Confucian legal thought

Confucian Legal Thought (I) On "Rites for the Country" In the late Western Zhou Dynasty and the Spring and Autumn Period, the etiquette in the Western Zhou Dynasty went from bad to worse, to the point where "Rites collapsed and music was bad". At this time, a group of Confucian scholars, represented by Confucius, demanded to restore and strengthen a patriarchal hierarchy with aristocratic regime as the core, and advocated "paying attention to ceremony". However, they only followed the ceremony of the Western Zhou Dynasty in form, but their understanding and application of the ceremony was obviously different from that of the Western Zhou Dynasty in content. They reformed the ceremony of the Western Zhou Dynasty. Mainly in the following aspects. 1, they described the ceremony as the fundamental system of the country, that is, the system of establishing and maintaining a unified aristocratic regime and hierarchical order of monarch and minister. The so-called "courtesy is the country" embodies the Confucian understanding of the status and role of etiquette in politics. The difference between this ritual system and the ritual system of the Western Zhou Dynasty lies in: First, the ritual system of the Western Zhou Dynasty is a specific provision on politics, military affairs and sacrifices. And ethics is the fundamental system of the country, and its status is the same as the current constitution. Secondly, the rites of the Western Zhou Dynasty are the rules and records of "not staying in Shu Ren", while the Confucian rites, as the fundamental system of the country, become the rules and records of "not staying in Shu Ren". At this time, if we analyze the meaning of "Shu Ren under the Rite", does it mean that Rite has changed from the past rights and obligations to nobles to the equality of rights and obligations to all? To understand what Confucian rites are, it is necessary to make it clear that Confucian rites are no longer specific provisions, but become the fundamental system of the country, that is to say, everything maintained by the Western Zhou Dynasty has become a national system, rising to the height of the national system and being recognized by the country. In fact, it is to further institutionalize, legalize and authorize the rituals of the Western Zhou Dynasty. 2. They supplemented Zhou Li's principle of "kissing" with "promoting talents", and on the premise of "kissing", they changed the traditional "cronyism" into "respecting talents and enabling people", thus denying the traditional system of "learning from foreigners". However, it should be noted that the principle of "kissing" in the Western Zhou Dynasty was not broken or abolished, but was supplemented. The purpose of adding "fostering talents" to the "kiss" in Zhou Li is to select outstanding talents to serve the feudal nobles and further consolidate their patriarchal hierarchy? 3. They regard courtesy as a cultural and institutionalized "five ethics" principle, that is, the code of conduct for dealing with the relationship between monarch and minister, father and son, brothers and friends, and define "intimacy" and "right and wrong" with courtesy. "Five ethics" is actually a moral category and should not be regulated by law. Confucian etiquette did give him legal significance and raised it to the height of the national system. Summary: In fact, the Confucian transformation of the Western Zhou Dynasty etiquette further improved the status of etiquette as the fundamental system of the state, and the core of the state system is "pro" and "respect". Using "giving talents" to supplement "kissing" further clarifies the grades of monarch, minister and son. Confucian rites are essentially the same as those in the Western Zhou Dynasty, but the difference is that Confucian rites are more institutionalized, comprehensive, theoretical and even mandatory than those in the Western Zhou Dynasty. (1) around the "five ethics", emphasizing the "rectification" in jurisprudence, we should study a problem: the relationship between ethics and law. Today, this problem seems to have been solved, and it is agreed that ethics and law belong to social behavior norms, but there are obvious differences between them. But in fact, in real life, the relationship between the two is not as clear as written in words. For example, in his native China, Mr Fei Xiaotong wrote a true story that happened in the countryside after the reform and opening-up: a married woman in the countryside was having an affair with a man in the village. When her husband found out, he was angry and broke the leg of the man who cheated on his wife. The villagers didn't feel anything wrong either. But the person who was beaten went to the county court to sue his attacker. The husband was convicted of intentional injury according to law. The villagers felt something was wrong at this time. First, women's infidelity is taboo and should be severely punished. Secondly, it is natural and understandable that a husband cheats on his woman. Third, the state should manage cheating, not punish beating people. Mr Fei Xiaotong is a famous sociologist in China. He studies from the perspective of sociology. However, his Native China has attracted the attention of legal circles, especially jurists, who have made legal thinking on the social problems. The story mentioned above is actually the influence of Confucianism on later generations. First of all, Confucianism integrates ethics with law. On the one hand, it endows the main ethical principles with the nature and effectiveness of law, on the other hand, it emphasizes that law serves to safeguard ethical principles and makes ethics override law. The ethical principles of Confucianism are mainly the principles of the relationship between monarch and minister, father and son, brothers, husband and wife and friends, namely, "benevolence, loyalty, kindness, filial piety, brotherly love, husband's righteousness and women's listening". This kind of "five virtues" which embodies the superiority and inferiority is the core of the ceremony and the fundamental measure of "self-cultivation, keeping the family in order, governing the country and leveling the world". Secondly, on the basis of "Five Virtues", it advocates strict adherence to the patriarchal hierarchy of "Jun Jun, minister, father and son" and the principle of "courtesy is the king and loyalty is the minister", requiring that legislation and actions must be "rational". Those who violate the rank and title should be severely punished. (Thinking about whether the status quo of "justified" exists? Specific performance. (2) In a patriarchal society based on family, which emphasizes "filial piety" and "loyalty" and small-scale peasant economy, what is the most basic social production unit and living unit? Go home. Home is a big family with children and grandchildren, which organizes all members of society. There are men, women, children, grandparents, sons and uncles at home. Home is a place to live and produce. There are officials when going out, and iron smelting and spinning at home. Home is the most direct link in interpersonal communication. There are all kinds of people from all walks of life in the family, so there is no need to communicate with others. A country is made up of families. The bond between family and country is ceremony. Courtesy adjusts the relations within the family, and propriety also adjusts the relations within the country. Li not only regards "home" as the foundation of "settling down and living", but also regards "home" as the foundation of "loyalty to the monarch". To sum up in one sentence, Mencius said, "The foundation of the world is in the country, and the foundation of the country is at home." Why do you say that? The reasons are as follows: First of all, courtesy requires people to be "filial" in the family, and filial piety is absolute obedience to paternal parents. The main manifestations are: children must be filial to their parents (filial piety is more important than respect for relatives), brothers and sisters must respect their brothers (with and without fathers), and young people must obey honor (). Secondly, the rule of propriety requires people to be "loyal" to the country, that is, loyal and obedient to the monarch, which is the extension and expansion of filial piety. Confucianism believes that "filial piety is loyalty", loyalty can be achieved through filial piety, and filial piety itself is equal to politics. Someone asked Confucius: Confucius answered. Why were there four archways of loyalty, filial piety, festival and righteousness in ancient times? That's because the ancients thought the four were interlinked. (3) Based on grades, emphasizing "don't be noble and humble" Confucianism emphasizes "correcting the name" and "loyalty" and "filial piety", which is nothing more than strictly distinguishing between upper and lower grades and high and low. Confucius said, "Rites and music originated from emperors." Mencius said, "There is a saying in the world, great virtue is small, and great virtue is small." Xun Kuang said, "There is a difference between heaven and earth, and the king of Ming Dynasty is under state ownership." "It is the common sense of the world to do less and be unfilial." Second, the theory of "ruling the country by virtue" must first understand what "virtue" means. Morality, in the Western Zhou Dynasty, is a comprehensive concept integrating morality, politics, belief and strategy, including both specific behavior requirements and basic principles. Confucianism inherited the "virtue" of the Western Zhou Dynasty, but also reformed it. Mainly manifested in:) highlighting the political significance of "virtue", promoting virtue to benefit the people, implementing benevolent government and other political rule methods. (2) The status of virtue is improved, and virtue is considered to be higher than monarchical power, state and law. Why do you say that? Confucianism regards morality as the standard of "monarch" and "tyrant", which is the cognitive thought of rule and justice. (A) the combination of virtue and punishment, supplemented by punishment, which is the basic relationship between virtue and punishment. Confucianism highly praised the Western Zhou Dynasty's "Ming De Cautious Punishment", but at the same time, through the dispute between the Spring and Autumn Period and the Warring States Period, Confucianism has realized the limitations of morality and should use punishment to assist its application. Mencius said: "Being good for politics is not enough, and being good for yourself is not enough." So are they equal? Confucianism still advocates "rule by virtue", praising rule by virtue as the North Star, which is the center of all stars, and punishment is just one of the stars around rule by virtue. Why does Confucianism have this idea? Because Confucianism believes that although administrative and criminal means can make people afraid to commit crimes, they cannot eliminate their inherent criminal motives; Only by virtue and courtesy can we consciously abide by the legal system and eliminate criminal motives. The so-called: "Tao is virtuous, qi is polite, and shame is qualified; Tao is governed by politics, and punishment is governed by punishment. The people are free and shameless. " (2) Pay attention to education, and moral punishment "education" refers to instilling patriarchal ethics and hierarchical concepts. What is the ethical basis of Confucianism's emphasis on "enlightenment"? Confucius and Mencius advocated "the theory of good nature", "at the beginning of life, nature is good, nature is similar, and learning is far away." Without education, there will be deviations. ? The moral difference between a gentleman and a villain is acquired. Through education, a villain can abandon evil and become a gentleman. Therefore, compared with punishment, (1) education can maintain the nature of human kindness, (2) education can prevent crimes, and (2) education can help criminals find their conscience after committing crimes. This achieved the goal of "eliminating punishment by virtue". This educational preventive thought of "eliminating punishment by virtue" is the creation and contribution of Confucianism. (Thinking: Today, the educational prevention thought of "punishing evil with virtue" is at work. (3) Show compassion for others and be careful to kill with punishment, and teach before punishment. "Show compassion for others and be careful to kill with punishment, teach before punishment" is actually an extension of "paying attention to education and eliminating punishment with morality". Confucianism advocates "emphasizing teaching with morality and punishing with morality", which requires "teaching before punishment", that is, teaching before punishment. If you are punished for lack of education, it is "political abuse", which is what they call "killing without teaching is abuse" The lenient punishment and cautious killing of Confucianism are mainly manifested in the lenient treatment of criminal acts according to the principle of propriety and righteousness. For example, Confucius advocated that "the father is the son and the son is the father." 3. What is the decisive role of the theory of "rule by man" in a country? In other words, what supports the survival of a more peaceful society? Some people say it is the moral influence of the rulers, while others say it is legal coercion. Since ancient times, this has been the focus of the debate between "rule by man" and "rule by law". Confucianism advocates "rule by man", and they explain it from different angles. Starting from the relationship between morality and politics, Confucius and Mencius believed that politics is the development of morality, so he attached importance to and emphasized the decisive role of rulers in governing the country, and believed that "if people exist, they must have political motives, and if people die, they must have political motives." Xun Kuang, on the other hand, analyzed from the perspective that both man and law are ruling tools, and thought that man played a role in determining the law. The so-called "law cannot be unique, and class cannot be unique." If you get it, you will survive; if you lose it, you will die. ? Analyze why Confucianism put forward another idea of "rule by man". In fact, "rule by man" is derived from "rule by courtesy" and "rule by virtue", whose main contents are "rule by courtesy" and "rule by virtue". Because the patriarchal clan hierarchy is the principle and characteristic of "rule by courtesy", the higher the hierarchy, the greater the privilege and power, and the greater the personal role of the ruler, so "rule by courtesy" will inevitably lead to "rule by man". At the same time, the more virtuous a ruler is, the more convincing he can be. "Rule by virtue" must be implemented by virtuous people, so "rule by virtue" will inevitably lead to "rule by man". (1) The sages decided that Confucius said that "rites and music are conquered by gentlemen", and only the Emperor can make rites and music and have legislative power. Therefore, the son of heaven sustains the destiny of the country. Confucius said, "A word can prosper a country, but a word can destroy it. When Lu Aigong asked about politics, Kong Qiu replied: "Military and political affairs are based on policies." . If people exist, it will be a political move; When a person dies, his political interest is gone. Therefore, the government is among the people. It means that the best systems and policies are those of Xihe and Wu Wang, which are recorded in laws and regulations. As long as there are scholars and such sages, their politics can be realized, otherwise, it can't be realized? Therefore, Confucianism advocates that the son of heaven should use virtue to maintain the survival of the country. Confucius said, "Why kill a son when he is in power? "? Children want good, and people want good. Mencius said, "If you are a righteous monarch, the country will be settled." To this end, Confucianism advocates selecting talents according to the principles of "concealing relatives" and "getting something for nothing", that is, not only appointing relatives, but also letting those who are not noble directly participate in state affairs. (2) "Do things right? Confucianism believes that the key to "rule by man" is that rulers should be able to "correct themselves" through legislation and influence the people with personal charm. Personal charm includes many aspects, the core of which is excellent quality and gentleman's words and deeds. Confucius believes that only by "cultivating oneself" can we "keep the family in order", "govern the country" and "level the world." No, it's okay. Not if you don't order "The ruler's own behavior is correct, and the people will act without orders; On the contrary, if your behavior is incorrect, even if you have orders, the people will not obey. (3) Law precedes the king, and Confucianism emphasizes the role of man in the relationship between law and man, and emphasizes the role of ancient sages between the real monarch and the ancient sages. Therefore, they are "ancestors of Yao and Shun, and they are civil and military", taking the ancient sages and sages as models. Mencius put forward that "a saint is a teacher of eternal life. "In fact, the admiration for the former king puts forward high standards and strict requirements for the realistic rulers; At the same time, we use the ancients to promote our own ideas. This method has also been used by later generations. Let's talk about Kang Youwei's "orphan care reform"?