianism. Its "practical spirit" and "utilitarianism" are all produced from this. However, its defect is that it ignores the complementary role of "courtesy", "virtue", "man" and "law" in politics. There are two reasons why "rule of law" is short-lived: First, rule by courtesy and rule by man has long been deeply rooted in people's hearts, and * * * is the enemy of "rule of law". Although "rule of law" prevailed for a while, it was finally conquered by the theory of "rule by courtesy". Second, legalists put too much emphasis on national interests and ignore personal interests. Although it can save the temporary disadvantage, it cannot guarantee the long-term stability of society. This is not only the reason why the thought of "rule of law" is underdeveloped after the Han Dynasty, but also the reason why law and jurisprudence are underdeveloped. ②

Third, the rule of law in the modern sense.

It is worth noting that the meaning of "rule of law" in ancient China is quite different from what we advocate today. 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. In Aristotle's view, the rule of law means that everything is governed by law, and the law that everyone abides by is a good law. This simple generalization only reflects the basic spirit of the rule of law. However, Aristotle presupposes here that the rule of law should be based on good law. To this end, he established some legislative principles. So, what is a good law? Especially from a modern point of view, what kind of good laws do we need? The law comes from the monarch, which is not a good law; It is not a good law to impose severe punishment on execution; It is not good law to punish doctors or be polite to Shu Ren. A good law must reflect the general will of all the people in society, the rational will of every member of society, and protect the human rights of every member. It is a public contract signed by every member of the whole society. If a person violates his promise, he will bear the "responsibility for breach of contract" and be punished. Therefore, the rule of law requires that the law of a society ruled by law itself should be refined with the consent of the people, not just reflecting the will of one person or some people, otherwise it will not be universally observed; Require the law to protect the rights of every member of society, not just to give privileges to some people. The basic spirit of the rule of law is fairness, justice, freedom and rights, and the restriction of power. The rule of law is also the concrete embodiment and guarantee of these basic democratic principles, and the foundation of good law and even the rule of law is democracy. In a word, democracy is the foundation of the rule of law, and the rule of law is the concrete content and form of the democratic system.

Democracy, the rule of law and the market are all the first to grow and mature in western society. Since the reform and opening up, China has also introduced and transplanted many western legal systems in its legal system construction. However, the introduction and transplantation of legal system is far from being as simple as the change of production mode or the improvement of technology. The effective exertion of the norms and restrictive functions of transplant law depends on a certain cultural foundation, whether the human resources in the transplant area contain the gene of rule of law, and the compatibility between the vegetation in the transplant area and the spirit of rule of law. The phenomenon of "crossing the Huaihe River into a bitter orange" is also applicable to the humanistic world. "The modernization of the rule of law is not a simple process of identifying with European and American countries, but also contains different value orientations and mode choices of modernization in each country from their respective historical and cultural perspectives, and must also have a correct positioning and handling of their own traditions." Democracy and the rule of law are symbols of western culture and carriers of western values. Then, can the spirit of rule of law in western culture be rooted in the solid soil of Confucian culture in China? Can China's traditional culture with Confucian ethics as its core inherit and transform this western culture ruled by law? We can see that China society lacks the historical tradition of "rule of law", that is, in social order and norms, "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, reference and enlightenment.

Although the rule of law advocated today is almost different from the ancient "rule of law", it is undeniable that there are still many places worthy of our recognition in ancient legalists. More than two thousand years ago, they realized that law is an objective and fair criterion to regulate and measure people's behavior, and it is objective. Legalists put forward that "no intimacy, no servility, no separation from the law" is an affirmation of the equal application of the law. Legalist thought strongly advocates the authority and binding force of law, emphasizing that people, officials and even monarchs should abide by the law and act according to law. They advocate the publication of written laws, which should be concise, unified, stable, operable and predictable. ① These positive aspects of legalist thought are worth learning and drawing lessons from, which is beneficial to today's rule of law construction.

At the same time, we should see that the legalist policy of severely punishing ignorant people, the way of suppressing discussion and the autocratic monarchy are incompatible with democracy and freedom, not to mention the rule of law we want today. Due to the long-term feudal rule and absolute monarchy, people lack the concept of rule of law. Today, China advocates and implements the rule of law, but "the implementation of the rule of law is not to replace the inherent cultural traditions with articles, but to integrate people's beliefs in law, law and the rule of law into people's blood and into the cultural traditions handed down from generation to generation." It is an important historical task to improve people's legal quality, enhance people's awareness of the rule of law and instill the concept of freedom and equality. If people's legal consciousness and legal concept are weak and their ideological and political quality is low, even if there are relatively sound laws and systems, they will not work or even exist in name only because they are not observed. Therefore, "people" is still the key. In the traditional culture of ancient Greece, the supreme authority of law is linked with moral ideals such as civil freedom and equality and constitutionalism. "The relationship between law and human nature and between law and power is also explained from the goodness of the city-state, which makes the concept of rule of law have an ideal character beyond the particularity of law and become a higher level. If we just stay at the legal level, don't go deep into the moral ideal level, and don't discuss the value foundation and value root of the law, it is impossible to finally establish the concept of the rule of law. " (2) Power obeys the law and implements the rule of law rather than the rule of man, otherwise the country will lose its true essence and characteristics. Cicero has a famous saying: "We are servants of the law, so that we can be free." These traditions of westerners tell us that their tradition of "ruling by law" is as old as ours. China people chose (the choice here is not subjective will) "rule by virtue" as its basis, and it has influenced it to this day. The establishment of the "rule of law" order is by no means a one-off event. Westerners choose "rule of law" as their foundation, which also affects today. But no matter what it is, it has not left the fundamental value subject of "people". This is actually one of the most important resources left by the Confucian cultural thought of "ruling by virtue". Therefore, improving the quality of "rule by law" and "rule by virtue" of everyone in China is the most fundamental task of spiritual civilization construction at present, and it is also the fundamental way for us to achieve the goal of rule by law. Only by taking the essence and discarding the dross from the profound cultural soil of Confucianism and Legalism can we guide a broad road for today's rule of law construction and really use it for us.

The Modern Significance of Confucianism

Professor Luo from the Chinese Department of Stockholm University, Sweden

Since China people began to pursue modernization, the position of Confucianism in China culture has changed greatly. Great changes have taken place in the position of Confucianism in China culture since Ming and Qing Dynasties.

Everyone should have the opportunity to refer to the resources provided by Confucian tradition. China people and East Asians in particular should have this opportunity. But just like other cultural traditions, Confucian traditions belong to all mankind, so Confucian literature should be translated into various languages as much as possible and provided to everyone.

As a Swede, I must admit that only The Analects of Confucius has been translated into Swedish. This is a blank that my generation of Swedish sinologists should fill. Confucianism has been embodied as a universal world outlook and outlook on life from the very beginning. In today's words, China's ancient Confucianism is understood as the core of human civilization. Therefore, at least in China, Confucianism is regarded as an inseparable part of civilization or culture.

Confucianism provides rich resources for modern people. Faced with these resources, modern people have the freedom to choose. They can absorb some components in the resources or discard some components.

But no matter what choice you make, Confucianism belongs to the treasure house of cultural heritage of all mankind. As a scholar who is interested in Confucianism, it is an important task for us to preserve and explain Confucian literature and enhance people's understanding of Confucian literature. No matter how you evaluate Confucianism, understanding this extremely colorful tradition will definitely enrich your life.

Overseas Edition of People's Daily (8th Edition, 2004, 65438+9th February, 2004)

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