Pre-Qin Confucianism's Thought on the Rule of Punishment

Although Confucius highlighted the role of moral and ceremonial rule, he did not, as some people have decided, only talk about moral rule but not the rule of law, and he did not completely deny the function of punishment in the governance of the country. I have organized the relevant knowledge here, come to study and learn!

The pre-Qin Confucian idea of the rule of law

(a) Confucius' Qi to the penalty

Confucius said: "Dao Zhi Zhi political, Qi to the penalty, the people are free from shame; Dao Zhi Zhi moral, Qi to the rite, there is a shame and the grid." [75] Although Confucius valued the rule of virtue and propriety more in terms of the effectiveness of governance, he did, after all, recognize the fact that the rule of government and punishment could free the people from punishment.

1. Punishment must be neutral. Confucius emphasized that the name of the government must be correct, this is because "the name is not correct, then the words, the words are not, things do not work, things do not work, the rites and music do not rise, then the punishment is not in; punishment is not in, then the people do not know what to do with their hands and feet." [76] It is true that Confucius prioritized name and rites and music, and that punishment only served as an intermediary, but he finally constructed the concept of the right name and the right speech, the right thing to do, and the right thing to do. What is accomplished? Ritual and music? Penalties in the political order, and pointed out the proper punishment for the people's behavior of the regulatory role.

2. Hearing litigation is like a human being. Confucius said: "Hearing litigation, I am like a man. Must also make no lawsuits."[77] Since ancient times, lawbreaking must be litigation is an important means of resolving conflicts, and because of this, Confucius believes that he is as impartial as others in the trial of cases; however, social disputes can sometimes be mediated, and not necessarily resort to the law; and, the ultimate goal of the penalty is to be free of lawsuits, in order to make litigation does not occur; of course, the most desirable Of course, the most ideal state is that there is no dispute at all, and thus no litigation, which is exactly what Confucius expected. In ancient Chinese society, there were rumors that "litigation is always bad", "litigation should not be organized", "litigation is not desirable", "litigation is cheap", "litigants will be bad", "litigants will be bad", and "litigants will be bad". "Those who litigate are bound to die" and other non-litigious and litigation-free concepts were passed down. The era of Yao and Shun was praised as a litigation-free world, and Da Shun was regarded as an expert in quelling litigation and stopping disputes. In any case, "listening to lawsuits, I am like a man" shows that Confucius did not reject the criminal law.

3, leniency and ferocity. According to "Zuozhuan? Zhaogong twenty years", Confucius evaluated the Zi Zi grant politics, Uncle with wide, emphasized that the government should be wide and fierce, "the government is wide, the people are slow, slow is corrected by fierce; fierce is the people disabled, the disabled is given to the wide. Wide to help fierce, fierce to help wide, the government is to and." "Fierce" naturally includes severe punishment and crime prevention. Confucius's evaluation is appropriate, it shows that the important task of governance is to formulate a reasonable policy, and good policy must be compatible with the people's situation; policy is too generous will make the people slow and rude, but too fierce will make the people hurt, and therefore should be wide and fierce, there are tension and relaxation. Thus, Confucius included punishment as an important option for the political people.

4. A gentleman carries a punishment. Confucius said: "The gentleman is a virtuous man, the villain is an earthy one. The gentleman harbors punishment, the villain harbors favor." [78] In Confucius, the difference between a gentleman and a villain has multiple prescriptive aspects, one of which is "the gentleman carries punishment, the villain carries favor." One of the aspects of the difference between the gentleman and the villain is that "the gentleman is in awe of the criminal law, the rules and regulations, and does not transgress them, and attaches importance to the observance of the institutional norms of the society; while the villain is always thinking of some small favors, and covets small advantages. As we all know, Confucius has always respected the gentleman's personality, which shows that he fully affirmed the value of the criminal law. Confucius said of his disciple Nan Rong, "When the state has the way, it will not be abolished; when the state has no way, it will be exempted from punishment." : When the state has the way, Nan Rong can be an official; when the state has no way, he is also exempted from punishment, according to which Confucius married his niece to Nan Rong. [79] Here, although Confucius honored the Way and regarded having the Way and not having the Way as the fundamental criterion for the provenance of actions, he also regarded the exemption from punishment as an important reference for human character, thus showing his respect for the criminal law.

(2) Mengzi's "clearing up his politics and punishment"

Mengzi's idea of ruling the country was strongly moralistic, and he belittled the significance of punishment. He advocated the king's political requirements to reduce the penalty: "the implementation of benevolent government in the people, the province of punishment, thin tax convergence, deep plowing and hoeing" [80], against the "and caught in the crime, and then thus the penalty" [81] of the politics of recklessness. However, Mencius did not go to completely abandon the penalty.

First, in the elaboration of the political doctrine of virtue and ability, Mencius put forward the political responsibility of the "clear its politics and punishment" view: "The country is idle, and when it is clear its politics and punishment." [82] It is easy to see that he y recognized the importance of observing the criminal law for the rise and fall of the country.

Secondly, the reason why his theory of benevolent government advocates that it is appropriate for the benevolent to be in a high position is because "the lower can not be guarded", and it is difficult to ensure the survival of the country if "the small man commits a crime". Mencius pointed out that "when there is no Taoist premier at the top, and when there is no lawful guard at the bottom, when the court does not believe in the Tao, and when the workers do not believe in the degree, and when the gentleman commits the offense of righteousness, and the small man commits the offense of punishment, it is fortunate for the survival of the state." [83] If those at the top do not have the Dao to abide by, those at the bottom do not have the regulations to follow, the court does not believe in the Dao, the craftsmen do not believe in the yardstick, the gentleman in the high position commits a violation of righteousness, the people in the low position commit a violation of the criminal law, and so on and so forth, it would be really a fluke for the state to survive.

The third is to emphasize that "those who are good at war should be punished". Mencius pointed out painfully, the monarch, if not benevolent government, will cause "fighting to war, killing people in the wild; fighting to war, killing people in the city" of the evil consequences, and this is no different from the "rate of the land and eat human flesh", so it can be said that the crime can not be killed, can not be put to death, and the "good fighter to serve the punishment". "The good fighter serves the punishment": the person who is good at fighting should receive the heaviest punishment,[84] thus reflecting that even though Mencius respected the benevolent government, but does not deny the rule of law, but also reflects his sense of responsibility to care for the lives of the people.

(3) Xunzi's virtue and prudent punishment

Through the above combing, it can be seen that Confucius and Mencius attached more importance to virtue and benevolence in ruling the country, and opposed tyranny, war and hegemony, but did not negate the rule of punishment. However, Xunzi's philosophy of governance is both the same and different from that of Confucius and Mencius in terms of the relationship between morality and punishment. The core of Xunzi's philosophy of governance is to honor the wise and respect the wise and to love the people, and to emphasize the rule of virtue as well as the rule of law, which is what distinguishes him from Confucius and Mencius. He said that the "rites" is both a moral code and a social system, both with moral implications and non-moral significance, so he often referred to the rites and laws, the rites and penalties, not only emphasize the rites of governance also emphasize the rule of law according to the punishment of the state, the penalty as an indispensable and important means of governance, which is mainly manifested in the following five:

1. p> 1, virtue and prudent punishment. Xunzi clearly pointed out:

The rule of the scriptures, rituals and penalties, the gentleman to repair the people's peace. The state has been ruled by the four seas and the four seas are flat. [85]

Xunzi regarded rituals and punishments as the unchanging truths of governance, and believed that if the reigning ruler focused on rituals and punishments, the people would be at peace. The so-called "virtue", that is, is still virtue, respect for virtue, so that virtue advocate bright; the so-called "prudent punishment", that is, prudent use of punishment, not chaotic punishment of the innocent, killing innocent people, to achieve the criminal law moderate. As an important guiding ideology of the Western Zhou governance, "virtue and prudent punishment" originated from the "Shangshu? Letters Patent: "But King PiXianKaowen, he has been wise and prudent in punishing." and Shangshu? "There is no one who is not virtuous and prudent in punishment". Shangshu? DuoFang" recorded that the reason why Duke Zhou emphasized "virtue and prudence in punishment" was because "there is no one who does not understand virtue and prudence in punishment, and also uses persuasion; to prisoners wasting many sins, and also uses persuasion; to release the innocent, and also uses persuasion." Apparently, Xunzi inherited this concept of governance, pointing out that if a ruler is "wise in virtue and prudent in punishment," then the country will be well governed and the four seas will be peaceful. Although it has the ideological tendency of virtue and punishment,[86] it also implies the concept of governance of virtue and punishment.

2. The prohibition of punishment. On the one hand, Xunzi believes that rites and punishments each have their own different governing functions. He recognized that the ritual has a normative governance role to prevent people from doing evil, but also has the effect of preventing people into the penalty, the ritual failure will be a disaster and then the penalty multiply: "water line table deep, so that people do not fall into; rule the people table chaos, so that people do not lose, the rituals, the table is also. The first king to the rites and righteousness of the world table of chaos; now the abolition of the rites, is to abandon the table is also, so the people confused and trapped in the scourge, the reason why the punishment is also complicated." [87]; At the same time, he recognized the limited function of the rites, emphasizing that as Zhu Xiang, the stubborn and unruly people, brave and ruthless people, the perpetrators of crimes must be treated with punishment: "Stealing the Confucian scruples, no shame and addiction to food, can be said to be evil less than carry on; plus profligate and disobedient, dangerous and thieves and not brother, can be said to be not detailed less than carry on, although trapped in the penalty can be also. " [88]

On the other hand, Xunzi advocated the separation of rites and punishments. He advocated such a way of governance: "Listen to the great points of governance: to the good to the person to be treated as a gift, to the bad to the person to be treated as a punishment. The two are separate, then the good and the bad are not mixed, right and wrong are not chaotic. If the good and the unworthy are not mixed, then the good and the outstanding will arrive; if the right and the wrong are not messed up, then the country will be ruled." [89] Although both rites and penalties have normative and mandatory side, but the rites rely more on individual self-awareness, belonging to the soft constraints. Xunzi believes that the most good people should be controlled in accordance with the rites, the great evil people for punishment, only to the rites and penalties are applied separately, differentiated treatment, in order to make the wise and the unwise people do not mix with each other, right and wrong, so as to govern the country.

On the other hand, Xunzi emphasized from a different functional point of view, the state must be used to achieve the three means of rites and righteousness, law and punishment *** governance: "Now try to go to the art of the king, no rites and righteousness of the chemical, to go to the rule of law, no punishment, and leaning on the world to see the people of the people with each other also. If so, then the strong people harm the weak and take away, the crowd of people tyrannical widow and clamor, the world paradoxical and mutual death, not to wait for a few moments." [90] In Xunzi's view, if there is no etiquette and education, remove the law and governance, the lack of punishment and prohibition, will immediately cause "strong harm to the weak, the crowd tyrannical oligarchy, the world paradoxical chaos and the death of the" evil consequences.

3. Impunity. Xunzi absorbed the legal system attaches importance to criminal law, especially the idea of punishment of governance, will be "criminal" and "punishment" together, advocating reward and punishment [91]; about how to govern, he believes that those who are unforgivable elements of evil, without the need to educate should be immediately executed? "Virtuous and capable without waiting for the second to be raised, strike can not be abolished without waiting for the beard, the yuan evil without waiting for the teaching and execution, the mediocrity without waiting for the government and the transformation." [92] The "king's government" he advocated was:

Therefore, the people of treachery, treachery, treachery, treachery, treachery, treachery, and renegade and rebellious people are taught by their duties and treated with necessity, and are encouraged to be rewarded by celebrations and punished by penalties. If you have a job, you will be able to raise animals, and if you do not have a job, you will be able to abandon them. Five diseases, on the collection and raise, material and service, the official Shi and food and clothing, both covered without exception, only line against the time of death without amnesty. The man is called heavenly virtue, is the king's government also. [93]

Xunzi pointed out that the true kingly politics should be, for those who spread evil words, advocate evil doctrines, do evil things, have evil talents and arbitrary flight and exile, forced labor and education, with rewards to motivate, with penalties to punish, and those who use their talents and behavior to oppose the current system, should be resolutely put to death and never pardoned. From this, Xunzi advocates a clear distinction between reward and punishment in the art of governing the country, showing the spirit of the Legalist style of the evil forces will never forgive the spirit of commitment.

4. Proportionality of crime and punishment. Not only this, Xunzi also from the virtue and prudence of punishment, the prohibition of punishment and impunity layer by layer to promote, expound the "no merit, no reward, impunity" [94] of the universality of the rule of law, and explain the proportionality of crime and punishment of the idea of legitimacy. As to why it is necessary to implement the prohibition of punishment, impunity and proportionality of crime and punishment, although Xunzi also focuses on what some scholars have said from the perspective of retaliation or retribution argument [95]? For example, Xunzi said, "All titles and ranks, official positions, celebrations and rewards, and penalties are all retributions, and those who follow each other by category." [96] However, he mainly from the dimension of utilitarianism to give instructions; if the guilty must be punished, the punishment for the crime reflects the theory of retaliation that good is rewarded with good and evil with evil, then it is also out of social utilitarian considerations, the reason why the offender has to bear criminal responsibility for their own criminal behavior, but also because it causes the existing and possible serious social consequences.

Xunzi's theory of punishment is based both on the mental Confucian hypothesis of sexual evil? For him, because human nature is evil, will inevitably bring "risky and unorthodox, chaotic and ungovernable", so the ancient sages heavy penalties to prohibit; and based on the "desire for more and less" contradictory social Confucianism theory? The reason why people commit crimes, it is due to the indulgence of their own desires and the competition for relatively limited resources. Xunzi points out that if the punishment is not appropriate for the offense, it will result in disaster: "If one's virtue is not commensurate with one's position, if one's ability is not commensurate with one's position, if one's reward is not appropriate for one's merit, and if one's punishment is not appropriate for one's offense, the inauspiciousness is great." [97] Whether it is "to be called" or "to be", it means to be suitable, to be equivalent. Some of the modern interpretations of the "Idioms Dictionary" are that the punishment is too light, and some are that it is too heavy. In fact, both possibilities exist. Xunzi's meaning is simply to emphasize that if the punishment is too heavy or too light, so that the punishment is not commensurate with the crime committed, it will lead to inauspicious consequences.

The second is the ability to establish the majesty of the law. Xunzi said: "Therefore, the penalty when the crime is mighty, not the crime is insulting; Jennifer when the virtuous is noble, not the virtuous is cheap. Ancient criminal is not a crime, Jennifer is not more than virtue. Therefore, kill his father and minister his son, kill his brother and minister his brother. The penalty is not angry crime, the title reward is not over the moral, divided by each to its sincere pass." [98] Only the crime and punishment is proportionate, the crime and punishment is equivalent, against the strain, against the harm to the innocent, to maintain the justice and reasonableness of the punishment, in order to maintain the majesty of the law; on the contrary, if the conviction is not appropriate, then it is no less contemptuous of the law.

The third is to put an end to social chaos. Xunzi pointed out that: "the crime to heavy and punishment to light, the mediocre do not know the evil is carried out, the chaos is not. Where the punishment of human nature, banning violence and evil evil, the eye of the end of the sign also." [99] The fundamental purpose of the use of punishment is to prohibit violence and stop evil, if the crime is very serious and the punishment is very light, it will inevitably make the ordinary people do not know what is evil, thus causing great confusion. He also said: "A thing out of proportion, the end of chaos. Killer death, injury to the penalty, is the same as a hundred kings, did not know the origin of the person also. If the punishment is called a crime, it will rule; if it is not called a crime, it will cause chaos." [100] In Xunzi's view, death for those who kill and punishment for those who injure are long historical traditions (customary law), and only when the punishment is commensurate with the crime can the society become orderly, otherwise it will lead to disorder.

Fourthly, it can play the role of spiritual exhortation and sensitization. Xunzi emphasized that the penalty subjectively can play a threat to the uncriminalized, stop function: "is the great punishment is also added, the humiliation of which is greater! Will it be beneficial? If the big punishment is added, the body is not crazy confused and stupid, who will see it and not change it! Then the people will know that they can follow the law of the top, like the top of the will, and the peace and happiness." [101] Great punishment must bring great humiliation, the people will certainly be rationally weighed the pros and cons and abide by the law, and respect upward, which will help to maintain the autocratic rule. He also believes that: "carve out the county of the county noble reward in front of it, the county of the county of the great insults in the aftermath of the bright penalty, although the desire for no chemical, can be!" [102] There are noble titles and heavy rewards in front of them, and explicit punishment and great insults in the back, even if a person does not want to be transformed can not be.

5, the Lord of Virtue and Punishment. From the prohibition of punishment? The first is that the first is to be a good example of how to use the same technology as the second. Crime and punishment are commensurate, this layer of progressive penal claims seem to indicate that Xunzi's way of governing the country and the Legalist figured, perhaps it is precisely for this reason that Xunzi was once judged to be Li Si, Han Fei type of Legalist. However, it is important to realize that this is a conclusion drawn by simply limiting Xunzi's "theory of punishment." If we compare the functions of virtue and punishment in the governance of the state, Xunzi's "theory of virtue and punishment" is no different from that of Confucius and Mencius, and it is a continuation of Confucianism in its essence. In essence, Xunzi continued and expanded the Confucian thinking of ruling the country by virtue and punishment, while differentiating himself from the Legalist style of severe punishment and harsh laws.

Firstly, moral governance is superior to penal governance. According to Xunzi, three kinds of majesty are formed in the process of monarchs practicing the responsibility of ruling and strengthening the country due to the different strategies they adopt: the "majesty of morality" brought about by "ritual and righteousness are repaired, the division of righteousness is made clear, mistakes are made in the right time, and love of profit is made in the right form", and the "majesty of morality" brought about by "rites and music are not repaired". These are: "the power of morality", which is brought about by "the lack of cultivation of rites and music, the lack of clarity in the division of righteousness, the lack of timing in making mistakes, and the lack of form in the love of profit"; "the power of arrogance", which is brought about by "the absence of love for people, the absence of things that benefit people, and the daily practice of disorganization"; and "the power of the arrogant", which is brought about by "the absence of love for people, the absence of things that benefit people". The "power of arrogance" that comes from "not loving others, not doing what is beneficial to them, but making a mess of people's ways". [103] Compared with the power of violent investigation and the power of arrogance, Xunzi appreciates more the power of morality to cultivate propriety and righteousness, to make clear the difference between righteousness and propriety, and to love and benefit the people: "The power of morality becomes strong and secure, the power of violent investigation becomes weak and dangerous, and the power of arrogance becomes destructive and destructive." [104] In particular, Xunzi believes that the road line is higher than the complexity of the punishment, the moral system to determine the rise and fall of a country: "firm armor and sharp troops are not enough to win, high city and deep pool is not enough to be solid, strict orders are not enough for the complexity of the punishment is not enough for the power, by its road is line, not by its road is abolished." [105]

Second, the rituals of indoctrination are higher than the penalties of listening to the prison. Xunzi highly respected the role of the ruler's moral example, that the moral system is higher than the political system, clearly pointed out that, if "on the good manners and righteousness, but also the ability to make the virtuous, no greed for profit," will be "rewarded without the people to persuade the people, the punishment is not used without the people to serve the Secretary does not labor and things to rule the order of the government is not annoying and the common beauty! The government will be beautiful without any trouble"[106]. Xunzi strongly opposed to not teach but to punish, in defense of Confucius just for the government to kill the lesser Zhengmao, he quoted Confucius said: lesser Zhengmao both heart up to and risky, line open and firm, speech pseudo and dialectic, remember the ugly and Bo and Shun Fei and Ze's "five evils", is a villain, so can not not be put to death; and when Confucius for the Lu Sikou. "A father and son litigation, Confucius detained, March not different. His father asked to be stopped, and Confucius gave him up." When Jisun was displeased, and thought that filial piety should be adopted in the government of the country, and that the killing of an unfilial son would punish the unfilial, and that therefore the son should not be set free, Confucius defended himself by saying, "To hear the prison of his people without educating them is not innocent of killing." [107]? Do not go to the people of moral education and rely on litigation is tantamount to indiscriminate killing of innocents, for this reason, he accused of Man ordering to be punished, do not teach and blame, but certainly "righteous punishment and righteousness of killing," and applying Confucius, "do not teach and put to death, is called the abuse." [108] said: "do not teach and blame success, abuse." [109] At the same time, advocating the combination of teaching and punishment: "do not teach and punishment, the penalty is complicated and the evil does not win; teach and do not punish, the treacherous people are not punished." [110]

Third, the force of the internal saint to the external king, virtue to politics, the Taoist system to the political system, morality to the domination of punishment. Xunzi emphasized that the celebration of punishment must be honest: "system number government orders, want to be strict to Wei; celebration of punishment, want to be sure to the letter" [111]; can not affect the implementation of punishment by private door: "the criminal said Chen, keep its silver, the next shall not be used to light the private door" [112]; but also to true, trustworthy attitude to implement the penalty: "listen to the scriptures, Ming its please, Sen Wu Ming rigorous implementation of reward and punishment" [113] "words have section, audit in fact, the letter of the absurd to share the reward and punishment must be." [114]

Fourth, against the indiscriminate application of punishment. Although Xunzi refuted Mencius's theory of sexual evil and advocated the punishment of crime, like Mencius, he also despised the harshness and complexity of the punishment and advocated the reduction of the punishment. For this reason, he either positively emphasized the role of the penalty of qi province, that as long as for the good to remove the evil, then even if the penalty is rarely used can establish a good authority: "It is for the good to persuade, for the bad to discourage; the penalty of qi province and the authority of the flow, the order of the government to the bright, and the transformation of the ease of the God." [115]; or from the negative pointed out that excessive use of punishment will inevitably bring the people's evil behavior more and more difficult to prohibit the consequences: "chaotic its teachings, the complexity of its punishment, its people confused and fall into the country, and thus the system, it is to the penalty of the more complex and the evil does not win." [116] And pointed out that: "Rewards do not want to be unauthorized, the penalty does not want to be abusive. If the reward is unauthorized, it will benefit the little man, and if the punishment is abusive, it will harm the gentleman. If you are unfortunate enough to be in the wrong, it is better to be unauthorized than to be abused. Instead of harming the good, it is better to benefit the obscene." [117] These statements, from "the penalty is not too harsh" to "the penalty is too heavy, but the evil will not prevail" to "the penalty is not to be abusive", clearly show Xunzi's prudent attitude towards the penalty.

The key to learning politics

Three keys to learning politics:

First, read the book to penetrate - do not let go of the places you do not understand, and sometimes read a few more times may understand, or do not understand, only to ask the teacher;

Second, memorize to be firm - concepts, the basic principles must be memorized, but also to understand the concepts and principles, and to understand the concepts, and the concepts, and the concepts, and the concepts, and the concepts, and the concepts, and the principles, and the principles, and the principles, and the principles, and the principles.

After a long time, it will certainly form a certain logic, this time to find a teacher to evaluate the logic of the answer, correct the deviation, in accordance with the requirements of the college entrance examination.