Revenge in Chinese and Western Legal Traditions

Etiquette and law are two major themes of China's ancient legal system, and I want to make a shallow analysis here.

"courtesy, line, so things are blessed." This is a book about the ceremony in Shuo Wen Jie Zi.

Name explanation. The origin of ceremony is related to religion, sacrifice and patriarchal clan system, which embodies the patriarchal clan system in society.

The identity class and ancient China, as an identity society, also contributed to the proliferation of rites, and the two are mutual.

For the stent. But the scope of the ceremony is difficult to define, it is all-encompassing, ubiquitous, and can be a kind of

The basic belief in life can also be the fundamental program of governing the country and safeguarding the country; It's for someone else.

The ultimate basis of moral judgment and legal judgment is the basic essence of social ownership.

God; On the one hand, it makes detailed regulations on human behavior, on the other hand, it makes regulations on society.

All aspects of theoretical abstraction. These are all manifestations of the inclusiveness of the ceremony.

When it comes to "Fa", as usual, we should quote another famous explanation in Shuowen. "law"

The old saying is "Su", "Su, punishment is as flat as water; Hey, so I can't touch it directly, I'll start there.

. There have been many explanations for this sentence: first, it is as flat as water, fair and just.

The meaning of righteousness; It means to let guilty people go with the flow, which is a severe punishment. But not

Either way, it is only a simple etymological meaning and has no political significance.

Quality is quite different from the law in the western sense. It contains the historical progress of different nationalities.

The difference between process and value orientation is the difference between Chinese and western cultures. So understand it correctly.

Law, even the relationship between etiquette and law, must be placed in the ancient soil of China.

From the perspective of China tradition.

First, let's go back to the primitive society. The ancestors of the Chinese nation began from ancient times.

They lived in the Yellow River and the Yangtze River valley from the beginning, and were connected by blood for production and life.

Live, form a clan commune. They have been solidified on one piece of land for generations, moved to another place, and are connected by blood.

The relationship is getting stronger and stronger, and it is gradually branded with class. This process is also the form of a country.

After entering this process, the development of state organizations is nothing more than the blood relationship between rulers and nobles.

More and more institutionalized and legalized inferiority complex. But also within clans, tribes and tribal alliances

In the process of transition to the country, the authority of its leaders is increasingly strengthened. When it comes to primitive society

Leaders naturally think of Yao, Shun and Yu, who are selfless in most people's minds.

The embodiment of venerable. However, according to historical records, they are not as good as a "democratic country"

Now, the emperor's authority is accelerating its expansion. In ancient China, the Datong world gradually moved towards absolute monarchy.

In this transformation, the rituals produced in the process of clan sacrifice have also changed accordingly. The earliest meaning of ceremony

This is a ritual of sacrifice. With the polarization between the rich and the poor of clan members, the nobles monopolized the sacrifice.

The right of a priest is to control political rights in the bud. In the primitive state, the ceremony is gradually

It evolved from clan customs and has the nature and function of law. Etiquette is one of them,

We were inseparable. The above is a simple description of the origin of etiquette.

Then, I want to talk about the ancient wars in China. Everything about ancient times

There are a lot of descriptions about wars in Historical Records, describing the intensity and frequency of wars.

Enough to impress. * * * Workers vs. Zhuan Xu, Huangdi vs. Yan Di, and Chiyou.

War, although these come from ancient myths and legends, is not a false fabrication after all.

As for the records of the later crusade against Sanmiao and all kinds of "fighting for summer", it can be explained in ancient times.

There are many wars. In a sense, war is important in the process of China's national formation.

Sex. In the war, the tradition of state power and patriarchy was strengthened, and this group of countries

The weaving form is unique to China, which is quite different from that of Greece or Rome. in this

On the one hand, strictly speaking, state power does not mean that "public power is above society".

, but the naked clan name between conquest and rule. In short, it seems primitive to us.

The state is not so much a "public power" to society as a clan name.

Legal effect. This kind of legal power is punishment in three generations. It boils down to one sentence: "Punishment begins with soldiers".

As we all know, China has only one law for thousands of years, and that is the Criminal Law, which constitutes one law.

An all-inclusive network, in which there is no civil and criminal, private and public life, only

The size of the matter, the punishment is light. So the discussion about punishment is largely about ancient China.

Discussion on the law. There are many records about three generations of criminal administration in ancient literature. Zuo Zhuan said: "

If there is chaos in summer, you will be punished. "Explain the time and reason for punishment." Expert knife saw, outside.

Use armour soldiers ",this is the origin of the concept of punishment and law.

The way of state and law is based on war, and war determines the social function of law.

The fundamental difference between Chinese and western methods is also based on this. China did not form a western constitutional text.

Ming, because China has no political soil on which the Constitution depends. Ministry of State and Tribal Affairs

The transition knowledge between falling and falling is constantly smoothly transformed, and the two are integrated and infiltrated to form a kind of "up"

Under naked rule, the law is only a tool of repression, which is mainly manifested as follows.

Punishment.

After describing the important phenomenon of war, I want to talk about the relationship between ceremony and law. exist

The relationship between etiquette and law has changed in different historical periods. In Xia, Shang and Zhou dynasties, ceremony was the main thing.

Share the same punishment. Especially in the Western Zhou Dynasty, ceremony and punishment were two basic aspects of law. Etiquette master

If we implement the principles of "pro" and "respect" and confirm and maintain feudal ethics and hierarchical relations,

Institutionalize it to stabilize the inheritance of rights and the established order of property distribution; And stipulate that the state,

Other aspects of society, family and system. Moreover, the ceremony was mainly carried out within the nobility, so it was passed.

Over-education and infection play a preventive role in "before the ban" As for punishment, then

It is to punish "already" crimes, and it is a sanction afterwards. It can be said that etiquette mainly belongs to the moral category.

Serious violation of etiquette constitutes a crime, and punishment must be replaced by punishment, that is, "giving gifts will be punished." Therefore, punishment

It is a necessary supplement to the ceremony, backed by the coercive force of punishment, which is only for being more practical and effective.

The maintenance of ceremony, the formulation and execution of punishment must implement the principle of ceremony. The so-called "no ceremony."

People should not be punished as doctors "is an important principle of the legal system since the Western Zhou Dynasty. According to modern logic, politeness

Unity with the law is the real law.

In the tumultuous autumn of the Spring and Autumn Period and the Warring States Period, vassal States could only gain hegemony by courtesy.

The influences like spring breeze and summer rain are futile. Therefore, it meets the requirements of countries for quick success and instant benefit.

The concept of home came into being. Legalists who advocate "rule of law" have gradually replaced those who advocate "rule by courtesy"

Confucianism. Etiquette and morality declined, while laws and penalties rose and became the official ideology. Danfa

Family thought has its own insurmountable contradictions: on the one hand, it advocates that there is no hierarchy of punishment, on the other hand,

On the other hand, it emphasizes the autocratic power of the monarch, which are completely opposite sides. So the legalist thought began.

In the end, it is inevitable to fall into self-contradiction, which contributes to the short life afterwards.

In the Qin dynasty, this contradiction became more and more obvious. Since the Legalists annexed society through the state,

The society has an instinctive rejection of the country, only considering the government and ignoring the society.

On a huge level, when society is pushed to the extreme, it will rise up against the country and lead to the "soil" of the country.

Collapse. "The emergence of Qin Ershi's death is a manifestation of landslides. But Qin Shihuang was interested in Confucianism.

The cruel suppression of Confucianism, although not enough to make Confucianism disappear, has caused Confucianism.

The changes at some level laid the foundation for the later confluence of etiquette and law. So the courtesy of this time and

The relationship between law is mainly manifested in the centralization of legalists and the marginalization of Confucianism.

The great change in the relationship between etiquette and law lies in the Han Dynasty. The rulers in the early Han dynasty learned the lesson of Qin's death.

We should relax the oppression on society, and consolidate the New Deal after years of war and depression of people's livelihood.

Yes, we must "let the people have a rest". Therefore, the rulers adopted Huang Lao's thought and praised "inaction"

And cure ",that" things are more annoying and the world is more chaotic; Law is greater than son, rape is greater than blazing ","Tao is great. "

Doing nothing. "This idea is embodied in the guiding ideology of legislation, which is' lightness' and' contract law'

Save the punishment. "After 70 years of social, political and economic recovery and development, the national strength has been greatly improved.

The feudal autocratic and centralized landlord class regime was consolidated. However, in the early Han dynasty, all the enfeoffment systems

The vassal power is getting stronger and stronger, and the contradiction with the central government is sharp. In this case, the most

High-level ruling groups demand further centralization. At this time, Dong Zhongshu proposed "to oust a hundred schools of thought and respect Confucianism alone,

The unified thought of "respecting Confucianism alone" When he explained the relationship between morality and punishment, he thought that "the punisher,

Tokunosuke; Yoon, Sukeyoshi. "The relationship between virtue and punishment is like yin and yang. And said, "St.

People love to be strict, and Derby is punished. "That is," morality is the main punishment. "This set of ideas.

First, moral education, then supplemented by punishment, combined with morality and punishment.

They all meet the needs of rulers, so they were adopted by Emperor Wu of the Han Dynasty and later generations. Here, an ancient ceremony in China.

The relationship between law and law was finally established, and the etiquette and law were unified. Although later generations have different aspects of etiquette.

Key points, but the general trend of the confluence of etiquette and law in ancient China has not changed.

After expounding the ceremony, law and their relationship, some people may ask questions: the punishment in ancient China.

Punishment is characterized by cruelty and variety. However, what is surprising is not its cruelty and barbarism.

However, this cruelty and barbarism actually exists with 4,000 years of civilization and ancient and developed morality.

Philosophy goes hand in hand in the end, and how do these seemingly contradictory aspects of etiquette and law grow together?

What about the deposit? I think this involves a more important topic-the legalization and legalization of morality.

Moralization of law.

As mentioned above, Dong Zhongshu contributed to the confluence of etiquette and law, and its significance was not only in the Han Dynasty.

Once. It opened the focus of ethical reconstruction in ancient Chinese legal history in a special way.

In an important period, Confucianism once again reshaped the law with its value and systematically completed the system of Confucian ethics.

Degree and legalization, the pre-Qin and three generations of legal heritage to form a complete picture, the most

Finally, the complete system of ancient Chinese law was completed. This process is the so-called "ritual into the law"

, the legalization of morality. It has far-reaching significance not only in law, but also in the field of morality.

On the one hand, the legalization of morality in Han Dynasty is manifested in the adoption of laws that conform to Confucian principles.

Now, on the other hand, it is the absolute imprisonment of Dong Zhongshu in the Spring and Autumn Period, that is, the absolute imprisonment of quoting classics in the judiciary.

Here, I want to focus on the Spring and Autumn Prison. Dong Zhongshu's explanation of the Spring and Autumn Period is "Spring and Autumn Period"

If you listen carefully, you should do what you want: evil people will not succeed, and those who do evil first are particularly guilty, and so are straight people.

Its theory is light. Thus, the gist of Chunqiu Prison Shu is: According to the facts of the case,

Investigate the motives of the perpetrators; Those people with evil motives will inevitably bear criminal responsibility even if they attempt to commit a crime; The first criminal followed.

Heavy punishment; Lighter punishment without evil thoughts. Of course, this absolute prison is to solve the process of applying the law.

But from a larger perspective, it is that he is also rebuilding the ancient law.

The ethical structure of. Through the prison cases in the Spring and Autumn Period, we can see that it is a general kiss, respect and so on.

In principle, it is the same as the Chinese law and complements each other, that is to say, Confucian classics and law can never be incompatible.

Therefore, we can say that the laws of the Han Dynasty even embodied the legalist thought in a complete sense.

Thought, but there are also many contents that basically conform to the Confucian creed. This shows that both Confucianism and France

The cultural background of these thoughts actually shows that they were in the early legal practice.

Achieve mastery through a comprehensive study

In fact, the legalization of morality did not appear in the Han Dynasty. Tracing back to the source, as early as summer.

The Shang and Zhou dynasties have taken shape. Of course, for such a complete and successful ancient law as China.

Mature legal system with a long history and rich cultural connotation, legalization of morality.

This must be an extremely complicated process.

Let's talk about another big topic-moralization of law. Law and morality are two different natures.

There are closely related social phenomena, and the "ritual punishment" in ancient China society has a double knot.

Results: On the one hand, moral admonition has the force of law; on the other hand, legal norms coexist.

Play a moral role. The above has been discussed from the aspect of moral consciousness, and now we should focus on it.

On the legal side. Please look at the following example:

Zhang is Zhu Si's wife. It's been eight years now. Originally, if the husband is sick, he should also.

You should be kind to him as always. But now her husband is painless, but Zhang feels that her husband is stupid and wants to carry it.

Abandon your husband. In the verdict, Zhang said that Zhang violated etiquette and sentenced him to "sixty sticks". The whole verdict was not quoted.

Articles, only in terms of courtesy and righteousness. The basis of this case is that Zhang violated etiquette and justice, but the law did not.

Appropriate rules may be provided, so the degree of sentencing depends on the intensity of moral anger.

Is determined by morality. But we can't say that the judge didn't act according to law. Because, in fact,

Law should be completely subordinate to morality, and when applying law, morality should be the goal, and law must

We must be flexible and treat it according to the specific situation. As can be seen from this case, in ancient China,

Understand the above truth, there has been a blend between law and morality, and law is not just general.

In this sense, it is based on morality. The value orientation of law is subject to society.

Cultural tradition, so the ancient laws of China must be the anti-Confucian culture of China for thousands of years.

Reflection, Confucian culture advocates moral etiquette, that is to say, the moralization of China law comes from

Law began as soon as it came into being, and its degree depends on the ruling thought of Confucian morality in society.

In terms of weight. China's traditional legal thought, "courtesy is the mainstay, punishment is the supplement", is its full embodiment.

After talking about the interactive relationship between morality and law, the ceremony, law and their relationship in ancient China were established.

This demonstration. But this is only superficial reasoning. In order to fully understand etiquette and law, it is necessary

Starting with the ancient codes and precedents of China. But the understanding of ancient etiquette has a deeper level.

The purpose of the world is to "learn from history and know the rise and fall." Although we call it dharma today, when

However, it has a new meaning different from that of the ancient word "Fa". But in the inertial thinking of many people, it is still

It retains the concept of severe punishment similar to that in ancient times, and it is linked with criminal law as soon as it sees the law. so I ... ...

Today's study of ancient legal history is by no means as useless as some people think, but has far-reaching influence.

Meaning of.