The Influence of the Guiding Ideology of the Legal System on China's Legal System from the Xia and Shang Dynasties to the Han Dynasty

Since Emperor Wu of the Han Dynasty, the guiding ideology of the legal system of "Virtue and Punishment" has become the cornerstone of the feudal orthodox legislative ideology of the succeeding dynasties.

Since the Warring States period until the Qin Dynasty, the feudal system has been gradually established, and in the legal system, the law of feudalism has replaced the law of slavery. But as far as punishment is concerned, the Warring States and Qin Dynasties still used the old five penalties for slavery, but only to meet the needs of the situation, and added many new types of punishment, so that the old and new penalties mixed, making the penal system seem disorganized.　　

Flesh punishment was originally a punishment for slavery. The abolition of flesh punishment by Wen and Jing followed the trend of historical development and was conducive to the protection of the productive forces of society. The reform of the penal system by Wen and Jing was an event of historical significance in the history of China's ancient legal system, and was an important symbol of the transition from the five penalties of slavery to the five penalties of feudalism.

The legislation of the early Han Dynasty and its legal content were originally inherited from the Qin law, and the two have the same inherited relationship. It is only in the application of the law that the early Han Dynasty pursued a policy of doing nothing and ruling with leniency in the application of penalties, which differed greatly from the Qin Dynasty's emphasis on harsh and severe punishments. However, since Emperor Wu of the Han Dynasty "dismissed the hundred schools of thought, exclusive respect for Confucianism", the Han law has undergone a major change, began to gradually embark on the road of Confucianization.

First of all, the Han law to establish the moral main criminal auxiliary legal thought. Confucianism advocates the "rule of virtue" and "rule of etiquette", and Legalism insists on the "rule of law" and "heavy punishment". "Both of them have their own bias. Emperor Wu of the Han Dynasty learned the lessons of the Qin Dynasty, under the guidance of Confucianism, based on the doctrine of yin and yang and five elements, the establishment of the main moral and criminal law, laid the legal system that combines moral education and punishment and suppression.

Secondly, the Han law strengthened the monarch's authoritarian power. Following the creation of the emperor system by Emperor Qin Shi Huang, the Han Dynasty, based on the hierarchical order of nobility and inferiority advocated by Confucianism, and based on the theory of the divine right of kings, further systematically provided for a whole set of laws that strengthened and divinized the monarch's autocratic imperial power.

Once again, the Han law upheld ethical relationships. The Han law took Confucianism's preaching of propriety and ethics as its standard, and established a set of hierarchical order and social relations centered on the Three Principles and Five Principles. The actual purpose was to maintain the feudal hierarchy and ethical and moral order.

Finally, the Han law stipulated Confucianized principles of punishment. The Han law rejected the legalist tradition of "rule of law" of the Warring States and Qin dynasties, which was based on the Confucian principles of "benevolent government" and "moral government".

Taking Confucianism's ideas of "benevolent government" and "rule of virtue" as a guide, the principle of feudal hierarchical privilege was formally legalized, and Confucian principles of applying penalties, such as the principle of petitioning to protect the judicial privileges of bureaucrats and nobles, the principle of compassionate punishment for the old and the young, and the principle of mutual concealment in which relatives have to be head of the same person, were established, which changed the direction of the development of the Han law.

The influence of the above legal thinking on ancient Chinese law after the Han Dynasty, and even on the modern legal system, is still far-reaching.