Confucian legal thought?

Confucian legal thought (1) The theory of "ritual governance for the country" During the Western Zhou Dynasty and the Spring and Autumn Period, the rituals of the Western Zhou Dynasty were deteriorating, reaching the point of "the collapse of rituals and the collapse of music". At this time, Confucius and a group of Confucians demanded the restoration and strengthening of a set of patriarchal hierarchical systems with an aristocratic system as the core, and advocated the "restoration of rituals." But they only followed the rituals of the Western Zhou Dynasty in form, but their understanding of rituals and the application of rituals were obviously different from those of the Western Zhou Dynasty in terms of content. They transformed the rituals of the Western Zhou Dynasty. Mainly manifested in the following aspects? 1. They regard etiquette as the fundamental system of the country, that is, the system that establishes and maintains a unified aristocracy and a hierarchical order of monarchs and ministers. The so-called "serving the country with propriety" expresses Confucianism's understanding of the status and role of propriety in politics. The difference between the Confucian etiquette and the Western Zhou etiquette is: first, the Western Zhou etiquette is a specific regulation on politics, military affairs, sacrifices, etc., while the Confucian etiquette is the fundamental system of the country, and its status is the same as the current constitution. . Secondly, the rites of the Western Zhou Dynasty were rules and books that were not “dismissed to the common people.” However, since Confucian rites were the fundamental system of the country, they became rules and books that were “dismissed to the common people.” Analyze the following meaning of "common people under rites" at this time. Does it mean that rites have changed from rights to nobles and obligations to common people to equal rights and obligations to everyone? To understand what Confucian etiquette is, we need to make it clear that Confucian etiquette is no longer a specific regulation, but has become the fundamental system of the country, which means that everything upheld by the Western Zhou Dynasty has become the system of the country. Rising to the level of a national system and being recognized by the country, in fact, it further institutionalizes, legalizes, and authoritates the rituals of the Western Zhou Dynasty? 2. They supplemented the "kinship" principle of the Zhou rituals with "promoting talents" and transformed it into a tradition The "nepotism" of "nepotism" is "respecting talents and enabling talents" under the premise of "relatives", thus negating the traditional system of "Shiqing Shilu". However, it should be noted that the principle of "kissing and kinship" in the Western Zhou Dynasty was not broken or cancelled, but was supplemented. The "kissing and kinship" of Zhou rites was supplemented with "promoting talents", with the purpose of selecting outstanding talents to serve the feudal nobles. In order to further consolidate their patriarchal hierarchy? 3. They regard etiquette as the legalization and institutionalization of the "Five Ethics" principle, that is, the code of conduct for dealing with the relationship between monarch and ministers, father and son, brother and brother, and friends. Use etiquette to determine "closeness" and "right and wrong". The "Five Ethics" is actually a moral category and should not be adjusted by law. Confucian etiquette does give it legal meaning and elevates it to the level of a national system. Summary: Confucianism’s transformation of Western Zhou rituals actually further elevated the status of rituals and regarded them as the fundamental system of the country, and the core of the national system is “kissing relatives” and “respecting respect”. "Promoting talents" is used to supplement "kissing", and the hierarchy of monarch, minister, father and son is further clarified. In essence, the Confucian etiquette is no different from the Western Zhou etiquette. The only difference is that the Confucian etiquette is more institutionalized, comprehensive, theoretical, and more mandatory than the Western Zhou etiquette. (1) Focusing on the "Five Ethics" and emphasizing the "rectification of names" In legal theory, we need to study an issue: the relationship between ethics and law. Today, this problem seems to have been solved, and a consensus has been reached that ethics and law are both social norms of behavior, but there are obvious differences between the two. But in fact, in real life, the relationship between the two is not as clear as written in words. For example, Mr. Fei Xiaotong wrote in his "Country China" a true story that happened in the countryside after the reform and opening up: a rural married woman had an affair with a man in the village, and was discovered by her husband. Her husband was furious. Discount the legs of a man who was having an affair with his wife. The villagers didn’t think anything was wrong. But the man who was beaten went to the county court to sue his attacker. The husband was convicted of intentional injury according to law. At this time, the villagers felt that something was wrong. First, cheating on a woman is a taboo and should be severely punished. Second, it is legitimate for the husband to beat the man who had an affair with his woman, and there is nothing wrong with it. Third, the state should regulate cheating rather than punish beatings. Mr. Fei Xiaotong is a famous sociologist in my country. He conducts research from the perspective of sociology. However, his "Native China" attracted the attention of legal circles, especially jurists, who conducted legal thinking on the social issues in it. The story mentioned above is actually the influence that Confucianism left to future generations. First of all, Confucianism integrates ethics and law. On the one hand, it gives the main ethical principles the nature and effect of law. On the other hand, it emphasizes that law serves to maintain ethical principles, making ethics superior to law. The ethical principles of Confucianism mainly refer to the relationship between monarch and minister, father and son, brothers, husband and wife and friends, namely "benevolence to the king, loyalty to the minister, kindness to the father, filial piety to the son, brother and friend, brother to brother, husband to righteousness, wife to listen". This "Five Ethics" embodying dignity and inferiority is the core of etiquette and the fundamental measure for "cultivation of one's moral character, orderliness of one's family, governance of the country, and peace of the world". Secondly, based on the "Five Ethics" as the core, it advocates strict abide by the patriarchal hierarchy of "lord, ministers, father, son, son", and abide by "the king entrusts his ministers with courtesy, and the ministers serve the king with loyalty" , requiring that legislation and actions must be "justified and justified." Those who violate class status must be severely punished. (Think about whether the current situation of "justice" exists? Specific manifestations.) (2) Family-oriented, emphasizing "filial piety" and "loyalty" In a patriarchal society based on a small-scale peasant economy, the most basic social production unit and living unit are What? Home.

The family is a big family full of children and grandchildren. It organizes the members of society. There are men, women, old and young, grandparents, grandchildren, fathers, sons, uncles, nephews, husbands and wives. The home is the place where life and production are carried out. When away from home, there are officials and those who stay. There are people who smelt iron, spin yarn, and farm at home; the home is the most direct link for interpersonal communication. There are all kinds of people in the family from all walks of life, and there is no need to interact with others. The country is made up of families. The bond between family and country is ritual. Ritual regulates the relationships within the family, and it also regulates the relationships within the country. Li not only regards "home" as the basis for "settling down and establishing a life", but also regards "home" as the basis for "loyalty to the emperor and serving the country". To sum it up in one sentence, it is what Mencius said: "The foundation of the world lies in the state, and the foundation of the state is at home." Why do you say this way? The reason is: First of all, the rule of etiquette requires people to be "filial" in the family, and filial piety means absolute obedience to the patriarchal parents. The main manifestations are: children must be filial to their parents (filial piety is the most important thing than respecting relatives), younger siblings must respect their elders (if there is a father, follow the father, if there is no father, follow the elder brother), and the humble child must obey the noble (). Secondly, the rule of etiquette requires people to be "loyal" in the country, that is, loyalty and obedience to the monarch, which is an extension and expansion of filial piety. Confucianism believes that "filial piety and kindness lead to loyalty." Being filial will lead to loyalty, and filial piety itself is equal to being in politics. Someone asked Confucius: "" Confucius replied "". Why were there four kinds of archways in ancient times: "loyalty", "filial piety", "jie" and "righteousness"? That's because the ancients believed that the four are connected. (3) Based on hierarchy, emphasizing "differentiation between high and low" Confucianism emphasizes "correcting one's status" and emphasizing "loyalty" and "filial piety", which is nothing more than strictly distinguishing between upper and lower grades, high and low. Confucius said: "The etiquette and music regulations originated from the Son of Heaven." Mencius said: "There is a way in the world. The great virtues serve the small ones, and the great sages serve the small sages." In the state-owned system, it is the general meaning of the world that "a small amount of work is done, and a person who is not worthy of being virtuous" is the general meaning of the world. 2. The theory of moral governance of "governing with virtue" must first understand what "virtue" refers to. Virtue, in the Western Zhou Dynasty, was a comprehensive concept that integrated morality, politics, beliefs, and strategies. It included both specific behavioral requirements and basic principles. Confucianism inherited the "virtue" of the Western Zhou Dynasty and also transformed it. Mainly manifested in:?) Highlighting the political significance of "virtue" and elevating virtue to a method of political governance, such as lenient benefits to the people, implementation of benevolent government, etc. (2) Elevated the status of virtue, believing that virtue is higher than the power of the monarch, higher than the country and the law. Why do you say this way? Confucianism regards virtue as the standard for "ruler" and "tyrant", and as the guiding ideology for governing and judiciary. (1) Use virtue and punishment together, and use punishment to supplement virtue. This is the basic relationship between virtue and punishment. Confucianism admires the Western Zhou Dynasty's "clear virtue and careful punishment", but at the same time, through the disputes in the Spring and Autumn and Warring States periods, Confucianism has realized the limitations of virtue and should use punishment to assist the application of virtue. Mencius said: "Being good is not enough for government, and being law is not enough for oneself." So are the two on equal footing? Confucianism still advocates "governing with virtue", praising virtue and governance is like the North Star, the center of the stars, and punishment is just one of the stars surrounding virtue. Why do Confucians have this kind of thinking? Because Confucianism believes that although administrative and penal measures can prevent people from committing crimes, they cannot eliminate their inner criminal motives; and using virtue and etiquette to educate people can consciously abide by the law and eliminate criminal motives. As the saying goes: "The way is based on virtue, the way is based on etiquette, and there is shame and dignity; the way is politics, the way is punishment, the people are free and shameless." (2) Pay attention to education, use virtue to remove punishment "Education" refers to people Inculcate patriarchal ethics and hierarchical concepts. On what ethical basis is Confucianism's emphasis on "education" based? Confucius and Mencius advocated the "theory of good nature", "At the beginning of human beings, their natures are good, their natures are similar, and their habits are far apart. If you don't teach, your nature will change." The moral differences between gentlemen and villains are acquired, and villains can be made to abandon them through education. Evil follows good and becomes a gentleman. Therefore, compared with punishment, education can (1) maintain people's good nature (2) education can prevent crime (2) after committing a crime, education can make the criminal's conscience aware. This is achieved. The purpose of "removing punishment with virtue". This educational and preventive thought of "removing punishment with virtue" is the creation and contribution of Confucianism. (Thinking: To this day, the educational and preventive thought of "removing punishment with virtue" is working .) (3) Be cautious about killing before punishing, and teach first before punishing. "Be careful about killing before punishing, teach first before punishing" is actually an extension of "pay attention to education and use virtue to avoid punishment". Confucianism advocates "pay attention to education and use virtue to avoid punishment." ", they require "teaching first and then punishing", that is, educating first and then punishing. If punishment is used because there is no education, it is "tyranny", which is what they call "killing without teaching is called abuse." Confucian compassion Punishment and careful killing are mainly reflected in the lenient treatment of criminal acts in accordance with the principles of etiquette and justice. For example, Confucius advocated that "the father should hide for the son, and the son should hide for the father." 3. The theory of "government depends on people" in a country. , what plays a decisive role? In other words, what supports the life and death of a relatively peaceful society? Some people say it is the moral influence of the ruler, and some people say it is the coercion of the law. Since ancient times, this is the "rule of man" and "the rule of law." "The focus of the debate. Confucianism advocates "the rule of man", and they explain it from different angles. Confucius and Mencius start from the relationship between morality and politics, believing that politics is the expansion of morality, so they focus on and emphasize the decisive role of those in power in governing the country. , believes that “if a person survives, his government will be successful; if his person dies, his government will cease.” Xun Kuang analyzed it from the perspective that people and law are both tools of governance, and believed that among the two, people play the role of determining law.

The so-called "law cannot be independent, and species cannot act on its own. If it has its people, it will survive, if it loses its people, it will perish." Analyze why Confucianism puts forward the idea of ??"rule by man". In fact, "rule by man" is "rule by etiquette" and "rule by virtue" Derived from it, and with "rule by etiquette" and "rule by virtue" as its main contents: the patriarchal hierarchy is the principle and characteristic of "rule by etiquette". The higher the level, the greater the privileges and the greater the power, the greater the individual ruler. The greater the effect, so "rule by etiquette" will inevitably lead to "rule by people". At the same time, the more virtuous the ruler is, the more "people will be convinced", and "rule by virtue" can only be truly implemented by people with high moral standards, so "rule by virtue" can be truly implemented. "Government" will inevitably lead to "rule by people." (1) Sages determine rituals and laws. Confucius: "The conquest of rituals and music comes from the gentleman." Only the emperor can make rituals and music and have the power to legislate. Therefore, the emperor maintains the destiny of the country. Confucius said “One word can make a country prosper, one word can destroy it. "When Duke Ai of Lu asked about politics, Confucius replied: "Civil and military policies are based on strategic policies. As long as the person survives, the government will flourish; if the person dies, the government will cease. -------So government depends on people. "It means: The best systems and policies are those of the Western Zhou Dynasty during the reign of King Wen and King Wu. These are all recorded in the canons. As long as there are wise men like King Wen and King Wu, their politics can be realized. Otherwise, it will not be possible. Realization? Therefore, Confucianism advocates that the emperor should use his virtue to maintain the survival of the country. Confucius said, "If the son is in charge, why should he kill?" The son wants to be good and the people will be good. Mencius said, "With a righteous king, the country will be settled." "To this end, Confucianism advocates the selection of talents based on the principle of "not losing close relatives" and "not losing relatives far away". That is to say, we should not only appoint relatives and nobles, but also allow those talents who are not from aristocrats to directly participate in state affairs. (2) ) "Being upright and acting according to orders? Confucianism believes that the key to 'rule by people' is that rulers must be able to "rectify themselves" through legislation and use their own personal charm to influence the people. Personal charm includes many aspects, the core of which is excellent quality and the words and deeds of a gentleman. Confucius believed that only by first "cultivating one's character" can one be able to "keep the family in order" and then "govern the country" and "pacify the world". "If his body is upright, he will act if he is not ordered to do so. If his body is not upright, he will not obey orders." If a ruler behaves upright, the people will act without giving orders; on the contrary, if his behavior is not upright, the people will not act even if he is given orders. obey. (3) The law precedes the king and obeys human feelings. Confucianism emphasizes the role of people in the relationship between law and people, and also emphasizes the role of ancient sages in the relationship between real monarchs and ancient sages. Therefore, they "ancestrally recounted Yao and Shun, chartered civil and military affairs" and took ancient sages as their models. Mencius proposed that "sages are teachers of all ages." The admiration for the ancient kings actually set high standards and strict requirements for the actual rulers; at the same time, he used the ancients to promote his own ideas.

This method was also used by later generations. Will we talk about Kang Youwei's "restructuring through ancient times"?