Author: Zhou Xiang, Professor, School of Criminal Justice, Zhongnan University of Economics and Law
Source: Criminal Law Review (45)
As a criminal law scholar, Deng Zibin cross-border wrote the monograph "Principles of Criminal Procedure" and practiced the concept of "criminal integration" advocated by Professor Chen Xingliang, but it is entirely possible in the Chinese academic circles to surprise the "acquaintance society" of the "Shui Po Liangshan style", so as to form an unspoken rule spectacle that excludes strangers from migrating in. Deng Shu has always emphasized the core concept of procedural justice taking precedence over substantive justice in the course of criminal proceedings. Only the substantive rules of "people rule society" and "underworld rivers and lakes" will turn "honest" croppers into "Zhang Qing of the cross slope", disregarding the objective form of procedural rules, and the heart is actually full of cunning malice. Deng Shu intersperses many beautiful classic stories in ancient and modern Chinese and foreign historical, literary and realistic texts, and uses clear language to give a unique and interesting legal interpretation from the perspective of criminal procedure, so as to clearly explain the truth, logic and principle of the criminal procedure law behind the matter, and avoid the inducements, traps and sophistry behind the "beautiful looking" discourse routines that are common in academic or practical circles. Throughout the book, it is repeatedly emphasized that a not-original conception of the rule of law is "old" or "traditional" or "recognized": "Procedure is the last bastion of freedom, and without procedure, the rule of law is nothing." Only by quoting the universally recognized procedural concepts and their rules, and practicing them in good faith, is the only way to move towards litigation civilization. "This seemingly non-substantive point of view innovation, the adherence to common sense, is precisely the most scarce academic spirit in the construction of our rule of law." Leaving the tradition of litigation civilization precipitated by hundreds of thousands of years of historical lessons, and looking for a variety of local knowledge and characteristic innovative views, I am afraid that most of the traps and mistakes that have been proven to often trip people up are probably obtained.
If there is no "beauty endowment"—— from the classical Chinese text "Principles of Criminal Procedure"
01
Lucky for the "Drifter"
Teacher Wang Renbo said in his beautiful "Look at Me": "A good book, a good article usually carries a Trojan virus, which will infect our hearts." ”
Figure | "Look at What I Say"
As we all know, it is easy to produce a book now, but it is more difficult for a good book to be published and survive in the "reverse elimination" book market.
The birth of a good work is like a big wave of sand, just like the survival of the handsome Moses, first of all, the beauty must infect the hearts of several silently contributing midwives (publisher editors), determined to cross the sea in secret and violate the instructions of the Egyptian pharaohs, and save the life of the baby boy. Little Moses also had to infect his mother's (author)'s heart with his beauty, and he hid him for three months, but he couldn't hide it, so he exiled himself to the river and let his fate drift. Fortunately, the handsomeness of little Moses infected the heart of Pharaoh's beautiful daughter (reader), and as soon as she saw him, she felt pity, pulled him out of the grass box floating in the river of destiny, loved him, adopted him in the palace, and grew up to become a figure who influenced the history of human civilization. It is as if history always presents a kind of "beautiful anti-two laws": the beauty of women is a scourge, harming others and harming themselves, and falling into the country. A man's beauty is a blessing, a touching feeling, saving oneself and saving the country.
Figure | Milan Kundera
Kundera, a literary artist who is praised by Mu Xin as a "wanderer of the spiritual world", in his novel "The Unbearable Lightness of Life", the male protagonist Thomas looks at the beautiful woman Teresa who meets unexpectedly and sleeps in bed, and has a psychological description, which interprets the spiritual and cultural imagery of little Moses: "He once again felt that Teresa was a child who was placed in a resin-coated basket and floated down the water. How could he let this straw basket with a child float down the river to the raging river? If Pharaoh's daughter had not grasped the basket that carried little Moses away from the waves, there would have been no Old Testament in the world, no civilization as we know it today. How many ancient myths begin with the story of the rescue of an outcast! ”
When I first saw the book Principles of Criminal Procedure, it was like the pharaoh's daughter saw the handsome little Moses, and Thomas looked at the beauty Teresa, and his heart seemed to be infected by the same good look, like a worm Trojan virus, automatically blocking other running programs. I simply concentrated on a few days, slowly and carefully read it, and wrote down some local impressions of the flowers.
The patchwork of the partial perception of this book is not systematic, but "the part is a pile of drifting bottles, containing the parties' one-to-one praise and one sigh, which he has thrown into the sea one after another... Someone will pick up the bottle and look at it, or agree, or be surprised, and the intimate or strange that moment of perception is worthy of that part. Because, kind or strange, is not numbness", but an infection, although it is willful, wild and sensitive, but also sincere.
02
The experience of the "stranger"
As a criminal law scholar, Deng Zibin unexpectedly and suddenly wrote a monograph on "Principles of Criminal Procedure", which specially wrote the ideals, theories and practices of criminal procedure. It can be seen that "no matter how high the wall of discipline is, it cannot stop the freedom of thinking." I don't know how the legal profession today, especially the criminal procedure jurisprudence community, which has been hastily invaded by strangers, will react. I think that whether it is appreciative acceptance, critical rejection, or both reactions, it is a normal academic ecological response. Only a mentally numbing reaction: an elephant sits on the ground, people pretending to be blind, sideways detours, silent.
Figure | Strange Experiences
The difficulties and risks of cross-border creation remind me of a story told by Chen Danqing in Strange Experience: in 1912, the famous painter Duchamp suddenly challenged the familiar tradition and used the extremely unfamiliar Cubist method to paint The Walking Down the Stairs, but was rejected by his contemporary surrealist peers. Duchamp said the incident woke him up and decided not to paint again. What can a painter do when he stops painting?
In 1917, he brought a urinal to the exhibition, named "Spring", and in 1919, he painted a beard on the face of the Mona Lisa in a postcard. These two disgusting "works" of the art world at that time, half a century later, turned out to be the symbol of Duchamp's avant-garde art, and were grabbed by the Museum of Modern Art for exhibition collection.
Figure | "Spring"
It seems that the history of human thought has always repeatedly staged tragic stories such as "the stone abandoned by the craftsmen at first has now become the first corner stone". At least in mainland academic circles, we can feel a relatively stubborn unspoken rule of discipline discipline: often on the grounds of profession and disciplinary scope, forming a defensive alliance that draws the ground as a prison, rejecting those interdisciplinary thinking, observation, writing, publishing, and publishing.
Indeed, within a country, there should be no "small country of widows" in which strangers are not allowed to enter, and there should be no formation of a city defense fence in which the voices of chickens and dogs are heard but the old and dead do not interact with each other. If viewed from the perspective of criminal integration, the stroll from criminal law to criminal procedure jurisprudence is a normal exploration in the field of criminal law, and from the perspective of other countries' academic circles, it is not yet possible to talk about the cross-border of disciplines in the typical sense, but in the Chinese academic circles, it is entirely possible to greatly surprise and frighten the "acquaintance society" of the "Shui Po Liangshan" style, so that it has formed an unspoken rule spectacle that refuses strangers to migrate in.
Perhaps there is some underlying concern, the author's mentor, Professor Chen Xingliang, pointed out in the preface to the book that criminal law and criminal procedure law belong to the academic field of criminal law. In other countries and regions, there are many scholars who are engaged in the study of criminal law and criminal procedure law at the same time. This does not contradict the idea of establishing a certain height of "professional grooves" between disciplines proposed by Professor Chen Xingliang before.
In fact, Professor Chen Xingliang can be described as a rare scholar in China who advocates and practices academic inclusiveness in the discipline. Articles written in an alternative style or cross-border that cannot be tolerated in all other legal journals can always retain a place in the Criminal Law Review under his auspices, and they can be published and let people see the truth. Presumably, many young and middle-aged scholars whose fame is now so red that they are purple have been generously promoted by Chen Xingliang's teacher Hai Na Bai Chuan when they were still unknown.
Of course, as far as individuals are concerned, if they lack specific professional theoretical knowledge and long-term accumulation of relevant practical experience and rush across borders, it is as if they do not understand the "rules of the rivers and lakes" and "black words", but rush into the "Water Po Liang Mountain", and there is a risk of being cut off by the big guys of the jianghu and accepting the "name of submission". Therefore, even the "atypical crossover" between subdivisions within the integrated criminal law university discipline does have great risks and needs to be written with caution.
However, Deng Zibin does not have this cross-border writing "strange risk" problem, because he "wrote books for three years", pondered and deliberated, carefully polished, and became a sword. In the impetuous era when books and articles were published in the academic circles, paying attention to more, faster, and more provincial, competing for fame and profit in the market, and even plagiarism and counterfeiting became a common practice, there were very few people who could concentrate and be patient in theoretical accumulation and sharpen a sword for three years. In particular, over the past 25 years, he has personally represented more than 50 criminal cases as a part-time lawyer, accumulated rich practical experience, experienced the "pain of the skin" of many criminal proceedings, and his familiarity and sensitivity to the superficial and unspoken rules of the criminal litigation world are so high that it is difficult to find a second person in the field of criminal law.
Although the summarization, accumulation and dissemination of most human knowledge are mainly done indirectly through books, and do not require personal action, for legal knowledge, it seems that there is no personal visit to the detention center or the scene of the court, and it is always felt that the paper is shallow. It's like watching Michelangelo's "David Sculpture", just looking through the picture book pictures, "it is not easy to get around his back and see people's butts." That's the benefit you can enjoy on the spot."
Deng Zibin has visited the scene of the lawsuit many times, and has seen and touched the curved outline and bump details of the criminal proceedings in all directions, including the "backdoor butt" of the criminal proceedings, as if he also smelled a stink. He also wrote out the whole ass and smell so that the reader could see and smell it. As for writing out the real situation, whether some people hate it or whether some people don't care about it is not the most important thing. The most important thing is that "you see and write it out, and you take a big step."
"Without contrast, there is no harm." Compared with Deng Zibin, who has rich experience in criminal procedure practice, as a teacher of criminal law colleges and universities in a broad sense, I am just a swimming coach who has been talking on paper on the shore for many years, but has never been in the Haihe River, and my practical experience and related theoretical knowledge of criminal procedure can be described as extremely unfamiliar.
If you are a stranger, but you are familiar with it, and dare to be short and scare people into being long, you will definitely mistake "Feng Jing" for "Ma Liang". Just like Teacher Hong on Chai Jinzhuang, the pomp is very broad, the name is not small, he can light a flower stick, his mouth is the hardest, he has to provoke words, and challenge the Head of Lin Jiao, who has worked the battlefield. It was self-deprecating, really fighting, less than three moves, it was hit by a stick, fell to the ground, and everyone laughed together. Therefore, today I want to "cross-border" comments on the "Principles of Criminal Procedure", and indeed I have never felt so hesitant, afraid that the step of "lifting the stick to rush in" is too big, and if I accidentally pull myself into a "waste youth", I will lose my ugliness in front of the real sect leaders of the forbidden army in the capital and the zhuang guests, and I will struggle to get up and be ashamed.
Fortunately, Deng Zibin's "Principles of Criminal Procedure" generally has a writing feature: he paints the ideal picture of criminal procedure in his mind more than talking about the actual laws of the mainland criminal procedure law. This may avoid the shame of exposing my ignorance of the specific provisions of the Code of Criminal Procedure.
Figure | Oil paintings from the Garden of Eden
Eve, the first ancestor of mankind, made the same mistake. Eve faced the strange ancient snake that suddenly broke into the Garden of Eden, probably thought that she could stand up, but like Confucius, she "did what she wanted without exceeding the rules", so she boldly talked with the ancient snake who could speak eloquently, and even knew that she immediately fell into the trap of the ancient snake's "sophistry" discourse, unconsciously misunderstood the details of the law, was misled and transgressed, crossed the boundaries of the law, and stole the forbidden fruit on the knowledge tree. Although in Deng Zibin's view, Eve stole the forbidden fruit across the border, "'the eyes are bright', 'can know good and evil', which is obviously nothing bad", but in fact, what people see at this time is not their own beauty and glory, but their own lack of clothes and regrets, illuminating the ignorance and shame caused by narcissistic pride.
In daily life, adults often warn children, "Don't talk to strangers", afraid that children will be deceived and killed because of their childish ignorance. As everyone knows, the reason why strangers are dangerous is precisely because the "strangers" themselves, like the strange ancient snakes that suddenly broke in in the Garden of Eden, are born with a fatal beauty and have a fatal attraction to people. It was that mysterious strangeness that made Eve prefer to believe and fall in love with the outsider, forgetting the admonition of adam, a familiar lover who had been guarding each other in the garden.
The ancient story of the Garden of Eden stealing the fruit of wisdom is a metaphor for man's desire to learn. As the saying goes, "Curiosity kills cats", but dogs are more curious than cats. Cats have always been indifferent to strangers, and when dogs see strangers, they desperately pounce on them, barking and biting, and are extremely excited. People are always more like dogs than cats, and love strangers more than acquaintances. Even if you are drunk with a stick and bruised, you always hope that you can turn the stranger you meet into an acquaintance, friend and even a close lover. Then to the overly familiar and tired she said, "You are so beautiful, you are so beautiful, but I must betray you", turning his back on her, looking for the next stranger.
The process of growing knowledge is like falling in love, a game that turns strangers into familiar lovers, and familiar lovers into familiar strangers. Deng Zibin said in the preface: "The book written by Sanzai Yangwu is not only a tribute to the teacher, Mr. Chen Xingliang, but also a personal thought experiment. What he called an "experiment of thought," if it had any special epistemological meaning, was probably similar to a "love experiment."
The literary scholar Kidd wrote a short story "Love Experiment", and the story has this metaphor for "thought experiment": Luke and Rachel met in the spring, loved each other, united with each other, and then went all the way, spent the whole happy summer, and in the autumn, they felt the hunger of love, looked away, and soon they parted hands without tears or smiles, because they each quietly started the wind of thought and thought of something new. "The objects of our desires, like those easily broken aggregates, are ashes with the touch of a finger. As long as it blows, whatever the wind is. Rise up, the wind of my thoughts. ”
Regarding man's intellectual orientation, whether he should take root in the local area and stick to the familiar Garden of Eden, or whether he should boldly eat the "forbidden fruit" on the tree of knowledge, open up strange dangerous worlds and accept its trials, is an eternal contradictory topic, and it is difficult to say whether it is right or wrong. Sometimes we have to look at what the specific social environment already has, and then judge what is most lacking. Generally speaking, the mainstream view of mainland academic circles tends to the former, emphasizing that each country has its own unique theory and practice of criminal law, and believes that the study of criminal law, as a practical rationality, cannot be like a philosopher walking on the road and looking at the distant starry sky, thinking "living elsewhere". My mentor, Mr. Qi Wenyuan, emphasized the practicality and practice of legal science in light of the times, but he actually did not oppose it, at least to include the value and significance of the study of legal theology with Chen Xingliang as the benchmark of another idealized orientation.
But think about it in reverse, perhaps the rule of law is not good, precisely because in the bones too much emphasis on looking down and being satisfied with the local resources or practical effects of legal science, too lack of scholars like Deng Zibin, like Abraham, leaving the rich hometown of Wu'er, leaving the native, native, and home that he is familiar with, unrealistically looking up at the stars like a fool, according to the guidance of a seemingly unrealistic ideal concept that he believes in his heart, he has been drifting west for nearly a hundred years, and has been a sojourn in a foreign land. Even to the point of death, he did not actually have the "more beautiful hometown" that the conception hoped for. The honest man Abraham drifted to live in the land of Canaan during his lifetime, and the only piece of land he got was actually a piece of land bought at a high price from the natives of Canaanite land for the burial of his wife Sarah and his own cemetery, The Cave of Mabila. It is indeed a cold reality that makes a huge ironic joke for honest people who believe in ideals. It was not until four hundred years after his death that the reverse story of "the ideal was finally realized" occurred in history, and the nation of Israel, as a small number of nomads who originally lived in other places, crossed the river to settle down, and successfully transformed into the famous "Hebrews", which means "strangers who crossed the river". I was skeptical about whether Deng Zibin and my generation could see the "concept of procedural justice" universally accepted and take root, blossom, and bear fruit before they died. But I have no doubt that he will sow the seeds of the ideal of procedural justice and the rule of law with confidence and efforts in the winter early in the cold and hopeless thick ground.
Figure | Abraham Artwork
If we look at reality, shrewd, pragmatic, sleek and sophisticated, people are probably the least likely in the world to accept the ideal goal of procedural concept and procedural justice. But Deng Zibin still believed and worked hard to promote it so uncompromisingly. Perhaps there are always a few honest people who still believe in their hearts and put into practice, just like Lot, believe in the fairy tales told by uncle Abraham, and follow him out of the familiar hometown of Ur, looking for and walking towards the illusory and strange ideal country.
03
The viciousness of the "honest man"
On a cognitive level, familiarity is not always a good thing, and strangeness is not always a bad thing. In fact, ignorance and strangeness are the driving forces for people to learn. For example, my unfamiliar experience of knowing almost nothing about the discipline of criminal procedure may also have a distance effect that stimulates curiosity, which makes me less of the psychological burden of making common sense mistakes because of a half-understanding, and a little more of the unexpected expectation psychology of "flowers and flowers are too old to be high anyway, dead pigs are not afraid of boiling water, if they want to die, they have to flirt with people's wives and daughters across borders, and they must not marry the beautiful lady of lin chong, an honest person" .
So I said in my wild comments on this book, if there is a sentence that happens to be won, isn't it an unexpected surprise? It's like eating a bowl of cheap seafood noodles at a food stall, and a chopstick is sandwiched with a scallop pearl. If my comments are frequently wrong, it will only expose my expected mediocrity and ignorance, and will not produce the effect of Qian Zhongshu's "viciousness of loyal and honest people": "The viciousness of loyal and honest people, like a grain of gravel in rice or an impure thorn in a bone fish fillet, gives people a kind of pain that is not expected." ”
Speaking of the "viciousness of honest people", Deng Zibin set an analogy in his preface "If there is no criminal procedure law - from the Book of Genesis to the Five Emperors Benji", when talking about the relationship between substance and procedure: "Someone has the privilege of killing, this privilege can no longer be recovered, but there are two ways to set limits, one is to stipulate that 'only bad people are allowed to be killed, not good people'; the other is to stipulate that before killing a person, you must first run a lap in the standard sports field." Which approach do we choose to effectively limit the number of killings? The first belongs to the physical standard, 'looks beautiful', but it is difficult to implement, because the standard of good and bad is in the hands of the murderer. The second is procedural limitation, which at first glance sounds absurd, but when thought about, it is easy to implement and easy to supervise".
Smart parties who want to make themselves comfortable with the use of power must choose the first "lofty" substantive standard and are unwilling to accept procedural limitations. Deng Zibin thus concluded: "The procedure is the rule of the game for honest people, just imagine, a person who honestly follows the requirements of the rules and kills people every time he runs 400 meters in the sports field, it is difficult to imagine that he will not act according to other rules, such as not killing innocents indiscriminately." On the contrary, the murderer who does not have to follow the rules of procedure and only obeys the standards of good people and bad people in his heart is unlikely to be an honest person. ”
I thought that this was just a metaphor conceived by Deng Zibin, but I did not expect that Chinese history is actually full of such examples of killing and eating people in the name of justice. As Mr. Lu Xun said: "Everything must always be studied to understand." In ancient times, people used to eat people, and I remember it, but I don't know much. I opened the history and looked it up, and there was no age in this history, and the words 'benevolence and morality' were written on each page of the crooked and slanted page. I couldn't sleep horizontally, and I looked carefully in the middle of the night before I could see the words in the cracks, and the two words were written all over the book: 'cannibalism'! ”
In the "Water Margin" that we are familiar with, there is a wonderful story of "WuduTou Cross Slope Meets Zhang Qing", which just reflects the false restriction of substantive justice. This is discussed below.
Zhang Qing and his wife Sun Erniang opened a black shop in Cross Slope to sell human meat steamed buns. Zhang Qing, as a hero and a good man in the jianghu, set a beautiful-looking killing rule: "Only kill bad people, not good people." For example, Sun Erniang almost threw herself over and killed Wu Song by mistake, and later apologized: "There are eyes that do not recognize good people." When he did not know for a moment, he hoped that his uncle would forgive his sins. ”
Figure | Water Margin artwork
But a closer look at the story reveals that this substantive rule is too hypocritical, at best a moral guise of benevolence and righteousness. The real picture is much more pickled than we've seen.
In a large paragraph of self-introduction to "brother" Wu Song, Zhang Qing clearly said that he was selling wine for a living, "In fact, he only waited for the merchants to pass, and those who entered the eye, they ate some Menghan medicine with him and died, cut large pieces of good meat into yellow beef and sold, and piecemeal small meat was made into stuffed buns." The little people also pick some to sell in the village every day." It can be seen that this "eye-catching" standard of killing has been made very clear, and it is not the so-called moral distinction between "good people and bad people", but only the geographical distinction between "local acquaintances and foreigners". In their eyes, all the merchants from other places are just licensed goods to be killed, and in principle they can be killed. Moreover, the past merchants in the field can be killed, regardless of whether they are good or bad, or fat or thin, just as Sun Erniang turned over the three people of Han Wusong and his party in the field, and explained to the shop Xiao Er: "This kind of fat, good to make yellow beef to sell." Those two skinny barbarians had to make buffalo beef to sell. ”
Even if Zhang Qing really wants to implement the substantive rule of "only kill bad people, not kill good people", it is not good to operate or cannot be operated, because the so-called entity standards are usually more flexible than the flag, can move with the wind, change with the heart, and are not reliable at all. For example, Zhang Qing instructed Sun Erniang's "three no killing" implementation rules: "Yunyou monks do not kill, prostitutes in the courtyard do not kill, and exiled criminals do not kill." None of the three reasons he gave really conformed to the distinction between good people and bad people. If we say that the majority of "good people" are "good people" in the yunyou monks' way, eating and praying to the Buddha, it is barely justified; prostitutes deserve sympathy because they are forced by life to engage in prostitution, and their lives are not easy, and it is also reasonable; but it is completely unreasonable to say that there are many "good people" among the criminals who are in exile.
Figure | "Water Margin" film and television works
When Zhang Qing explained that "there are many good men in the middle of the people who are in the middle of the criminal flow, and they must not spoil him", in fact, he inadvertently confuses two concepts logically: the "good man" with energy in the jianghu and the "good man" who has morality in society. In fact, a careful examination of the one hundred and eight "heroes and good men" in "Water Margin", more than one evil deed of pits and deceptions, stealing chickens, dogs, picking quarrels and provoking trouble, bribery, bribery, murder, arson, and indiscriminate killing of innocents, and looking at the deeds of the 108 generals of Liangshan, it is enough to commit 483 crimes in the Criminal Law of the People's Republic of China today, and there are few good people in the sense of social morality!
Taking ten thousand steps back, even if Zhang Qing said that there are really "many good people" among the three types of people, it will not constitute a reason why the three types of people absolutely cannot be killed or killed. Because the negative proposition of the three types of people "the majority of good people" means that "there are few bad people". However, according to Deng Zibin's description, which is also familiar to our countrymen, the objective realism of "discovering the truth of crime at all costs" and the noble substantive concept of justice of "never indulging a bad person", even if there are "a few bad people" in a group of people, they are also to be killed, killable, and even resolutely must be killed. Zhang Qing's so-called "three types of people do not kill" substantive rule, to be precise, is not "three types of people do not kill", but for these three types of people "do not kill more", "do not kill indiscriminately", "good killing". It is similar to the substantive rule judgment position of adhering to the principle of "killing less", "killing cautiously", and "resolutely not killing if you can kill but not killing".
The substantive rules after such a demotion actually look good, and even more fair and reasonable than the absolute rule of "three no kills". However, the key question arises: what technical means do we humans have to strictly distinguish the "majority of good people" from the "minority of bad people" from the crowd, so that we can adhere to the substantive justice rule of "only kill bad people, not good people" without deviation?
What is very interesting is that Zhang Qing himself used the example of the actual operation of the "three no-kills" to tell the blurred truth of this kind of substantive rule restriction: in order to implement the principle of "a small number of bad people can be killed, want to kill, or even must be killed", it is necessary to kill some of the "good people of the majority", and in the most extreme case, it is even necessary to kill as many "good people as the majority".
Because the so-called substantive standards in this world are mostly different from person to person, from event to event, and from time to time, it is really impossible to find an obvious and unchanging standard for distinguishing between "good people" and "bad people". Our people even particularly like this kind of "rare confusion" substantive standard. "Confusion, the concept of right and wrong, and so on—originally China's noble morality."
Even with such physical standards, the logo labels of "good guys" and "bad guys" won't be written on everyone's face. Zhang Qing is also unlikely to ask each passerby, "Are you a bad person?" "Are you a good man?" It is impossible to really judge who is a "bad person" and who is a "good person". This means killing as many bad people as possible, and killing as many good people as possible. In the practice of killing people, the "good people" who entered the cross slope black shop also have very few successful cases of Zhang Qing and his wife who first misjudged and then left people under the knife. The process of successful error correction is really shocking, thrilling, and memorable. But this proves that this case of successful error correction can only be a chance in chance, an exception in the exception, and a fluke in luck.
Taking the rule of "don't kill the Yunyou monks" as an example, the famous Yunyou monk Lu Zhishen is relatively speaking, a hero and good man who can be called a morally good man in "Water Margin". But because he was born fat and fierce, and he looked like a fierce god, he passed by the cross slope and was regarded by Sun Erniang as a big bad person who was "good as yellow beef", so he "gave some sweat medicine, carried it into the workshop, and was about to start peeling, the little man (Zhang Qing) just returned, saw that his Zen staff was not vulgar, but hurriedly rescued the antidote and worshiped him as a brother." From this, I can only say that Lu Zhishen, a very good person, can survive on the cross slope, and he really lives just right, lives strangely, lives by chance, and lives luckily!
The other nameless head in Zhang Qing's mouth was not as lucky as Lu Zhishen. Zhang Qing said, "It's just a pity that a tou Tuotuo, seven or eight feet long, and a big man, also broke the numbness!" The villain returned a little late and had already removed his four legs. Only left... I think that this head has also committed suicide, and until now, the knife will whistle in the middle of the night. The little man only hated that he had not saved this man, and his heart often remembered him. ”
In Zhang Qing's eyes, is this head who made a human meat steamed bun "a good person" or a "bad person"? I don't know. When he was a bad person, why did Zhang Qing pity him, hating himself for not saving him from his wife's knife, and often remembering him? When he was a good person, why did Zhang Qing say, "There are many people who want to commit suicide with this head"? People who kill a lot of people are probably not morally good people. To put it bluntly, the merchants who come to this shop, who are the "good guys" and "bad guys", no one can be sure, can only rely on the personal desires, preferences, appetites, moods, emotions, and impressions of the husband and wife when they first met - all by the husband and wife's mouth.
When Zhang Qing, the knife bearer or the overseer of the knife, said, "There are many people who want to commit suicide", in fact, this also means that for those who have been killed, the husband and wife must have set off firecrackers to celebrate the celebration, celebrating and successfully identifying and severely cracking down on a bad person. Without thinking about not having to look at the human bones and the murderous knife that screamed in the middle of the night, Zhang Qing could also declare that this toutuo was a "bad guy" who had survived to die, thus ensuring that this was an iron case with clear evidence and clear facts.
The Nameless Head represents the vast majority of the "bad guys" who are forever silent, and who never have the opportunity and mechanism to prove themselves to be good people on the cross slope. And those who were successfully rescued after the ma overturned all proved that the entire "good people and bad people's justice judgment system" of the Cross Slope Black Shop was running normally, and the ability to self-supervise and correct errors was perfect. All those who were left under the knife were all married to Zhang Qing as brothers, became people in a circle, and proved to be good people, such as the famous Lu Zhishen and Wu Song.
Therefore, we still have to believe that Zhang Qing and Sun Erniang, who represent the heroes and good people and the righteous side, will never make a mistake in their characterization of good people and bad people. Although in the course of the operation of the human flesh workshop, they occasionally hesitate, occasionally look away, and occasionally impulsively. Even after holding the knife to "untie the cow", he will occasionally be emotional and compassionate to remember the dead rat, but the purpose of this "moving heart" that makes his heart vibrate is to achieve a more determined "forbearance". Therefore, according to the operating rules and logic of this entity, we may only believe that they, as judges, are always full of justice in their hearts, their eyes are constantly going back and forth between "good people" and "bad people", and the final judgment results in the black shop will never be wrong, and they will not be proved to be wrongly killed. All characterization is subject to the conclusions officially announced to us by Zhang Qing and his wife.
This reminds me of a scene in the American movie "The Iron Mystery": David, an abolitionist, and the governor of "Texas Butcher" have a public televised debate, and when David raises the view that even the best-run judicial system in the United States cannot avoid wrongly sentencing the death penalty, the governor solemnly takes out a notebook and retorts to David: "You can point out which of the detained death row inmates was wrongly convicted, you say his name, I will immediately pardon him." David was dumbfounded, for he really could not point out which of the detained criminals was a good person who was 100 percent innocent.
Figure | Movie "Iron Case Mystery"
According to Deng Zibin's deduction, Zhang Qing, the "honest man" of the cropper in the cross slope vegetable garden, has always adhered to the substantive rule of "only killing bad people, not killing good people", but in fact, when he kills people, he will definitely kill more and more smoothly, the more he kills, the more reasonable he is, and the more he kills, the more he has a sense of justice for Skywalker. In the end, we found that this kind of "man-ruled society" and "underworld jianghu" with only substantive rules will turn an "honest" cropper into a "Zhang Qing of the cross slope", and his heart is actually full of cunning malice. Mr. and Mrs. Zhang Qing look at any merchants passing by, in fact, they are not "humanoid", but just fat or thin or large or small licensed "four-hoofed beef". Frustrated, we can't say, he did this, what is wrong? Who did you kill by mistake?
In the same way, if Zhang Qing's human flesh shop has set a seemingly "absurd" procedural restriction of "no killing in a single day, killing people in two days", then Zhang Qing and his wife must feel very uncomfortable and awkward when they execute it. This is not because Zhang Qing's "two-day can kill" includes killing good people, and the burden of moral sense is generated in his heart, but it is precisely compared with the flexible and mobile "only kill bad people, not kill good people" substantive rules, the procedural rules of "no killing people in a single day" are too formalistic and dogmatic, making the knife-wielder crappy and stiff and uncomfortable. On the cross slope, no one may pass by for several days in a row, but on a single day, a group of "bad people" and "good beef", passing by in a bunch of pairs, can't open the itchy Zhang Qing, do you want to "roar when the road is uneven, when you should shoot", sacrifice the substantive justice banner of "for the Heavenly Path", numb them with sweat medicine, and use the knife to "solve the cattle"? This is a question that is particularly difficult to choose when substantive justice and procedural justice arise.
The formal limitations of the program are clear at a glance, leaving little room for bargaining or self-empowering expansion. For the enforcers of power, whether the person in power is a good person or a bad person, the "uncomfortable" effect of the procedure is equal and will not vary from person to person. Even if the bad guys play with the physical power and do bad things to the maximum extent under the premise of following the procedure, the scope of bad things will not expand indefinitely. If it is assumed that the good guys and bad guys who randomly appear on the cross slope are half of them, then strictly follow the procedural restriction rule of "no killing in a single day, killing people in two days", and the maximum and worst cumulative effect is only to kill half of all the bad guys and good people along the way, respectively. But if there is only the so-called "only kill the bad guys, not the good guys" entity restriction rule, then the biggest and worst cumulative effect that self-empowering the self-defined enforcers of the entity rules can have is to kill all the bad guys and all the good guys along the way in the name of killing the "bad guys" that the knife bearer thinks.
If we go back and examine Zhang Qing's cross-slope case in depth, we will find that Zhang Qing's standard of killing people who "kill without killing" is actually only a superficial substantive standard, and the fundamental substantive judgment standard is the behavioral utilitarian standard that intelligent and experienced people especially advocate: the choice between killing and not killing is only related to the immediate interest judgment factor that is beneficial to oneself.
Why does Zhang Qing "kill but not kill"? Not because the raw guest meat is good, the familiar customer meat is not good, nor because the familiar customer seems to face greater moral pressure to kill, and the psychology does not go up and down, but because the distant guest is killed and disappeared, there is no relative or friend in the vicinity who cares about his life and death in time, and no one will trace all the way to the cross slope. If the acquaintances of the surrounding villagers disappear, I am afraid that the people with connections in the vicinity will report to the officials at the first time and seal Zhang Qing's black shop. In principle, Zhang Qing does not kill familiar customers, but is still a utilitarian calculation of "rabbits do not eat nest grass, so as not to expose their nests and be ended up", so he will not easily take the huge risk of black shops being officially potd.
When Zhang Qing talked about his own lineage, he actually hinted at this point: "The villain's surname is Zhang, and his name is Qing, who was originally a vegetable garden in the Guangming Temple here. In order to argue about some small things for a while, he killed the monks of the Guangming Temple and set them on fire to make a white ground; later, there was no right head, and the lawsuit did not come to ask. This shows that even if they are familiar customers in the surrounding areas, as long as there is no family member to act as a poor prosecutor, they can kill people and kill their mouths." Moreover, the surrounding villagers are the buyers of licensed human meat steamed buns, and the shrewd Zhang Qing will not kill chickens to get eggs, exhaust the fish, and cut off his own economic resources.
In addition, the two exceptions of not killing Lu Zhishen and Wu Song are also the result of the timely actual utilitarian judgment of the clever Zhang Qing. Lu Zhishen had already been numbed by Sun Erniang and was on the cutting board, just when Zhang Qing came back from selling meat, "seeing that his Zen staff was not vulgar, he hurriedly rescued the antidote and worshiped as a brother." Zhang Qing judged from the sixty-two pounds of Zen staff weapons that Lu Zhishen was not an ordinary head, and it was too wasteful to kill a human meat bun to sell a few small dollars, it was better to quickly save people's lives, and worship with the big hero as a brother, and in the future there would be great use and great reward for himself, so he hurriedly stopped Sun Erniang, who was too short-sighted and only saw fat beef, so as not to spoil the big deal and great utilitarian profit in Zhang Qing's eyes a second later.
As for the story of Zhang Qing not killing Wu Song, it is even more vivid in his character image of being good at utilitarian calculation. At that time, "Wu Song hugged the woman, and put his two hands together, when he was wrapped around his chest; but he looked at the woman with both legs and squeezed her lower half, and pressed them on the woman's body, only to see her slaughtering the pig as if she were going to rise up." Zhang Qing went home, suddenly bumped into a strange man with such an obscene and erotic posture to suppress his wife, he did not angrily kill the general with a fork, but just forked his hand without leaving the square inch, in a defensive posture, begging the good Man to let go of his leg and shouting: "Good Man is angry!" And forgive, the little man has his own words. ”
According to common sense, any normal man who is flesh and blood will not show a calm and begging posture of "having something to say" when he encounters this embarrassing scene. What's more, Zhang Qingben is a person who "fights for some small things for a while, and then sexually kills people", at this critical time when "'uncle' can tolerate 'aunt' can't stand it", why doesn't he kill people "for a while"? I can only say that Zhang Qing is too sleek and smart, and at a glance, I can judge in time that the strange man in front of me is a more powerful character than Lu Zhishen, and can only be a friend, not an enemy. Hurry up and kneel down to worship the brothers is not too late, how can you move the fork and knife because your wife is being eaten tofu, offending this hard-won big man? At this time, those who can't help but kill are ordinary people who have forgivable feelings. Only those who resist not killing and reflexively ask for worship, who are so calm that they are terrible, are the smart people who are really good at calculations in their bones.
Clever people who are scheming always want physical justice as dexterous as snakes in their hands; honest people with one brain will hope that formalistic procedures will be generally and strictly followed. A society with a good state of rule of law is probably a society in which the vast majority of people respect and abide by the rules of procedure like "fools", rather than a society that always advocates the indoctrination of virtue. Therefore, "to say that the procedure is the rule of the honest man also means that the consistent observance of the rules of the procedure can continuously cultivate the honest man".
Then, in the contest between procedural justice and substantive justice, if you trample on procedural rules by emphasizing substantive justice, the original honest people will lose the objective guarantee of the law, and the so-called substantive justice of the law is just a mysterious sponge held in the hands of the power holders. In that way, ordinary honest people, although they have no chance to control and play with the laws of the country, will also be effective in thinking, and learn to break and trample on all kinds of trivial formal rules in daily life in the name of substantive justice. Only a vicious person who has become as clever as others or a more intelligent vicious person can make it easier to survive and settle down.
Therefore, if the rules of legal procedure in one place and one country are either missing or being left empty, this system will continue to cultivate the "viciousness of honest people", so that the original ordinary honest people will become unimaginably vicious at any time and anywhere, giving people a depression of being besieged on all sides and having nowhere to escape. The viciousness of this honest man, which can be seen everywhere, is what Deng Zibin described as "a person who has been spitting on the ground all his life, throwing cigarette butts, queuing up, talking dirty, lying everywhere, running red lights, and forcibly merging..."
These are all the people around us, and even ourselves, the legal people who have been hearing about it for a long time, will also emerge from their bones from time to time this image of "the viciousness of honest people".
The only thing I don't quite understand about the topic of honest people or good people is that Deng Zibin on the one hand believes that "honest people are good people, and the first criterion for good people is to abide by the rules." I rather agree with this view. But he went on to say, "A lifetime of spitting... Forced to merge, he may be a good man, but not yet a civilized man." This seems to be a contradiction in terms, because the ordinary people who behave in the various acts described later happen to be people who have not followed the rules of procedure (form). If you don't follow the rules, you don't meet the "first standard of a good person", how can you be a good person? This requires Deng Zibin to explain to me.
Zhang Qing and his wife on the cross slope, are they good people? This is a substantive question that our modern people need to answer carefully. Shi Nai'an, the author of "Water Margin", seems to describe the two as positive characters, and most of us have always regarded them as heroes and good men. However, according to Deng Zibin's saying that "the first criterion of a good person is to abide by the rules", the judgment conclusion will be completely subverted. We will find that Zhang Qing and his wife are very vicious bad people. Because their behavior does not follow any visible, learnable, and punishable formal rules, as for the "substantive rules" and "substantive justice" that they claim to "only kill bad people, not good people", they are just a beautiful mask for private desires to satisfy, and they are also beautiful words that anyone can claim to themselves. It is not surprising that even satan, the most evil devil, disguises himself as an angel of light with beautiful and beautiful words.
The lack of formal and procedural supervision of physical power in the social system will inevitably cultivate the "malice of honest people" such as Zhang Qing from top to bottom, which concentrates on the "inferiority of Chinese" described by Lu Xun: "Chinese show the fierce beast for the sheep, and the sheep for the fierce beast." Therefore, even if they show the appearance of fierce beasts, they are still cowardly citizens. If this continues, it must be finished. ”
The brave are angry and draw their swords at the stronger; the cowards are angry, but they draw their blades at the weaker. Zhang Qing's arbitrary trampling without sympathy when he sees that he is weaker than himself, and he enslaves his knees without any bottom line when he sees that he is stronger than himself; of course, this is not caused by Mr. Lu Xun's so-called "combination of despotism and servility," but rather the result of abnormal institutional power relations, which is the universal law of mankind. As Deng Zibin said in the book: As long as the substantive power lacks the procedural system for the purpose of protecting human rights and personal dignity as a restriction, and the operation of the substantive power lacks the "obstacle and stumbling block" of procedural justice, then the nature and taste of the society must not be free.
From this point of view, an important feature of a rule-of-man society that runs counter to the liberal rule of law is the excessive emphasis on criminal substantive law and the serious contempt for criminal procedure law. This will inevitably continue to cultivate the "malice of honest people" like Zhang Qing, causing everyone a kind of pain that cannot be prevented. Deng Zibin's last words in the book's epilogue are: "Man's fate is too fragile... People are different in the face of state power, imagine the KGB knocking on a door late at night, and the people in the house have no power to fight back, or even any thought of resistance. Without the protection of procedural law, individuals prosecuted by the state can only be like a dream bubble and can only be discouraged. ”
Figure | Augustine
The famous godfather of the Middle Ages, Augustine, famously said that if the country lost its justice, it would be reduced to a great gang of bandits.
I accepted the core concept of procedural justice advocated by Deng Zibin in the book, so I rephrased this legal maxim as "Once the state loses procedural justice, it will be reduced to a huge cross slope." At the end of this part, Deng Zibin also wrote: "The fate of man is too fragile... Imagine you passing by cross slope, honest zhang qing and his wife invite you into the house for tea, and then you are treated as a bad person and tied up, with no ability to fight back, or even no idea of resistance. If there are no procedural rules, the passers-by who are favored by Zhang Qing of the cross slope are only like four-hoofed licensed goods, let them be slaughtered, and covered with the quarantine blue label of 'good beef' and picked them down the mountain to sell, dead and dead, can only be like a dream bubble. ”
04
The program of "Lustful Guest"
Deng Zibin said in the preface: "I hope this is a good book, not to let the thoughts drown in obscure language, but to use clear language to sort out the ideas of the predecessors, and do not care whether it is academic enough." ”
Therefore, in his book "Principles of Criminal Procedure", he interspersed many classic stories that are beautiful in historical, literary and realistic texts in ancient and modern China and abroad. For example, the story of "Shun killing carp in Hayama" in "The Book of the Five Emperors", the story of Adam and Eve eating the forbidden fruit in "Genesis", the story of King David's murder of Uriah and his wife in "Samuel", the story of the robber raping the wife of a samurai in the "Rashomon" movie, the story of Simpson's killing of his ex-wife in "The Great Trial of the Century", the story of "Quick Broadcast"... He gave a unique and interesting legal interpretation in clear language from the perspective of criminal procedure.
Figure | Rashomon films
As I read and laughed, admiring it, a question suddenly popped into my head: What is the key point of these stories that make the reader feel "good-looking" and the legal interpretation of them "good-looking"?
Reading and reading, thinking and thinking, an answer that was not expected gradually emerged. In particular, reading a passage at the beginning of the epilogue "If There Is No Gust of Wind -'Rashomon' "Trial Transcript" Review", I suddenly became enlightened: "In the dense forest, a robber was taking a nap, and suddenly a gust of wind blew up, bringing the breath of a woman and blowing up a woman's veil." Without that gust of wind, the samurai couple might have walked through safely. ”
After repeatedly pondering and recalling this passage, I seemed to feel a cool breeze, smelled the "breath of a woman", and suddenly determined the answer in my heart: the most "beautiful" point in the whole book is the "beautiful" and "lustful" keywords that are related to the repeated "woman" keywords.
Figure | Rashomon films
In the words of the famous French semiotician Julia Christieva: the root and fundamental manifestation of human cognitive desire (original sin) is the temptation of women, and original sin begins with a woman, this knowledge that makes people leave the ignorant, innocent state of nature, this knowledge that elevates him to purity and freedom through thought, is fundamentally the knowledge of sex.
From time to time, Deng Zibin "suddenly blew a gust of wind somewhere in the book, bringing the breath of a woman, and blowing up the veil of a woman", so that those of us who were originally drowsy and napping in the dense forest were awakened by the clear words and fresh thoughts that suddenly appeared in the text, just like a robber in the wilderness of the mountains and mountains saw a Miss Qianjin who was "gentle and beautiful, sad and far away, thrilling", and the heart of good reading ("lustful") was suddenly eager to move and want to stop.
Of course, the color of the article is not equal to the logic, but there are often a lot of beautiful words and gorgeous words, although it looks very beautiful, the substantive content is precisely unreasonable logic, but the text is too decorative sophistry, just like one of the ancient snakes about two tongues of the source of the beautiful words, which is hugely misleading to the reader. "But everything is illusory, and even if one can speak eloquently, turn good and evil upside down, and say that the dead are said to be alive, the worst things can be justified." The wise men Lao Tzu and Confucius also reminded us: "Believing in words is not beautiful, and beautiful words are not believed." The good do not argue, and the debater is not good. "Clever words, fresh and kind." So we have to be wary and good at reading through the sophistry that looks beautiful.
Deng Zibin had a strong sense of vigilance and defense against this kind of "sophistry of beautiful words." For example, with regard to the purpose of the Criminal Procedure Law, the book opposes the so-called dual purpose of "not only promoting the discovery of the truth in the litigation, but also restricting the litigation to protect human rights", believing that this dual purpose theory seems perfect, and mostly "in the name of dialectics and comprehensiveness, let the power wander between the two purposes, and steal the beam and change the pillar and free the constraints". In the same way, he also opposes the dual mission of procurators who "fight crime and protect the people" put forward by the academic circles, believing that this view of "how to do it and how to do it" is "not only a judicial utopia, but also may make power wander between various purposes, not only ultimately nullifying the purpose of the Criminal Procedure Law to protect the rights of those prosecuted, but also becoming a sophistry tool for the powerful, calmly coping with social doubts and purpose review."
It can be seen that although he uses more beautiful language and selects beautiful material stories in the book, this is only the emphasis on external expression methods, and the ultimate purpose is to explain the reasoning and logic behind the matter as much as possible. Good materials and literary style can be learned, but the core of "reason and logic" is where students should focus. Because only by mastering the theory and logic can it be possible to identify the inducements, traps and sophistry that exist in the "beautiful-looking" discourse routines that are common in academic or practical circles.
Saying that since ancient times, many people's Beautiful Texts are unreasonable and logical, and many people may not believe it. For example, we all read from Song Yu's famous article "Deng disciple lustful", "Deng disciple is a lustful ghost", so "Deng disciple" has always been synonymous with "lustful ghost".
The cause of the incident was that the disciple of Dafu Deng reported in front of the King of Chu that Song Yu was "in good health, with a small mouth, and a lustful nature", hoping that the King of Chu would wear a green hat carefully and not let him enter or leave the harem. When king Chu heard this, he was reasonable and nervous, so he quickly went to Song Yu and questioned him if he was a womanizer. Song Yu denied that he was on the spot, and he gushed a lot of beautiful words, convincing the King of Chu to believe that he was not lustful. There are mainly two major points: One is that there is a beautiful woman next door to his hometown who has seduced him for three years, and he has not yet allowed it. This proves that he is not, and he will not be moved by the inferior beauty in the palace; the second is that he is the real lustful person who recognizes the disciple thief and shouts to catch the thief. Because The wife of the disciple is extremely ugly, but the disciple of the disciple actually likes her so much that he has given birth to five sons. Song Yu asked rhetorically, "Wang Yuchazhi, who is lustful?" It is implied that Deng's disciples "like to see their mother's", and Song Yu "does not move when he sees the most beautiful women in the world", and the two are compared to investigate, and Deng's disciples are the real world's first lustful ghost.
Before this was over, Song Yu also borrowed the mouth of Dr. Qin Zhanghua, who was standing next to him, to prove that he was really not good at sex: "Now that Husband Song Yusheng is called the daughter of his neighbor, he thinks that he is beautiful and foolish; the subject thinks that he is virtuous, and he is inferior to him." And the concubine of Fu Nan Chu Poor Lane, Yan Enough for the Great King? If the ugliness of the subjects, those who have seen it have not dared to cloud it. This passage probably means that Song Yu was actually unmoved by the temptation of the world's first beautiful woman, too noble, comparable to a saint. I think I am an honest person, but I am far from being able to compare with Song Yu. Not to mention that it is the daughter of the owner who takes the initiative to seduce, that is, when she sees the general beauty, she will definitely not be able to hold on to it for a long time and will take the initiative to attack. I think that when I traveled to the remote lands of Chu Country, I read countless flowers... Oh, still don't say it, it's not worth saying these peach blossom things to the king.
Instead, the King of Chu's interest was hung up, and he had to continue. So Qin Zhanghua described how he used poetry and songs to seduce beautiful women all over Kyushu, ambiguous and finally unsuccessful in the pursuit of beauty. The so-called "wife is not as good as a concubine, concubines are not as good as stealing, stealing is not as good as stealing" psychology in men's hearts is depicted to the extreme. Wang listened to it with pleasure, and finally came to a conclusion: I believe that other people are lustful, but Song Yu is definitely not lustful.
From the perspective of a legal person, we may wish to carefully review the "Lustful Endowment of Deng Disciple" and break through the unreasonable and logical sophistry contained in the widely circulated American text.
First of all, if the incident is regarded as a criminal proceeding, although the cause of the case is that Deng Disciple sued Song Yu for "lust", it is necessary to clarify the legal nature of the text "Deng Disciple's Lustful Endowment", and on the whole, it is not a defense statement made by Song Yu as a defendant, but a complaint that Song Yu turned into a counter-claim. "Wang Yichazhi, who is the womanizer?" It is the key term in which the whole text turns to the allegations. In fact, the person who was successfully convicted of the "sin" of "lust" in the end was also a disciple.
Secondly, whether it is regarded as a defense or an accusation, the beautiful words that Song Yu said are untenable in fact and logical, and there are both false facts and logical sophistry.
For Song Yu's first claim, the main problem is that the facts are false or at least unconfirmed. No one has proved whether the "daughter of the owner" in Song Yu's mouth exists, whether it is next door to his house, whether it is a "perfect woman of the generation", whether it is really on the wall to actively seduce him for three years, and whether he is really unmoved and has no relationship. If Song Yu's statement of making up the story is regarded as the defendant's defense, then this defense, in the words of Deng Zibin, is nothing more than a cunning "ghost defense", and the most likely thing is that this is a good story that Song Yu casually made up. Modern courts will not accept "ghost defense" reasons that are not substantiated by evidence, and judges based on free-mind evidence will not be convinced.
For Song Yu's second statement, the main problem is the logical non-relevance. That is to say, "Deng disciple likes his world's first ugly wife", this fact may not be false or basically true, but logically it cannot be deduced that "Deng disciple is the world's first lustful ghost". In other words, logically can not arbitrarily say that "a person likes his world's first ugly wife" must be bad, after all, there is also a possibility: this man is really too incompetent, wants to marry a more beautiful wife and can not, has self-knowledge and can only accept the status quo. But we must not assume that this person is the best person in the world because of the fact that "a man likes his world's first ugly wife". Is this more beautiful than King David, who "has three thousand beautiful ladies in the palace and goes out to hunt wild food"? This is obviously reversing black and white, reversing right and wrong, reversing the curve, no logic, no reason, no common sense.
As some netizens pointed out: "According to Song Yu's logic, if the relationship between Deng Disciple and his ugly wife is not good, it is not lustful; if Deng Disciple abandons his original wife and then goes to find a beautiful crush like the son of the owner, it is even less lustful; like the King of Chu, the harem is beautiful like a cloud, it can only be regarded as pure heart." Is there such a truth in the world? ”
Finally, as a direct interested party in this incident, deng disciple, except for a small sentence at the beginning of the article to lead to the case, the entire "trial process" that followed was actually absent from the whole process. So that the facts of the first defense he said to Song Yu were true or false, and he could not put forward effective cross-examination evidence. Nor can a valid logical rebuttal be made to the reasons for the second allegation. Of course, this is precisely the drawback of criminal proceedings that Deng Zibin wants to describe through the comparison of ancient and modern Chinese and foreign stories, which does not talk about confrontation, reason, cross-examination, and direct rhetoric. For example, in the "Five Emperors Benji", Cang was convicted and executed, "as the protagonist of the story, he was always absent, and in all the dynasties, the high-ranking officials were accused of being a big thing no matter what, but in the scene of killing The Carp, no one heard The carp's defense was heard, and no one spoke for him, including those who strongly recommended him..."
We found that "Deng Disciple's Lustful Endowment" did a good job in circumventing procedural rules, one was to exclude Deng Disciple from the "trial", not to hear The Den Disciple's own defense, and no one to speak for Deng Disciple. The second was to arrange for a doctor like Qin Zhanghua to help Song Yu speak. Carefully study a passage spoken by Qin Zhanghua, that is, use his own life experience of "soaking" various "inferior beauties" to repeat the two sophistry reasons that Song Yu said: On the one hand, I want to imply that the King of Chu, we are all ordinary people, everyone is a bit lustful and loves beautiful women, so Deng Disciple, as an ordinary person, has married the world's first ugly daughter-in-law, and he must be lustful and can't stop, in fact, he is more lustful than anyone else. On the other hand, he also used himself to be so active and lustful in front of the inferior beauty to set off the extraordinary holiness and incomparable nobility of the saint Song Yu sitting in front of the peerless beauty. It can be seen from this that if there is a lack of procedural rules, the so-called "who is lustful, who is not lustful" and such an entity determination conclusion has nothing to do with objective facts and the logic of facts, but can only look at who is silent and who is saying whom.
In short, "Deng Disciple's Lustful Endowment" is a complaint carefully created by Song Yu in beautiful language that qualitatively reverses black and white, which can be called a model text of Chinese sophistry literature. For example, Sima Xiangru, who was highly praised by Mr. Lu Xun, almost completely copied the structure and layout and reason for saying things in his famous article "Beauty Endowment". The same person told Sima Xiang in front of the King of Liang that he was beautiful and lustful, and he also told a story in front of the King of Liang that he was not in a disorderly state, so that the King of Liang and we believed that he was the most essultane, and even the saints of Kong Mo could not be compared.
For this kind of "ghost defense" method, if it is said that "the judge was originally accepted in favor of the defendant's consideration, but the judge no longer accepted the subsequent imitation." On the substantive issue of whether it is good or not, Sima Xiangru obviously blew out a full score of cowhide with beautiful words. But the strange thing is that we believe in such a forged "ghost defense" article again and again, believing that Sima Xiangru is higher than Song Yu's concentration.
Later generations took "Beauty Endowment" as the basic tone, through literature and film and television screenwriters, sima Xiangru was portrayed as a model of emotional obsession, and the marriage between Sima Xiangru and the talented woman Zhuo Wenjun was praised as "the first of China's top ten classic love". However, the people of the country completely ignored the fact that Sima Xiangru was addicted to money, derailed, and abandoned Zhuo Wenjun. This fact is evidenced by the poems of his married husband Zhuo Wenjun, Sima Xiangru, another silent party in the "Beauty Endowment" incident, as well as other historical sources. The point is that in our minds, we are always reluctant to summon these parties and witnesses to court and conduct face-to-face cross-examination of the facts and evidence on the relevant issues.
The author criticizes the ancient American texts "Deng disciple lustful endowment" and "beauty endowment" with the problem of fictitious facts and logical insincerity, but it does not legally deny the self-defense of pseudo-saints and lustful ghosts such as Song Yu and Sima Xiangru, and even the right to sophistry and lie. In fact, at the level of the principle of criminal procedure, it is not the obligation of the defendant to make a truthful confession. The defendant's statements, whether true or false, do not preclude the defendant from having the right to self-justification.
As Deng Zibin pointed out: Even if the defendant is indeed a full-fledged sex ghost, a full-fledged villain, and a full-fledged devil, we must give the devil legal due process rights in consideration of the stable protection of everyone's rights.
Of course, we must also give other parties the same due process rights, ensure that the parties to the case get the same right to express themselves through procedures, and form an open and equal confrontation in the courtroom. Although the adversarial system full of conflict and tension is not without problems, and it does not guarantee that the lies can be uncovered and the so-called objective truth can be discovered, "it cannot be said that the adversarial system is by far the least bad litigation system". And the least bad human system, that is, the best human system.
05
The narcissism of "Narus"
The literary scholar Kidd once described the two narcissistic characters in the myth, "Naroth" and "Adam", who watched the world motionlessly in the paradise, always being a spectator, unable to see their own appearance, not participating, feeling bored and bored. So take a little action, such as going to the river and kissing the water with your head down, a possessive action to break the calm of the water, or grab a branch to click and break it, in this harmonious world, create a little turmoil and disharmony, and then see your beauty from the mirror reflection of the water waves, mark the world with the mark of the human self, and gush out a desire for mutual understanding in your chest.
This is probably the beginning of the imperfect but beautiful works of human beings.
Teacher Su Li once asked a good question: "What is your contribution?" I remembered a story that Su Li exposed himself in "Criticism and Narcissism: Reading and Writing", he said: "The day I finished writing "Sending the Law to the Countryside"... Along the way, I thought that this book would be surpassed by at least no Chinese scholar in ten years, and foreigners would not be able to write this book in a lifetime. This revealed a strong narcissism.
Although "narcissism is a state of satisfaction presented by being very successful in not knowing oneself", narcissism is not entirely a shortcoming in terms of the production of knowledge. Sometimes the author lacks a strong narcissistic plot, and the work is unlikely to be good. Teacher Su Li's book, although logically there is often a suspicion of not talking about merits and demerits, is also very good-looking, which is beyond doubt, probably the reason is the same.
It is far better for the author to be seriously narcissistic than to pretend not to be narcissistic. Chen Danqing tells several successful narcissistic or unsuccessful narcissistic anecdotes in the art world in "Regression Collection". When the young Dalí first visited Picasso, he said: "Sir, I arrived in Paris this morning, I did not go to the Louvre, I came to see you first." Picasso blurted out, "You did the right thing." Van Gauw was unlucky before he died, but in a letter to his brother he said: "One day the whole world will pronounce my name in different pronunciations. At the beginning of the 20th century, it is said that one of the "blind painters" scattered in Montmartre, Paris, had a brother who got up early every morning and stuck his head out of the attic skylight and shouted into the street: "I am a genius, I am a genius." Chen Danqing therefore said: "Artists should see themselves as such. ”
I don't know how Deng Zibin, who wrote Principles of Criminal Procedure, would answer the good question "What is your contribution?" Would he be narcissistic and say, "The day I finished writing Principles of Criminal Procedure... Along the way, I thought that this book would be surpassed by at least no Chinese scholar in a hundred years, and foreigners would not be able to write this book in a lifetime. ”
Taking a step back, Deng Zibin's monograph does not have any unique creative contributions, but only tries to measure and calibrate the connection, direction, path and distance between the reality and the ideal of criminal procedure. The purpose is nothing more than to awaken the memories that Chinese legal people once had, are now unfamiliar with, or even forgotten— the "ideal benchmark" of the rule of law in criminal procedure. As a criminal law scholar, Deng Zibin repeatedly emphasized a "old" or "traditional" or "recognized" concept of the rule of law that he did not create throughout the book: "Procedure is the last bastion of freedom, without procedure, the rule of law is nothing." ...... Only by quoting the universally recognized concept of procedure and its rules, and practicing it in good faith, is the only way to move towards litigation civilization."
Deng Zibin studied it for more than three years, and finally admitted that it really took courage to present it to us as such a "recognized standard answer" with no creativity. For example, when Deng Zibin talked about the professional ethics of defense lawyers, he agreed with and quoted the views of a Chinese scholar whom I had never heard of: "As for the defender's legitimate or improper attacks on the plaintiff in the nature of his defense, he is trying to make real discoveries in favor of the defendant, and the defender has no obligation to publish anything that is unfavorable to the defendant, and the defender also has a moral righteousness for the defendant to preserve secrets on his behalf." If the court wants the defender to prove facts against the accused, he may also refuse to testify. ”
Then Deng Zibin gave a comment: "This is the view that Chinese scholars already had 90 years ago. This comment seemed calm, but I read it with a deeper sense of pathos. We can say that the information quoted is old enough. But conversely, it can be said that this view is now "minority" enough to be "new" enough. We once had something good, but it has been forcibly erased from memory, and when we see it again many years later, it is like discovering a new continent.
This reminds me of Chesterton's efforts to maintain the traditional concept of human consensus, to oppose the so-called new ideas, and to invent a humorous joke: the protagonist is an Englishman, setting sail from his hometown, but slightly miscalculating, and a few years later landing on a "new island" in the South Pacific, excited, in fact, it is just England. After telling the joke, he commented on his book "Back to Tradition": "If this book is a joke, the protagonist of the joke is none other than me." I was the ridiculous man, with great courage, only to discover things that had been discovered by previous generations. ”
I think it is appropriate to send this comment to Deng Zibin's Principles of Criminal Procedure. This is not to satirize that Deng Zibin's book does not have innovative views, but to express the same sympathetic consensus on the litigation system as he does: leaving the tradition of litigation civilization precipitated by the lessons of hundreds of thousands of years of human history, instead looking for a variety of local knowledge and characteristic innovative views, I am afraid that most of them are the traps and mistakes that have been proven long ago. "Trap after trap set by mistake and exaggeration, and it is very simple to drop any trap. There can be an infinite number of angles for a person to fall, but there is only one angle for people to stand. "So it's important to find the only benchmark and angle that can stand."
Between the fixed consensus yardstick of the rule of law and the diverse reality, if the distance is too far, we will have a habitual wrong psychology, simply completely forget about the distant other places, and there is an "ideal benchmark". In turn, the ideal idea is killed, and the current situation becomes the highest ideal, and everything that exists is the most reasonable. Therefore, Deng Zibin stressed: "We should strive to meet international standards, and then talk about practical rationality, not the other way around." In the field of criminal procedure, we should not admit that reality is reasonable, let alone mistakenly think that we have any local resources, but should be fully aligned with the world's advanced procedural civilization and unswervingly believe that "the history of freedom is to a large extent the history of procedure". ”
Looking at our legal era, it is precisely another legal era that talks more about the practical complexity and particularity of "crossing the river by feeling the stones" and avoids talking about the ideal picture of building bridges and flying according to the universal scientific rules and the yardstick of civilization. The criminal justice system has changed back and forth, and it just doesn't know where the right benchmark is, which is a terrible thing. As for the theory of China's national conditions, the theory of Chinese characteristics, and the theory of Chinese locality, not only the so-called intellectuals who have read a little bit of books have heard and heard by word of mouth every day, but also the big aunt of the vegetable market who can't read a basket of big characters, and using this set of sophistry words to point out the Jiangshan is also the head of the Road, and everyone in the streets and alleys can be called a philosopher in this regard. However, the "international standards" and "yardsticks of institutional civilization" of the concepts and models of criminal procedure discussed by Deng Zibin in the book are unfamiliar to the Chinese people since childhood, and most people have hardly heard of them. Even if a few people occasionally catch a glimpse in a lonely corner, it is probably used as an example of a negative teaching material, only as a target for great criticism.
Forgive me for saying that the rule of law rule system of criminal procedure: "procedural justice is better than substantive justice" is generally heard by many people, and those who really understand are few, and those who shout with great fanfare are even fewer, and Deng Zibin is one of them. Nowadays, we like to talk too much about the local "national essence" of the rule of law culture, as Mr. Lu Xun said: "Even if it is nameless and swollen, if it is born on Chinese, it will be 'red and swollen, as bright as a peach blossom; when it festers, it is as beautiful as cheese." 'Where the essence of the country lies, it is wonderful. ”
As a foreign concept, the concept of procedural rule of law is still so lonely and depressed in the legal circles on the mainland, let alone any practical experience in criminal justice on the mainland, and there is no successful experience or the lesson of failure.
Therefore, before we have accepted the concept of procedural rule of law, Whether the book "Principles of Criminal Procedure" can be surpassed by Chinese scholars in ten or a hundred years, I really don't know; ten or a hundred years later, there will be no one to read, I don't know. But one thing I dare say: this book, which I enjoy reading today, is enough.
Three years ago, I read a self-statement by Deng Zibin: "I once said that criminal law hurts the body and mind, mainly stemming from a strong double pessimism: in practice, the principle of criminal law has been repeatedly calamified and precarious; in theory, no criminal theory system can resist the 'substantive justice at all costs'... I am already the age of knowing the destiny of heaven, and when I am still in progress, I feel that there are many hardships in the day, especially for academic creation, it is simply not much. This is a fact that needs not be avoided, the only thing that can be done is to cherish every opportunity to write, and in the grass of the book written in the house, look forward to the early arrival of Shen Li Fugua's idleness", it seems to imply that after writing the last book, and then planning to close the pen and retire as soon as possible.
Three years later, he wrote a book on his back, and sure enough, he wrote a painting. Did he want to learn from the great painter Duchamp, and after painting The Who Walked Down the Stairs, he threw away the pen, threw it idle, and just cared about playing idle chess with the street boss? A good painter bumped into him, unwillingly, and asked Mr. Duchamp, "Are you really not painting anymore?" He replied casually and resolutely: "You don't owe society a painting." ”
Brother Deng Zibin, if talking about criminal law hurts the body and mind, then talking about the criminal procedure law is not even more hurtful to the body and mind? Someone once joked that without criminal law, the world might run better. Therefore, I advise the king to focus on physical and mental health, and it is better to read more beautiful articles such as "Beauty Endowment" when there is time, although the story is false, but the beauty-like words and literary style can nourish the eyes and the heart. Or meet in a dense forest for a nap, wait for the cold wind to blow, and go down the mountain to drink Dukang. After all, you don't owe society a good book!