Comparing the differences between Chinese and western ancient legal systems and their influence on later generations

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An analysis of the legal differences between ancient China and ancient Greece

The legal concepts and methods of ancient Greece and the legislation of city-state democracy had a direct or indirect impact on the public law and justice of European countries, and spread to all parts of the world with the discovery of the new continent and the rise of the colonial era. After World War II, especially after the Cold War, advanced western laws have exerted a wider and deeper influence on all countries in the world.

As one of the cradles of human civilization, ancient China was the source of the spread of Confucian culture in East and Southeast Asia, and also formed the Chinese legal system. In my opinion, the so-called "Chinese legal system" is actually a Confucian law dominated by morality and supplemented by punishment. Before modern times, it had a far-reaching influence in China-centered Asia, reaching its peak in the heyday of the Tang Dynasty, but when old China began to become a semi-feudal and semi-colonial country, it went into decline.

It is also an ancient civilization, but it has a different fate. An empire was interrupted in history and passed down from generation to generation. First, its system and ideology affect the whole world, and second, it tries to reform the tradition ... I mainly want to analyze the reasons for this difference from three aspects:

I. Anthropological perspective

Second, the perspective of social form.

Third, the historical characteristics of cultural thought.

Of course, there are many other factors that affect the two legal cultures (such as religion …). Only one aspect of the reasons for the differences is described here, and each one is only a superficial analysis. Among them, the focus is mainly on the first point, which is the source of differences.

"Racial differences" caused by physical geography (unintentional racial discrimination)

Ancient China was an agricultural country developed by the Yellow River and the Yangtze River, which was called "river civilization", while ancient Greece, located on the Mediterranean coast, was a typical "marine civilization" country with developed industry and commerce. Or we can say that the ancient Greek civilization was bred in the cycle, while China was a civilization "growing" on the land.

Although on the surface, the influence of natural forces on human civilization is weakening, it is a factor that cannot be ignored when human ancestors created civilization. From inorganic substances to organic substances, from single-celled animals to vertebrates, from apes to humans, the starting point of each nation is the same. It's hard to say which region's apes are smarter or have higher IQ. Our differences are only physical differences.

The differences in climate, latitude, altitude, land and sea distribution, and the resulting differences in diet structure make the eastern and western nationalities have great differences in body shape. The ancient Han nationality (most of the residents of the Han nationality in northern China today intermarried with the Han nationality in the ancient northern minorities, or the descendants of the ethnic minorities after sinicization) is a typical yellow race. According to lombroso's "born criminal" theory, aggression should be relatively small (of course,

This seems to explain why our ancestors chose Confucian culture as a classic. Despite the complicated social and historical background, I believe that everything in the world is an unconscious natural selection from scratch. At least in its initial stage, it is a natural nature that tends to have advantages and disadvantages without the interference of will. Like the evolution of all living things, human beings will choose a civilization form that is most suitable for them (in the early stage of society lacking rich civilization foundation, "most suitable" should include physiological factors), such as "Confucianism". Admittedly, Confucianism also has its utilitarian and cruel side, but generally speaking, the best words to describe it are "moderation" and "warmth". In the 5,000-year history, the people of China have been pursuing a kind of stability for most of the time (even for reunification), longing for an authority to maintain stability, ensure order, organize production and judge right and wrong ... and are willing to obey this authority. Another example is Lao Tzu's thought of "never interacting with each other", which should also be a summary of the temperament of many people in China, and it is not rootless.

Comparatively speaking, there seems to be a kind of "going out" enthusiasm in the blood of western nations, which is also related to the geographical environment in Europe. The country's territory is not abundant, and the farming environment is generally lower than that in the east, which makes them have the conditions to go out, and sometimes they have to go out. In the process of "going out", western nations have produced corresponding world outlook values, represented by Athens in ancient Greece, where industry and commerce are developed and half of wealth is created by production and half by exchange. Exchange not only increased the wealth of the Athenians, but also laid the ideological wealth foundation of fairness, reciprocity and freedom of the Athenians.

Some people may think that China also has a long coastline, but from the perspective of the ancients, it is not the way forward. Coastal areas are not thousands of miles away from the fertile fields of the Central Plains, and even used to be places of expulsion and distribution. Naturally, there will be no administrative divisions such as developed coastal areas and special economic zones.

Although the field of "going out" of the ancient Greeks may not be half as big as that of China, it is important that the communication between city-states is a kind of "dialogue between countries". In ancient China, there was such a period of frequent diplomacy-the Spring and Autumn Period and the Warring States Period, and there was the only great liberation in the history of thought, but the only regret was that our contacts with Greece included "business" for the sake of "soldiers". Therefore, when China only emphasized "law" in ancient times, it focused on "punishment", and the situation could not be reversed from now on; Ancient Greece became the source of modern civil law.

The role of slavery

Many scholars believe: "Ancient Greece is the birthplace of many humanistic thoughts, recognized as the source of science, and the birthplace of western knowledge traditions. The law is extremely weak. There are almost no jurists in the strict sense, and there are no jurisprudence works specializing in law. Even in ancient Greek characters, it is difficult to find words corresponding to jurisprudence and law. " At the same time, there was no "jurist" in the strict sense in ancient China, and legal research was close to zero.

Both countries are countries without jurists. Why can ancient Greece become the source of modern legal thought?

One thing we should pay attention to-slavery in ancient Greece. Although the feudal society is higher than the slave society in form, who is not a slave to the land in a small-scale peasant economic society like China? There are no real slaves and no real free men in the whole society. If thinking is a kind of happiness, few people in China have experienced it.

The word "philosophy" contains the meanings of "wisdom" and "love" in ancient Greek.

Wisdom needs to be carried by thinking. The culture of ancient Greece is more about thinking about life, universe, nature and society. Even in astronomy, medicine, mathematics and other scientific research, the ancient Greeks fully reflected their preference for "thinking". In the cultural world of ancient Greece, "the pursuit of truth" is an unchanging theme, which is a scientific spirit for the sake of science.

Besides, what is "love"? The discussion of "rationality", "justice" and "goodness" made the ancient Greeks pay more attention to individual rights, the relationship between rights and obligations, and the relationship between the state and citizens.

The nation born from this philosophical thinking of love and wisdom will naturally advocate equality, and its political system will naturally regard democracy as an essence, and "law", as a distribution tool of rights and obligations, will also reflect completely different standards from the East.

The contribution of ancient Greece to law is an achievement beyond the concrete level and abstract meaning. Its existence value is like getting the Bible in the field of law. It is not a technical and practical instrumental achievement, but a reflection of the spirit of law.

When the peasants in China were still working as land slaves with their backs to the loess, and the landlord class in Dangquan racked their brains to maintain this "slave relationship", the free people in ancient Greece could experience the happiness of "thinking for the sake of thinking" every day.

Stability of cultural direction

"Stability" and "going out" are not mutually advantageous. They were all superstructures adapted to the social productive forces at that time, but the excessive pursuit of "constancy" did not become the mainstream of later generations, and the local people who pursued "moderation" were hit.

There is no difference between thinking and not thinking. If the sea is frozen and the world is closed, then "ignorance" is also a kind of happiness.

The formation of different cultures, including legal culture, is inevitable and accidental, and it is the result of the survival of the fittest in a certain region for a certain period of time. Before the original social structure was broken, it maintained its feasibility and stability, and its development track was basically complete without deviation.

From the beginning, ancient Chinese laws were related to power but not to rights, regardless of public law and private law; It is a social culture based on "obligation", not the "standard" of power in ancient Greece; It is a top-down patriarchal society, and it is a "family-oriented" country-the people transfer their rights to the country, forming the ethical power of "the monarch is the father of the world", which is supreme and unquestionable, and even deified as a power form that is divorced from the original rights. The requirements of the law for everyone are, first of all, all kinds of absolute obligations to society (family, country). This requirement, taboo, and the practice of not giving them rights or less, although the narrowness excludes the civil function of the law as a model of feudal law in China (such as Chapter 12 of the Tang Law), is characterized by the fact that the legal provisions are mainly criminal, and civil legal acts and moral acts are also criminal. It handles civil cases and adjusts civil relations through the state and punishment, so as to deter illegal and criminal acts and maintain stability.

When a region's society is still developing and social contradictions are not intensified, it is difficult to be divorced from history. Even if there is a crisis, it is difficult for people to accept an "advanced" culture immediately. The cultural direction chosen at the beginning will guide people to keep moving forward, make their own adjustments and consolidate and deepen, and the result may be to adapt to the development of the times or become a barrier in the future.

The same is true of the legal culture in ancient Greece. Its formation did not anticipate the achievements after thousands of years, but only adapted to social development.

In a word, since God has arranged human beings in different corners of the earth, it is doomed to different paths for human beings.

It is gratifying that we are still developing and still have the right to choose. We can predict the future more scientifically and make correct long-term choices because of the development of the times. At the same time, we should also see that our sight will never reach the whole future, so we should make the most suitable choice according to the reality, just like our ancients.

Note: See the bibliography.

1. Criminal Psychology Wei Jianxin Nankai University Press &; Wang Xuelin

② The Origin and Development of Science and Technology Culture Li Jianshan, Nankai University Press

(3) the history of foreign legal system law publishing house.

④ Chinese and Western Laws —— Discussion on the Differences between Public Law and Private Law Zhang Guanghui Zhu Xiaoyuan.

⑤. Ancient Greek Philosophy and Law Jiang

6. And other online materials and library bibliographies.