The Influence of Ancient Chinese Legalists' Legal Thought on China's Legal System Construction, Especially the Modern Legal System Construction

The Basic Propositions of the Legalists and Their Influence

In Chinese history, the Legalists promoted the "rule of law" and opposed the "rule of etiquette," calling for the replacement of the "rule of law" with the "rule of law" that "does not differentiate between affinity and affinity, and does not differentiate between the noble and the lowly. The "rule of law" that "does not differentiate between close and distant, does not differentiate between noble and lowly, a break in the law". During the Spring and Autumn period and the Warring States period, people in the midst of radical social changes mostly regarded Confucius' doctrine as a pedantic argument. They believed that in the radical changes in society, vigorously advocating the long outdated "rule of law" is "waiting for the rabbit" of the fools. The Legalists were different, they advocated "force", the supreme power of the monarch, and the formulation of a strict and complete system with mandatory and cruel penalties with shocking effect was the treasure of the monarch to rule the country. The so-called "no two measures of authority, no two doors of government, and the rule of law" is a good strategy offered by the Legalists to the monarch to "enrich the country and strengthen the army". Therefore, the legalists advocate "not to do virtue but to do law", that can only "force to convince people", the law is "banning violence", "stopping chaos "The law is the most effective, or even the only effective, method of rule, and "forbidding violence and curbing disorder" cannot rely on virtue to sensitize, but can only use violence. In response to the Confucian patriarchal hierarchy of "kin", "father" and "son", they proposed that all people "hold themselves hostage", believing that the selfishness of human beings is the most important factor in the development of society. "They argued that the selfish nature of human beings could not be "transformed into hypocrisy", even in the relationship between parents and children. In this way, this has to force to control the force, with severe punishment to rule the country and the people, in order to establish "six relatives to protect each other, and no bandits" of the social order.

The "rule of law" of the Chinese Legalists and the "rule of law" of the West are essentially two completely different systems, not to be confused with the rule of law in the West, the basic theory of the rule of law is the gift of human rights, and the rule of law of the Legalists, the basic point is to target the Western Zhou Dynasty, the rule of law, the rule of law, the rule of law, and the rule of law of the West, the rule of law of the Western Zhou Dynasty. The Western rule of law is linked to democracy, based on democracy, and the rule of law to defend democracy; while the rule of law of the legal system is based on the centralization of the monarch's authoritarian dictatorship, the authority of the law is completely in the hands of the monarch, the monarch's authoritarian rule of the tools and means; Western rule of law to the rights as the core, it is used to safeguard the rights of the citizens, while the rule of law of the legal system is based on the core of the punishment, the penalties are developed, and the private rights are insufficient. developed and private rights are insufficient.

Under the rule of law, in addition to power, morality, conscience, right and wrong, justice and so on, all to the law as a standard, words and deeds of the whole of the law of the rewards, against the law of the penalty. The monarch was invincible in the world with his hands on the two handles of punishment and reward. This simple and easy to implement doctrine, at that time, not only by the ruler's appreciation, but also easy to accept the common people, years of war, turmoil, so that people are eager to appear a strong regime to unify the world and stabilize society. Thus, the "rule of law" as the theoretical guidance, unified, strong authoritarian imperial dynasty came into being.

The contribution of the Legalist theory of "rule of law" to the development and progress of society is beyond doubt. The main achievement of the Legalists was that they strengthened the concept of law in Chinese political thought and preached the equality of the nobles and the commoners under the law. For example, the idea of "the law does not favor the nobles", "the punishment does not avoid the ministers, and the reward does not leave out the commoners" and so on have certain positive significance; moreover, the rule of law idea of the Legalists, the attitude of changing the law of the world is different, which is helpful to promote the progress of the society. In addition, the Legalist idea of the rule of law, the adoption of "the world is different and things are different" attitude to change the law, which is to promote social progress also has a certain role. However, the rule of law among the Legalists is not the rule of law in the modern sense. Although they emphasized the use of law to control and weaken the power of the nobles, their fundamental aim was to concentrate power in the hands of the monarch. Above the law is still the power of the monarch, the emperor, the so-called "export is the law, the pen is the law", the king can transcend the law, overriding the law, the essence of such a law is more power than the law of the king's law, is the implementation of the tool of authoritarian rule, rather than the rights of the people's protection, so it can not talk about the real modern sense of the rule of law. It is for this reason that the first written law was inscribed in China in 535 B.C., but the true rule of law has never emerged. The Legalist theory of the "rule of law" also had a fatal weakness, namely, that it was too hasty in its administration and too harsh in its enslavement of the people. The authoritarian system was embodied in the crippling theory of "rule of law" to the fullest extent. After the unification of the Qin dynasty, the whole world was put in the net of law, so that "the treacherous and the evil were born together, ochre clothes blocked the road, and prisons became markets". While the ruler still reveled in the fruits of "all legal forms" and "exclusive penalties", the common people suffered from the "rule of law" and were y disappointed with the Qin regime, which had been unified for 16 years. The Qin Dynasty, which had been unified for 16 years, was soon overthrown. After the fall of the Qin Dynasty, the reputation of the Legalists was not good, and the status of the "rule of law" fell into disrepute, and people talked about the "law" and regarded the law as an ominous thing. Han people in the Qin system at the same time, the Qin "rule of law" sharply criticized. In the "rule of law" of the death of the country's introspection, people noticed the Confucian "rule of etiquette" idea of the advantages. "While emphasizing the authority of the monarch, it also emphasized the self-discipline of the monarch; while emphasizing the rule of the people, it also emphasized the protection of the people. More importantly, the idea of "rule of etiquette" can make up for some of the defects of authoritarianism, ease the sharp social conflicts caused by the "rule of law", avoid abusive punishments, and enable the "law" to be "neutral" in its implementation. It also avoided indiscriminate punishment and penalization, and enabled the implementation of the "law" in a "neutral" manner. Confucianism was thus revived, and the "rule of etiquette" became the foundation of the state for rulers since the Han Dynasty.

From then on, whether to implement the "rule of etiquette" or the "rule of law" became the watershed of ancient China's saints and kings, incorruptible officials and corrupt officials. In addition to the Qin Dynasty, no other dynasty in Chinese history dared to openly boast "rule of law", the fate of the rule of law in China also seems to be unusually difficult and difficult.

The merits and shortcomings of the rule of law

There have been legalists in Chinese history, so why can't legalism lead to the rule of law? What are the merits of the rule of law thinking of the Legalists? What are the defects that can be reviewed?

During the Spring and Autumn period and the Warring States period, people in the midst of radical social changes mostly regarded the teachings of Confucius as pedantic. They thought that in the midst of the radical changes in society, it was foolish to advocate the long outdated "rule of etiquette" and "wait for the rabbit to come out of the hat". Therefore, the Legalists put forward the "rule of law" "rule of law", against the "rule of etiquette", and demanded to replace it with the "rule of law" of "no differentiation of affinity, no differentiation of nobility and inferiority, a break in the law "The rule of law". They advocate is "force", is the monarch's supreme power, the formulation of strict and complete and has the mandatory system and cruel and have the shocking force of the penalty is the monarch of the magic weapon of the state. The rule of law is a good strategy for the monarch to "enrich the country and strengthen the army", and the Legalists advocate "not to use the power of the ruler, but to use the rule of law". Therefore, the legalists advocate "not to do virtue but to do law", that can only "force to convince people", the state and the law is "banning violence", "stopping chaos The state and the law are tools for "prohibiting violence" and "stopping chaos", and they believe that the law is the most effective, or even the only effective, method of rule, and they belittle the role of morality and indoctrination, believing that if they want to "prohibit violence and stop chaos", they can not rely on moral virtues for indoctrination and can only use violence. In response to the Confucian patriarchal hierarchical system of "kin", "father" and "son", he proposed that everyone should "hold himself hostage", believing that human selfishness is the only way to rule. It is suggested that everyone is "holding themselves hostage" and that it is impossible to "transform nature into hypocrisy" because of the selfish nature of human beings, even in the relationship between parents and children. In this way, this has to force to control the force, with severe punishment to rule the country and the people, in order to establish "six relatives to protect each other, and no bandits" of social order.

The Legalist theory of the "rule of law" simplifies all complex issues. Under the rule of the "rule of law", in addition to power, morality, conscience, right and wrong, justice and so on, all to the law as a criterion, words and deeds in full of the law of the reward, and against the law of the penalty. The monarch was invincible in the world with his hands on the two handles of punishment and reward. This simple and easy to implement doctrine, at that time, not only by the ruler's appreciation, but also easy to accept the common people, years of war, turmoil, so that people are eager to appear a strong regime to unify the world and stabilize society. As a result, a strong, unified, and authoritarian imperial dynasty, guided by the theory of the rule of law, was born.

Looking at it from a dual perspective, there is no doubt that the Legalists' theory of the rule of law contributed to the development and progress of society. The main achievement of the Legalists was that they strengthened the concept of law in Chinese political thought and preached the equality of the nobles and the commoners under the law. For example, the idea of "the law does not favor the nobles", "the punishment does not avoid the ministers, and the reward does not leave out the commoners" and so on have certain positive significance; moreover, the rule of law idea of the Legalists, the attitude of changing the law of the world is different, which is helpful to promote the progress of the society. In addition, the Legalist idea of the rule of law, the adoption of "the world is different and things are different" attitude to change the law, which is to promote social progress also has a certain role. However, the rule of law among the Legalists is not the rule of law in the modern sense. Although they emphasized the use of law to control and weaken the power of the nobles, their fundamental aim was to concentrate power in the hands of the monarch. Above the law is still the power of the monarch, the emperor, the so-called "export is the law, the pen is the law", the king can transcend the law, overriding the law, the essence of such a law is more power than the law of the king's law, is the implementation of the tool of authoritarian rule, rather than the rights of the people's protection, so it can not talk about the real modern sense of the rule of law. It is for this reason that the first written law was inscribed in China in 535 B.C., but the true rule of law has never emerged. The Legalist theory of the "rule of law" also had a fatal weakness, namely, that it was too hasty in its administration and too harsh in its enslavement of the people. The authoritarian system was embodied in the crippling theory of "rule of law" to the fullest extent. After the unification of the Qin dynasty, the whole world was put in the net of law, so that "the treacherous and the evil were born together, ochre clothes blocked the road, and prisons became markets". While the ruler still reveled in the fruits of "all legal forms" and "exclusive penalties", the common people suffered from the "rule of law" and were y disappointed with the Qin regime, which had been unified for 16 years. The Qin Dynasty, which had been unified for 16 years, was soon overthrown. After the fall of the Qin Dynasty, the reputation of the Legalists was not good, and the status of the "rule of law" fell into disrepute, and people talked about the "law" and regarded the law as an ominous thing. Han people in the Qin system at the same time, the Qin "rule of law" sharply criticized. In the "rule of law" of the death of the country's introspection, people noticed the Confucian "rule of etiquette" idea of the advantages. "While emphasizing the authority of the monarch, it also emphasized the self-discipline of the monarch; while emphasizing the rule of the people, it also emphasized the protection of the people. More importantly, the idea of "rule of etiquette" can make up for some of the defects of authoritarianism, ease the sharp social conflicts caused by the "rule of law", avoid abusive punishments, and enable the "law" to be "neutral" in its implementation. It also avoided indiscriminate punishment and penalization, and enabled the implementation of the "law" in a "neutral" manner. Confucianism was thus revived, and the "rule of etiquette" became the basis of statehood for rulers from the Han Dynasty onwards.

Whether to implement the "rule of etiquette" or the "rule of law" became the watershed of ancient China's saints and kings, honest and corrupt officials. In addition to the Qin Dynasty, China's history, there is no longer any dynasty dares to openly boast "the rule of law", the rule of law in China's fate also seems to be unusually difficult and difficult.