What are the contents of the Heavy Code for Punishing the Country in the Early Ming Dynasty? thank you

Comment on the theory of ruling the country with heavy code

abstract

Since the decline of traditional society, "ruling the country with heavy code" has been favored by rulers in different periods of each dynasty. It seems to be a common and important political operation and legal tool to stabilize the political and economic situation and achieve long-term stability. However, in most historical periods, it is often difficult to fulfill the decision-making expectations of the rulers, and it has achieved results, and it will eventually become a historical relic. While recognizing the many negative effects of heavy code on traditional society, we should not assume that the severity of heavy code will only cause social unrest and hinder the pace of social progress. On the contrary, it is an important task for China people to reflect and forge ahead by stripping the system and examining the power structure, social and cultural atmosphere, legal culture and other factors that lead to the invalidation of the heavy code.

Starting from the traditional society, the rulers of all dynasties relied on the oriental local legal path of "severe punishment", and the phenomenon of "ruling the country with severe punishment" was also favored in different periods of each dynasty, which seemed to be a universal and important political operation and legal tool to stabilize the political and economic situation and achieve long-term stability. The "heavy code theory" bred by China's unique political and legal soil has different meanings in different historical periods, and its influence on society tends to be different. Stripping away the complicated appearances and refining the legal culture behind various heavy codes, it seems that the ideological trend of "heavy code theory" has not completely subsided with the modernization and upgrading of China's laws, but has become a hidden legal factor, providing a teleological way of thinking and profoundly affecting the rule of law process of China people today.

Therefore, in today's dialectical reference and experience summary of China's traditional social legal thought, it is a social project that China people can't ignore and surpass to take into account the absorption of foreign excellent legal systems, sum up the effect of ruling the world with heavy code, make it surface more clearly, and then recognize the advantages and disadvantages, extract reasonable factors from it, and correct the rule of law.

First, deconstruct the theory of ruling the country with heavy code.

(A) Overview of the origin of the heavy code theory

Throughout the history of China, we can find that the theory of "ruling the country with heavy code" has a rich humanistic background. At the beginning of ancient times, it originated from China's etiquette and criminal law. In the era when punishment began with soldiers, punishment and law were the same, which actually reflected the evolutionary history of the gradual development and growth of ancient human social communities. After the country came into being, in order to establish rule and maintain order, the rulers adopted the so-called "one soldier is a heavy punishment, followed by an axe and a saw is a medium punishment" [1]: the purpose of Xing is to establish authority, so that "the people dare not commit crimes" [2] and "rape is forbidden" [3] to ensure order. From the perspective of human evolution, law originated from punishment, and we can also see many characteristics in the history of human development and even the history of legal development.

However, the evolution of China law has its own track. Heavy punishment is not everything. In view of the historical cases in which excessive punishment backfired, the people rebelled and lost their sovereignty, the rulers stumbled to master the appropriateness of exercising power within the controllable range, and put forward policies such as "matching heaven with virtue", "supporting punishment with virtue", "respecting ceremony with one standard" and "integrating etiquette and law" characterized by light punishment and benevolent government, which eased class contradictions. However, the national policy of "obeying the law and saving the punishment" is not completely divorced from the framework set by the theory of heavy code. On the contrary, because the formation of the central country depends on the omnipotence of the centralized government from the beginning, this determines that the prosperous times should also be deformed and evolved under this framework-it can't and won't get rid of the behavior paradigm of "the punishment in the world is light and heavy, but uneven, and heavy" [4], and abide by "the punishment in the new country is light, the punishment in the country is medium, and the punishment in the country is heavy" [5]. However, in a short time, he is good at constructing the initial situation of "eliminating punishment with punishment and achieving things with punishment" for a specific object or for a specific purpose. In terms of stabilizing order, it has unquestionable efficiency and purpose, which can be used as a powerful guarantee for the implementation of other subsequent ruling behaviors ... these are the "operating benefits" of light and medium codes. Therefore, ruling the world with heavy code not only happens in "chaotic countries", but also has a broader scope of action and operation.

(2) Deconstructing the traditional theory of ruling the country with heavy code.

In the practical investigation of the theory of ruling the country by heavy code, stripping different implementation concepts or expressions of heavy code in previous dynasties and looking for its uniqueness are actually clarifying two concepts: the target group of heavy code and the concept of "heavy code" itself. First, the target group of heavy code. Scholars pointed out that the so-called law in ancient China, "on the one hand, is the criminal law, on the other hand, is the organization law of bureaucracy" [7], in short, it is an institutional system composed of administrative law enforcement rules and corresponding governance penalties in public power countries. It has always been difficult to get rid of the mode of "the law comes from the monarch" and "all laws are ruled together, with punishment as the mainstay", and it has grown into an independent and complete private law system under the condition of weakening centralization as in the West. There are many reasons for this situation, and naturally it is not the object of this paper, but it will certainly become an indispensable historical soil and theoretical cornerstone when examining the effectiveness of heavy code in governing the world.

The structure of China's legal system determines that the edge of the legal system is "regulating Shu Ren in punishment" [8]: public law is the main form, and the lower class people are bound under the ruler through law to achieve the purpose of governing the world. But this does not mean that China people have never been controlled by the colored legal norms of private law imposed by the rulers. There are "family laws" and civil habits since ancient times, and the economic and legal system of government-run and supervision controls the lifeline of the national economy. The emergence of a large number of civil laws cultivated during the period of economic development, while overthrowing some scholars' assertions that China is a "selfless law", does show that these legal measures can not fully demonstrate the characteristics of ancient Chinese laws compared with criminal public law.

Therefore, the conclusion of "the people of husband and law are the standard, so they are afraid of violence" [9] is that the objects that the rulers pay attention to in criminal control of the lower classes of society are naturally the broad masses of the people at the bottom, as well as the huge administrative bureaucracy they use and the unprotected aristocratic groups abandoned by the imperial power (which can be regarded as special objects in this paper), and the manipulation of the lower classes is often in the process of selecting officials and employing people. In other words, the high-level ruling group can achieve its ruling purpose by building a more efficient bureaucratic structure with officials under the rule of law. If it is assumed that the rulers simply require that severe punishment should achieve the effect of "prohibiting violence and stopping rape" when it is applied to the bottom groups, and because bureaucrats should also belong to the ruling group in essence, then different effects will be produced when applying the law, and the pursuit of the results of severe punishment will no longer be simple.

Second, the definition of duplicate code.

At the end of the traditional society, the rulers summed up the significance of feudal statutes as: "set up a national criminal ban, so eliminate rape and violence, punish greed and evil, get rid of customs, and purge officials" [10]. Among them, "if rape is forbidden, it will be heavier", which can achieve the effect of "if it is heavy, it will be light, if it is light, it will not come, and if it is heavy, it will not come" [1 1]. The significance conveyed by severe punishment seems to only stay in severe punishment and severe punishment, which can be understood from the severity and irrelevance of punishment. In fact, to accurately define "heavy code", we should first construct it at the level of the whole legal system, taking into account its following characteristics:

1) Its system is rigorous, its application fields are deep and extensive, and it has been continuously revised, improved and developed through the ages. Taking the criminal law as an example, no matter in ancient times or from the pre-Qin and Warring States periods, the five punishments of slavery were established through the reform of "light punishment" in later generations, and then some severe punishments were revived and abused in the middle and late feudal society, and they re-entered the law, forming a macro system with strict system and "sparse but not leaking". Even many administrative and civil legal responsibilities will be punished. For example, in the Tang Dynasty, in order to understand the legal system and political and economic environment of each generation, future generations can also have a glimpse of the penalties and specific provisions.

2) Its written law paradigm is harsh, there are a lot of special "law" cells, and it has great flexibility and elasticity. The severity of the five punishments of slavery has gradually increased, and it has been updated to the feudal five punishments, which has largely eliminated many homomorphic revenge and corporal punishment phenomena in the wild era of mankind and replaced them with more civilized punishments, which is undoubtedly of historical progress significance. However, the charges of "the family of sinners", banishment, tattooing and cangue punishment were still retained. By the Ming and Qing Dynasties, the title even entered the law, showing the harsh characteristics of traditional heavy code. At the same time, the remnants of corporal punishment were abused and prevalent in a certain period of time to achieve the purpose of repression, cleansing and power struggle, but they often had no written legal basis and were classified as extrajudicial torture. However, because the law comes from the monarch, it can be regarded as a special "law" in a sense, but it lacks the stability and predictability that the conventional legal system should have, and is endowed with greater flexibility and arbitrariness to supplement the power of heavy code implementation. Its flexibility also lies in the fact that there are many cases of different punishments for the same crime, which constitutes a more important and specialized part of the severe punishment system: this part can be divided into two parts according to the different treatment of the punished subject: on the one hand, it is exempted from some or even all legal obligations, such as the application of redemption punishment; On the other hand, it may be heavier than the punishment prescribed by law, or it may be punished with extreme punishment prescribed by special "laws".

3) Its type is complex and has a strong monarchical purpose, which determines that it has different connotations in different historical periods, accompanied by a little idealism. According to the different ruling needs of formulating and operating heavy code, several modes summarized by scholars are distinguished: extreme heavy code doctrine, light code doctrine, relatively weak heavy code doctrine and other specialized heavy code doctrine [12]. Extremism is a typical criminal law in Qin Dynasty, which is famous for its colorful autumn tea in history. In the mid-Northern Song Dynasty, the theories of "emphasizing law over land" and "emphasizing thieves over law" were promulgated, which represented the criminal law characteristics of the Ming Dynasty compared with the legal system of Han and Tang Dynasties. Relative weakening is represented by the idea of "saving punishment by law", and punishment is positive, which often appears when the country has just been established or the social economy has suffered great damage and needs long-term training. As for the implementation of special emphasis on code, it should not be summarized in any of the above columns. Mostly because of the personal likes and dislikes of the rulers and the shift of attention. For example, the promulgation of "Da Gao" and "Heavy Code Governing Officials" in Ming Taizu period had a strong political cleansing purpose. At the same time, the rulers hope to realize the long-term stability of social order through the use of heavy codes, and there are many individual purposes in history. Punishing traitors and slaughtering powerful officials often permeates many idealistic feelings derived from morality, but most of them backfire, which will be detailed later.

Therefore, from the above, we can simply describe the outline of the heavy code of traditional society: that is, to serve the purpose of ruling, to build a strict, flexible and quite flexible legal system of the whole society according to the specific political and economic environment and idealized settings, with all social groups and institutional buildings under the rule as the applicable objects, criminal law as the main body and special institutional tools.

Utility investigation and rationality analysis of the theory of ruling the country with heavy code

(A) the effectiveness of the theory of heavy code.

The definition of the theory of heavy code given in this paper is based on the development and inheritance of the legal structure of the whole traditional society, taking a certain historical era as the consideration goal. Because the rulers' understanding of heavy codes is different from many classification methods given by scholars in the above articles, and their goals are different, it is necessary to make some sampling differences in the performance investigation of heavy code theory in later generations.

Starting from a relatively narrow category, enlightened absolutism has always been regarded as a classic strategy for rejuvenating the country in the atmosphere of rule of man inherited from the traditional society in China, and the application of heavy code naturally exists in the soil of this system as a relatively low-level tool. Therefore, in order to draw a reasonable and rational conclusion about the performance of the heavy code system, we must first distinguish which political and economic conditions are more suitable for the growth of enlightened autocracy. As a fait accompli, today's classification of heavy codes is compared to the corresponding frame of reference in the choice of social forms. Therefore, when considering the utility of this theory, it seems inappropriate to mention the typical extreme severe punishment doctrine in the above classification, such as the Qin Dynasty.

Secondly, the relative weakening of the doctrine of heavy code is based on the cultivation and life of the country, mostly to repair the fragile natural economy. Rulers sum up the history, generally considering the people's resistance and social unrest caused by heavy violence, and reflect moderately after the devastating blow to the rule, and can know that "the people are thieves, because they are burdened with complicated affairs and the officials are hungry and cold, so they have no time to take care of their shame" [13]. In this environment, heavy code, as a superstructure, runs counter to the fragile social resources. In this way, when the law is used to sympathize with punishment, the heavy penalty factor applicable to the general public is weakened. This kind of policy is mostly in the period when the feudal state power is in its infancy but maintains a strong dominant position, or when the amount of social resources that public power can allocate is still rising. The economic and political system itself still has strong vitality, and it is easy to release the development momentum closed by the unreasonable shackles before through legal reform. The implementation of this heavy code system, on the one hand, makes people's livelihood stable and is conducive to the development of social production; On the other hand, it is easy to lead to the loose and insufficient monitoring of bureaucratic groups in the object of code governance, which will breed and accelerate the decay of this group. It should also be pointed out that the system of stereotyped writing, official position, invitation, reduction, redemption and exemption prevailing in traditional society is not due to relative weakening. As mentioned above, they are a part of the special link of the same crime and different punishment in the heavy code system, which has a strong "centrifugal force" on the heavy code system, but they are always limited by safeguarding imperial power, but they are true.

In this way, a better sample to measure the performance of code-oriented governance is the emphasis on light and specialization of codeism.

There are different differences in the mode of heavy code in both vertical and horizontal directions: vertically, from the perspective of the inheritance of normative legal documents, it is pointed out that the difference in the application object and degree between the heavy code of later generations and the provisions of the previous generation is a display of historical differences, such as the improvement made by the Ming Dynasty relative to the law of the Tang Dynasty; Horizontally speaking, it is a differentiated regulation on the object and degree of using the legal system in the current period. In other words, it is the possibility of expanding the subject's obligations in the link of different punishments for the same crime, that is, the implementation of the "thief's heavy law" and "heavy land law" in the Song Dynasty.

Traditional society firmly believes that "kings should not be greedy for thieves." During the Northern Song Dynasty, because the country did not carry out large-scale land merger reform, foreign invasion was serious and centralization was strengthened, which objectively shaped an era of serious class opposition, so that the crisis began to appear earlier in the middle of the rule, and thieves were one of the manifestations. In this regard, from the 6th year of the Northern Song Dynasty, Renzong Jiayou experienced three generations: Yingzong, Zongshen and Zhezong, fighting evil with evil, and intensifying the crackdown on thieves and robbers, and so on. Judging from the historical materials handed down today, it seems that the governance effect expected by the rulers can never be effectively exerted. Not only that, but also caused more serious social chaos. In the tenth year of Xining (1077), in February, "thieves in JD.COM and Hebei couldn't help but go into the city to kill people during the day, rob towns and hold officials hostage" [14]; During the Yuanfeng period (1078- 1085), Li often knew that there were many thieves, and under his rule, "thieves were all eliminated" (1086-100) "thieves looted during the day.

The particularity of the mode of "special heavy code" lies in that it can neither show the so-called "cautious punishment" of the rulers, nor is it because of the harsh ruling environment in the Northern Song Dynasty that the ruling group was forced to implement harsh laws and purge the social order-the decision-makers did not encounter a "dilemma" in both subjective and objective aspects. Objectively speaking, it is often in a period of relatively stable rule, and even Vientiane is updated and thriving. Subjectively, decision-making is not a stress reaction driven by external factors, but the result of self-deliberation to a great extent. More accurately, it is based on one's own personality beliefs and self-examination of one's own interests. This model is often singled out as an example, which is Ming Taizu's decades-long high-pressure corruption system.

Ming Taizu, who had experienced the sufferings of the bottom of society, was deeply touched by the corruption and political corruption of officials at the end of Yuan Dynasty, so he severely punished feudal officials with heavy penalties. The most important thing is that it has completed the unprecedented transformation of the long-standing extrajudicial torture, that is, the special "law" factor, and embodied the harsh color of rulers in previous dynasties into a real statute law model, making the heavy code system in traditional society more complete, even though the actual effect of these statutes is extremely short. However, it should be noted that it failed to help Taizu achieve the Qingming political goal outlined in advance. Just give an example: In the eighteenth year of Hongwu, the official department examined thousands of chief secretaries and officials of yamen and prefectures who visited Beijing, and only 435 of them were qualified. In his later years, Mao also knew: "If you want to get rid of corrupt officials, why kill them and make dusk?" [17] In the early years of Yongle, Emperor Chengzu gave up the policy of establishing a civilized and benevolent government, but it was shelved because of its poor effect. A few years after the big official punishment was gradually abandoned, corrupt officials have spread all over the country, showing a strong rebound after breaking away from the shackles of heavy codes.

(B) Analysis of the rationality of the application of heavy code

As can be seen from the above, no matter what mode of ruling the world by heavy code, the traditional society has achieved good results, showing a strange posture of low overall efficiency or even no positive effect but long-term vitality. There are many rational explanations for this, but to take the one-way path of the legal model as the breakthrough point, we must grasp the legal culture, the development history of system construction and its objective operation evaluation as the breakthrough point.

First of all, the phased positive benefits of heavy code are attractive for maintaining rule, and rulers can regard it as a game behavior when changing the unfavorable situation of exercising rule and seeking optimization. China is classically systematic, standardized and orderly, showing some closed independent development structures [18], and its legislative and strategic journey is characterized by strong path dependence. At the same time, China's centralized governance model, which has been much stronger than the West since ancient times, can also concentrate enough resources to ensure the strictness and even harshness required in the initial stage of implementing a certain system from top to bottom. Therefore, in a short period of time, the implementation of heavy code can really "promote the good and avoid the evil, and turn the turbidity into the clear" as described in historical materials [19]. Although it is only a reaction that the social anomalies regulated by criminals temporarily stagnate or even cover up after the social related subjects feel self-danger. However, the stronger the initial strength of the heavy code, the wider and deeper the influence, and the longer the stagnation symptoms, although there is no lack of the possibility of a more violent rebound. However, this can't help but give the rulers room to imagine, and continue to expect the affected subjects who hate it to consciously change, so as to inherit the effect of attaching importance to the law, and finally eliminate the unstable factors and "punish with punishment" to achieve long-term stability. However, in the later period of traditional society, with the highly developed commodity economy, the society showed a diversified trend, and the social governance methods clashed on the basis of the simple production that the rulers wanted to maintain, highlighting the backward position that the general code revision and supplementary technology could not keep pace with the times. In order to get rid of this unfavorable situation, we must adopt a heavy code different from the general legal system, which can not but reflect the helplessness of the rulers in the late feudal society.

Secondly, the application of heavy code is recognized by the rulers, and it is necessary to add "Tobin tax" to keep the running power of the state machine forever. In the process of running this giant machine in traditional society for more than 2000 years, officials have always been an indispensable weapon for rulers to achieve ruling efficiency and control ordinary people. There is a special employment relationship between the bureaucratic group and the supreme ruler in essence: because in a highly centralized society, the exercise of power is actually based on the direct control of local power by the central power, but it is also over-concentrated. Therefore, the role of bureaucrats at all levels under the central government, namely employees and local lords, is a personalized tool [20]. Therefore, "the downfall of the country is also due to the evil of officials" [2 1] is the ancient people's understanding of the importance of officials to the country, so they adhere to the principle that "governing the country is greater than punishing greed" and "punishing greed is the first to rule the world" [22]. From time to time, the unreasonable factors in the state machine are eliminated by heavy law, and the administrative discipline is purged, that is, as economists say, in the process of macroeconomic operation, taxes with the same effect as fine sand are put in from time to time, which excessively expands class contradictions due to the corruption and slack of governance officials, promotes the improvement of administrative efficiency, and realizes the stability of social order and the development of production.

Thirdly, the application of heavy code reflects the pan-moralized "harmonious" behavior expectation under the condition of "the unity of etiquette and law" in traditional society. Since the Han Dynasty, the moralization of law has been gradually strengthened, and respecting the law has become a major feature of China's legal system. On the one hand, courtesy into the law provides theoretical support for the rulers to advocate "only the son of heaven makes the son of heaven, and the world makes the son of heaven make the order" and enhance the legitimacy of benevolent government and ruling position; On the other hand, making good use of the rich moral norms in the Book of Rites to cultivate developed family rules and regulations will help the society to form a pyramid structure of "monarch, monarch, minister, father, son and son" and also help to reduce the cost of maintaining rule. "Rites and music are the cream of the same level, and criminal politics is the medicine stone to save the disadvantages", but "ruling the country by virtue" and "making the criminal system harmonious" [23], the country can last for a long time. It should be said that policy makers and even citizens have, to a certain extent, adopted and presupposed the Confucian basic point of human nature, trying to transform the established unreasonable factors with the moral behavior paradigm. First, guide the people to do good with courtesy and reduce unnecessary ruling expenses; On the other hand, they hope to govern the country by virtue and uphold justice-rights and obligations are extremely asymmetrical. In social construction, the two groups have a yearning for the embryonic form of "harmony" based on different understandings. However, due to the limitations of traditional society, social contradictions cannot be resolved, and people are doomed to face the conflict between the ideal of great harmony and the harsh reality for a long time. As a result, rulers often "make up their minds" and make a slight amendment to the theory of human nature, trying to treat evil with evil, establish authority, and break down the obstacles caused by the poor operation of the legal system; People often hope that there is a spirit in heaven. When they express disappointment and indignation at the bureaucratic corrupt groups that have brought them great suffering, they have already deviated from the expectation of good human nature and revived the original concept of revenge. At the same time, they are clearly aware of the isolation and weakness of the scattered forces of the people, forced to daydream about the theory of good governance, and have the psychological preparation and requirements to realize social innovation and rebuild "harmony" by accepting the baptism from top to bottom.

As one of the symbols of traditional social legal culture, we can't ignore the fact that the law comes from the monarch and the power is higher than the law. The existence of heavy code, if social factors are excluded, we can often find that the trajectory of heavy code application is very consistent with the monarch's own emphasis on the external environment and description of his psychological state. It is the ruler who "speaks with the constitution of heaven" and is not bound by power. There is no suitable evaluation standard for the legitimacy of decision-making, while rationality can be gained or lost through bottom-up feedback when making decisions. However, he still can't get rid of the quagmire of the rulers' own thinking and choice of history, social status quo and royal interests, and even expresses their reflection on their past experiences or their resistance and rebellion. So much for the throwing of heavy codes.