What are the contents of feudal orthodox legal thought?

The contents and characteristics of feudal orthodox legal thought were formed in the long process of legal practice. From the point of view of the origin of thought, they are mostly refined from the thought materials of the pre-Qin era. Some of these thought materials were originally opposed to each other, but they gradually became one and parallel in the political and legal practice of feudal society. All of them represent the contents and characteristics that are not found in other legal systems but are unique to the Chinese legal system. Therefore, they do not only belong to the scope of feudal orthodox legal thought, but also belong to the entire Chinese legal system.

I. Legal Tradition Combining "Ritual Rule" and "Rule of Law"

Legal tradition is the value foundation that guides the practical activities of the law (legislation, judiciary and thinking). It determines the content, characteristics and development direction of legal practice. Generally speaking, the legal tradition of a nation is monistic, while the legal tradition of feudal China is dualistic, i.e., "rule of etiquette" and "rule of law".

Second, "moral government" and punishment combined with the policy of governance

In the Spring and Autumn Period and the Warring States Period, Confucianism advocates "governance by virtue", "to convince people by virtue", "moral government", "moral government", "moral government", "moral government", "moral government", "moral government", "moral government", "moral government", "moral government", "moral government", "moral government" and "moral government".

During the Spring and Autumn Period and the Warring States Period, Confucianism advocated "governing by virtue" and "convincing people by virtue", and Legalism advocated "governing by rule of law" and "removing punishment by punishment", "Convincing people by force" are diametrically opposed to those advocated by Legalism. It can be said that Confucianism is too idealized because it is difficult to operate; Legalism is too simplistic because it lacks practical experience. After the Qin and Han Dynasties, the feudal rulers learned the lessons of the Qin Dynasty tyrannical demise, and turned to focus on virtue. And the domination of a great country, but also the use of law and punishment can not be. Do not engage in moral government, the people will rise up in rebellion; do not engage in punishment, local separatist forces will be difficult. The adoption of Dong Zhongshu's proposal by Emperor Wu of Han Dynasty can be said to be a historic choice. The mysticism of Dong Zhongshu's theory of "Virtue and Punishment", on the one hand, puts Confucianism's "Virtue" in the first place, and on the other hand, implements a policy for Legalism's punishment to give it a resting place, and even gives it a divine character. In formulating state policies, all feudal dynasties boasted of "moral government" to win the hearts and minds of the people. Correctional measures were the first line of defense to prevent people from committing crimes. "Moral governance has the positive effect of making rulers self-restrained, and its purpose is also to achieve long-term peace and security. The political value of punishment was to suppress the people's resistance and to stop "rebellion" within the ruling class. When the imperial and tribal powers were declared to be gods, any act of rebellion against them became blasphemy. It was not only legal, but also reasonable to inflict severe punishment on these rebels. Especially after the Tang Dynasty, when the feudal code of "one to the rites" was declared to be in line with the "reason of heaven", the sanctions for all criminal behavior will be just, in the use of penalties do not have to be hidden wriggle.

In the relationship between "virtue and punishment" is worth mentioning the figure, in addition to Confucius, Dong Zhongshu, and Zhu Xi of the Southern Song Dynasty. His based on the "qi endowment" difference of "virtue, etiquette, government and punishment", "phase for the table", "phase for the end of the beginning and the end of" doctrine The doctrine of "Virtue, Rites, Government and Punishment", "Compatibility" and "Compatibility as the End and the Beginning" has reached the highest level of understanding of the relationship between "virtue and punishment". And "punishment is something that cannot be abolished in a prosperous world, but is also something that is not respected in a prosperous world", (Siku Quanshu General Catalogue - Political Books - The Genus of Decree) summarizes the general opinion of the feudal scholars and public opinion on punishment. The use of penalties in administration was undisguised, while public opinion did not praise penalties. As a result, on the one hand, the behavior of the rulers was more or less restrained, while on the other hand, it had the side effect of belittling the law. The study of law and jurisprudence became a left-hand path that was disdained by the sages, not to mention viewing the litigators as "scoundrels". This prejudice is not conducive to the normal development of legal thinking and jurisprudence.

Three, "people" and "law" combined with the theory of law

Law refers to the legal practice (legislation, justice) of the work of the program or way. For example, statutory law, case law, or a combination of both hybrid law. Ideas and views on the body of law is one of the important elements of legal thought and also the history of Chinese legal thought.