Chinese wisdom embodied in ancient Chinese legal culture

The history of China's legal culture for more than 5,000 years is full of the political wisdom and legal wisdom of the ancient sages, which deserves our careful study and sorting out in order to connect with the legal culture of the new era and promote the creative transformation and innovative development of traditional legal culture.

Sort out advanced perspectives in the origins of Chinese law

The origin of law is the first chapter of the study of the history of the Chinese legal system, and it is also the first lecture of Marxist jurisprudence. In ancient Chinese literature, there is a divine will as the driving force for legislation, the so-called "heaven is guilty, five punishments and five uses"; There are also military laws required for war as prototypes of laws. However, what best embodies the Marxist view of law is "making punishment and making law by making law." According to the Marxist view, law has its origins in class differentiation and class struggle.

There is a convergence between the punishment and the Marxist theory of the origin of law. Chi You was the head of the "three seedlings" in the lower reaches of the Yangtze River basin, and he saw that there were greedy people and gluttonous people fighting each other, and the so-called "people are clever, and nothing is in the faith" (Shangshu Lü Punishment). In order to control the struggle between classes, Chi You got rid of the shackles of religion, and "Miao Min Fu used the spirit to make punishment, but only the punishment of the five abuses" ("Shangshu Lü Punishment"), using the punishment of the five abuses, the execution, the starling, the tattoo, and the great rebellion, distributed the surplus of production according to law, and quelled the struggle. The theory of punishment is a representative theory in ancient China, which excludes religious superstition, bases itself on reality, and uses law to determine the different rights and obligations enjoyed by different classes and classes. Although the "Three Miaos" were defeated by the Yellow Emperor and exiled to various places, the Yellow Emperor exterminated his clan and used his punishment. Chi You's torture showed his ingenuity and wisdom, so much so that the framework of the five punishments he created continued to change significantly until the Han Dynasty.

The first Gaotao to assist the government with virtue

Gaotao was also a jurist, and as Shun's courtier, he used the law to quell the rebellion, and elevated his experience of breaking prison to law, and the legal principles of "fainting, ink, thief, and killing, Gaotao's punishment" ("Zuo Chuan, Fourteen Years of Zhaogong") and "rather than kill, it is better to lose" (Shangshu Da Yumo). The ancient book says: "Confucius lowered the classics, and Gao made the law", all immortal saints and sages. Gaotao believed that governing the country is important to nine governments, and governing the nine governments requires people with nine virtues, that is, "broad and chestnut, soft and standing, willing and respectful, chaotic and respectful, disturbed and persevering, straight and gentle, simple and incorruptible, rigid and stuffed, strong and righteous" (Shangshu Gao Taomu). Although Gaotao died early, Gaotao's "people with nine virtues to assist government" was popular among future generations. Confucius said: "For the sake of government with virtue, such as the North Chen, dwells where the stars share (Analects of Politics)."

After Zhou destroyed the Shang, the Duke of Zhou proposed Mingde prudent punishment, and during the Western Han Dynasty, Mingde prudent punishment was changed to the main punishment of virtue, further clarifying the position and mutual relationship of German punishment. In the Tang Dynasty, the "Tang Law Shun Discussion" once again clarified the original relationship between "morality is the foundation of politics and religion, and punishment is for the use of politics and religion", and uses "dawn and autumn" as a metaphor for the close relationship and eternal operation of moral punishment.

The first person to promulgate the written law - the child

Zisan, Zheng Guoren, a representative of the famous school, the gist of the famous master's "control the name and responsibility, join the army without loss" and "the name is different, the etiquette is also different". He presided over the New Deal in Zhengguo, advocating "lawlessness before kings, not propriety", and tried to break the old system of Zhengguo. Before carrying out large-scale social reforms, Zisan's superstition of the heavenly way was broken. According to the records of the seventeenth and eighteenth years of the Duke of Zhao in the "Zuo Chuan", Zheng Guoxing's diviner Pi Zao predicted that a fire would break out in Zheng, and people advised Zishan to use jade to sacrifice according to Pei Zao's words to avoid fire, and Zishan replied solemnly: "Heaven is far away, humane, beyond reach, how can you know?" Thus eliminating the people's superstition of astrologers, which played a very important guiding role in the social reform after the birth. For example, after Zishan came to power, the reform of the field system of Zuoqiu Fu was implemented, which was an extremely important reform of universal significance at that time. Through the reform of the land system, the private land system was established, and the economic basis of slavery was broken; The city and the countryside are distinguished, the upper and lower respects and inferiority have their own responsibilities, the fields and soil are surrounded by ditches, and the houses and cultivated land can adapt to each other. The social reforms during Zisan's administration were supported by the people and a small number of ministers, who were able to trust him, listen to him, and be close to him. But there are also a few extravagant people who not only oppose him, but even try to kill him. After one year in politics, public opinion recited the saying: "Take my clothes and take my fields." Whoever kills the child, I will do it! Three years later, with the achievements of the reform, the reaction of the people is very different from that of three years ago, and the recitation is: "I have children, and the children produce them." I have fields, and my sons produce them. If a child dies, who will be the heir? "In the era of slavery, the law was not public, which made it easy for the nobles to arbitrarily judge and punish them. In the process of carrying out social reform, Zisan, influenced by Legalist thought, must break the old system of Zhengguo's secret law and promulgate a new penal book, so that the people can understand the law and use the law to protect their rights and interests. In 536 BC, Zishan finally "minted the penal book in the ding" and announced the written law to the public. This is one of the most important and accomplished elements of the reform of children. It can be said that the child production set a precedent for the publication of written law. It is no coincidence that after the promulgation of the written law of Zisan, other countries, including the Jin state, which opposed the casting of the letter of punishment by Zisan, also promulgated written laws.

According to the Marxist viewpoint, society is developing, advancing, and constantly replacing old things with new things. Zisan's statement of "I am also to save the world", the publication of the written law precisely means that what he did to meet the needs of the progress of social development, so the child production was the first to appear, and countries successively promulgated written laws. This means that the new is irresistible, which is also the Marxist view.

Propriety and punishment, comprehensive governance of the country

After the Duke of Zhou destroyed the merchants, in the face of the grim situation at home and abroad, he carried out a series of activities such as counterinsurgency and chaos. "Shangshu Da Biography" said, "The regency of the Duke of Zhou, one year to rescue chaos, two years to conquer Yin, three years to practice dying, four years to build a houwei, five years to become a week, six years to make ceremonies and music, and seven years to become a king." It can be seen that the Duke of Zhou took governance as the precursor to form a national system and build a strong Zhou Dynasty on the basis of comprehensive governance. "Li Ji Leji" once said, "Propriety is to preach its will, pleasure is to be harmonious with its voice, government is to act in one's way, and punishment is to prevent its adultery." The penal government of propriety is also extremely one, so it is the same as the people's hearts and out of the way of governance. "Although the government and punishment of etiquette belong to the various components of the superstructure, they are commanded by etiquette. Zhou Nei Shi Guo said: "Rites, the dry of the country; Salute, salute public opinion also. If it is disrespectful, it is not polite; If the etiquette is not done, then it will go up and down, why live forever? Confucius also said: "Honor the government first, and pay tribute to the foundation of government." "Propriety is the political standard of national governance. Only when there is courtesy can national politics be on the right track; Rude, national politics is bound to be chaotic. "Morality and righteousness, impoliteness cannot be achieved; Teach the right thing and be impolite; Separate disputes and lawsuits, and incivility is not resolved; Fathers and sons and brothers of the monarch are indecent; Eunuch scholars, impolite and unkind; Ban Chao governs the army, and officials practice the law, and it is not possible to be impolite and majestic; Prayers and sacrifices, offering to ghosts and gods, and disrespectful and dishonest (Jia Yi: New Book). It can be seen that the content of the ceremony starts from "the order of the noble and lowly court of the prince and court, and the lower Li Shu Che Yu clothes, palace food, marriage and funeral sacrifices, things are appropriate, and things have festivals."

Rites are also combined with music, forming a culture of etiquette. Ancient music and politics are connected, and the music of the Zhou Dynasty cannot be simply understood as music, it is a concrete expression of ancient culture. For example, the three hundred poems are ancient songs; "Ode" is temple music; "Ya" is the right tune, that is, the music of the court; "Daya" is ancient music, and "Xiaoya" is new music. The disciples of Confucius all praised Yao Shun's Yao Shun and opposed Wei Jin's new voice, that is, popular music, and denounced it as a traitor.

The Zhou Dynasty used the five punishments of Mo, Qiao, Gong, and Dabi since Xia Shang, which were combined into 3,000 articles. The Zhou Dynasty learned the lessons of merchants who tortured indiscriminately and killed innocent people to lead to the death of the country, and reorganized the relationship between rites and punishments, taking rites and education as the foundation and punishment as the use. "Where the rites go, the punishment is taken, and the disrespects are punished, and those who are in the appearance are also ("Hou Hanshu Chen Pet Biography"). "Zhou has disorderly government, and he makes nine punishments", and the nine punishments "are called the five punishments of the right punishment, and the flow, redemption, whipping, and pouncement." In order to implement Mingde's proposition of prudent punishment, the Duke of Zhou emphasized the use of patriarchal law, praising Sikou Sugong for "using patriarchal law by punishment" and admonishing Uncle Kang, who was about to become Sikou, to follow the example of Su Gong. Confucius also attached great importance to the use of patriarchal law in the penal law, once saying: "If the punishment is not meted out, the people will not be caught off guard."

As for the relationship between propriety and government, it is even closer. Rites are the masters of the state, and the chapter "Shangshu Lizheng" is a book written by Zhou Xuan admonishing King Cheng how to use people for administration, the main content of which is to set up officials and establish political power institutions. In the Zhou Dynasty, there were the king's privy seals, administrative officials, affairs officials who handled princely states, and affairs officials who handled frontiers... This shows that the organization of affairs established at the beginning of the week is very tight. On the basis of the "Lizheng" chapter, some scholars during the Warring States period compiled the "Rite of Zhou", which became an ideal administrative code for ancient countries on the mainland, and became a Confucian classic after the Han Dynasty.

It can be seen that in order to establish a solid rule of the Zhou Dynasty, Zhou Gong painstakingly thought about the strategy of governing the country, and formed a comprehensive plan for the comprehensive governance of the country by ritual and criminal administration. It can be used alone or in combination. Three thousand years ago, the plan to be able to design a comprehensive governance of ritual and music and political punishment indeed showed the superb political wisdom and legal wisdom of the ancients, and it is worth carefully studying to make it fit with contemporary society and better demonstrate its scientific nature.

"Rite of Zhou" - the ancient Chinese canon of statecraft

"Rites of Zhou" was written in the hands of the two Han Confucianists, and is also the opening work of Confucian rites, the content of "Rites of Zhou" is grand, all state institutions, political and legal culture, education, ritual music, military punishment, taxation, meals, clothing, sleeping temples and horses, agricultural and commercial medicine, craftsmanship, and various famous objects, canons, everything, can be called the ancient Chinese "governing the country".

First, establish a unified state system centered on the king. The "Rites of Zhou" contains in the capital of each article that "only the king establishes the country, justifies the right position, and sets up officials and posts to think that the people are extreme." "Only the king established the country" shows that the king and the state are one and the master of the state; "Discerning the right position, the body country and the wilderness" explains that the king resides in the center and controls the four directions, just as "Han Feizi Yangquan" said when arguing the king's position of power outside the center, "Things are in the four directions, in the center, the saints are in charge, and the four sides are effective." But the king, who holds the highest power in the central government, also needs to set up officials and separate duties, govern the country, and manage the people.

Second, there are six official functions of heaven, earth, spring, summer, autumn, and winter, each of which is in charge of government affairs according to the "Six Classics" prescribed by law. Tenguan Tsukasai, the head of the six officials, "made his subordinates take charge of the state, and the kingdom of Jun Bang was given to the king ("Zhou Li Tianguan Tsukazai"). The so-called "state rule", that is, the rule of the Six Classics, "to the state of the state, to the government of the government, to the rule of the people." "Di Li Shitu," so that his subordinates will take charge of the state religion, so as to support the king to disturb the state ("Zhou Li Di Juan Situ"). The so-called "state religion", that is, the canon of the Six Classics, "to the state of Anbang, to the office of the instructors, to disturb the people." "Chunguan Zongbo," made his subordinates take charge of the state rites, to support the king and the state ("Zhou Li Chunguan Zongbo"). The so-called "state rites", that is, the rites of the Six Classics, "to reconcile the state, to unify the officials, and to harmonize the people." "Xia Lawsuit Sima," made Shuai his subordinate in charge of state government, and supported Wang Pingbangguo ("Zhou Li Xia Lawsuit Sima"). The so-called "state government", that is, the political code of the Six Classics, "to level the state, to correct hundreds of officials, and to equal all the people." "Qiu Lian Si Kou," made Shuai his subordinates take charge of the state ban, in order to support the king to punish the state ("Zhou Li Qiu Juan Si Kou"). The so-called "state ban", that is, the penal code of the "Six Classics", "to criticize the state, to punish hundreds of officials, to correct the people ("state rule", "state religion", "state rite", "state government" and "state ban" are all found in "Zhou Li Tianguan Tsukazai"). "The vacancy of the Winter Official Division will be filled with the Han "Examination Record".

"Rites of Zhou" uses the famous officials of heaven and earth and the four seasons of spring, summer, autumn and winter, and expresses the concept of the unity of heaven and man with the naturalistic "elephant sky" color in the pre-Qin period. The provisions on officials in the "Zhou Li" formed a huge system, consisting of both officers and subordinates, divided into posts and posts, with a total of tens of thousands. In distant antiquity, it was very rare to be able to form such a clear and huge system. The six officials specified in the "Rite of Zhou" became the historical source of the six central ministries (officials, households, rites, soldiers, punishments, and workers) after the Tang Dynasty, and the affairs in charge of the six ministries were generally similar to the six officials in the "Rites of Zhou". It continued until the late Qing Dynasty official reform.

Third, the Heavenly Official Tsukasa Zai examines the achievements of hundreds of officials according to the "Six Classics." The procedure for the inspection is that at the end of each year, "let each of the hundred official offices be governed properly, receive its meetings, and listen to its affairs", that is, hold a plan, and every three years to test the hundred officials, the so-called "great plan", in order to depose Sheng ("Zhou Li Tianguan Tsukazai"), "if it is wrong, the state will have a permanent punishment ("Zhou Li Di Lawyer Situ"). ”

Fourth, divide the grass-roots organizations such as townships, sui, and li, with township officials responsible for administering government affairs, civil affairs, and litigation, and even more indoctrinating with the 12 religions. Second, if the Yang rite is used to teach the way, the people will not fight. If you teach relatives with yin rites, the people will not complain. If the four are taught with music, the people are not well-behaved. If you distinguish by ceremony, the people will not cross. If the people teach peace with customs, the people will not steal. In the seven days of criminal education, the people are not violent. If you take an oath, the people will not slack. When the festival is celebrated, the people are content. If the world is taught and capable, the people will not fail in their duties. One out of ten is to make a knighthood with merit, and the people are prudent. Two times out of ten, if mediocrity is used to control Lu, the people will prosper. In addition, the magistrate is also responsible for managing the marriages of the residents under his jurisdiction, and the mediator is in charge of the judgment of all the people. All men and women who have become famous by themselves are famous in the year, month and day. Let the man marry at thirty and the woman at twenty. Whoever marries a wife and a son is written. In the middle of spring, the order will be men and women, so the time is also. The runner can't help it. Whoever fails to use the order without reason shall be punished. Whoever marries a son and a wife will not earn more than five taels of money. The prohibition of relocation and dowry, the conspiracy of men and women, is subject to the society of victory. It is attached to the torturer and attributed to the Shi ("Zhou Li Di Lawyer Situ"). ”

Fifth, the Rites of Zhou stipulates a series of legal systems. First, the legislative principles of the "Three Kingdoms and Three Codes". "First, the punishment of the new country is light; Second, the Chinese canon is used in the country of punishment; Third, the country uses heavy punishment. "This is the yardstick for determining the leniency of legislation by distinguishing different political situations. At the beginning of the Ming Dynasty, officials were strictly administered, and Taizu Zhu Yuanzhang said, "I rule the country in chaos, and the punishment must be severe." This shows the longevity of its impact. Second, pay attention to legal propaganda, and every year in the first month, special officials are sent to hang the law like Wei or Zhenmuduo on the way, to publicize the law, saying that "those who do not use the law, the state has a permanent punishment", so that the people are afraid of punishment and abide by the law. Third, listen to prison lawsuits in five voices, "one is to listen to words, two is to listen to colors, three is to listen to qi, four is to listen to ears, and five is to listen." Zheng Xuan of the Eastern Han Dynasty commented as follows: "If you look at his words, if you are not straight, you are annoyed; Look at its color, if it is not straight, it will be clear; Look at its appearance, if it is not straight, it will breathe; Watch and listen, not straightforward, confused; Look at his eyes, if he is not straight, he will die. "This is the earliest application of criminal psychology in the administration of justice. Fourth, define the difference between criminal proceedings and civil proceedings. "Zhou Li" proposed "banning civil lawsuits with two doses" and "banning civil prisons with two doses", and Zheng Xuan noted: "Lawsuits are those who sue each other with goods; Prison refers to those who accuse each other. He also said that "fighting for crimes is called imprisonment" and "fighting for wealth is known as litigation." Fifth, it stipulates the procedure for litigation. Both parties to the litigation, namely the "two parties", must appear in court, and the litigants must pay "bundles" and "jun gold", which is equivalent to today's litigation fees. The evidence of the civil action is based on the deed, "Whoever sues with wealth is justified by Fu Bie Jiao." "High-ranking aristocratic officials can represent their family members in court, and the so-called "every husband and wife do not bow to prison lawsuits." Before the verdict, it is necessary to listen to the opinions of the courtiers, the officials, and the people, and the so-called "three stabbing to cut off the people's prison lawsuits: one is to inform the ministers, the second is to inform the people, and the third is to inform the people, listen to the people's assassination, and inflict the punishment of the upper and lower ones ("Zhou Li Qiu Lawsuit Si Kou"). "With the exception of the three assassinations, the above procedures were invoked by subsequent judicial authorities. The series of legal systems stipulated in the above-mentioned "Zhou Li" fully shows how valuable the legal civilization reflected in it is!

The Rite of Zhou fully demonstrates the wisdom and ideals of the ancient sages. These wisdoms and ideals come from the experience provided by the system design, institutional setup, official management, and judicial practice of some countries in previous countries, which have rich experience in the understanding of the author of "Zhou Li", and sublimate them on the basis of existing prototypes, forming an immortal national governance canon. The blueprint for governing the country with wide influence designed by "Zhou Li" indisputably shows the civilization of the Chinese legal system, which plays a leading role for future generations, while leaving endless room for creativity. The legal history after the Han Dynasty is not only the inheritance of the "Rite of Zhou", but also the development of the "Rite of Zhou". The "Six Classics of Tang" is modeled after the "Rites of Zhou", with the purpose of official officials, the following compilation and office have become an administrative code of the Tang generation. The most complete administrative code in ancient China, the Guangxu Dynasty's "Great Qing Huidian", is also clearly recorded in the "Ordinary Cases": "The meeting is important, with officials in command, and subordinate to officials, such as "Saturday Official" and "Tang Liudian".

(The author is Zhang Jinfan, tenured professor of China University of Political Science and Law and honorary dean of the Institute of Legal History)

Source: Procuratorial Daily Theory Edition