He Qinhua.
**The General Secretary pointed out: "The Chinese legal system has a long history, and the excellent traditional Chinese legal culture contains rich ideas on the rule of law and profound political wisdom, which is a treasure of Chinese culture. It is necessary to actively promote the creative transformation and innovative development of China's excellent traditional legal culture, give China's rule of law civilization a new connotation of the times, and stimulate vigorous vitality. "* The important exposition of the General Secretary has pointed out the direction for us to inherit the excellent traditional Chinese legal culture. In the new era and new journey, we must adhere to the guidance of the best rule of law thought and the best cultural thought, deeply study the rich rule of law thought contained in the excellent traditional Chinese legal culture, transform it in accordance with the requirements of the new era, absorb nutrition, choose the good and use it, so that the precious spiritual heritage accumulated by the Chinese rule of law civilization for thousands of years will be revitalized, and the rule of law power will be added to the construction of the modern civilization of the Chinese nation.
The endogenous results of China's historical development.
Order and rules are the foundation of civilization and an important symbol of civilization. The birth, emergence and development of the rich ideas on the rule of law contained in the excellent traditional legal culture of China is the inevitable result of the profound changes and adaptation of Chinese civilization to historical evolution. During the third dynasty of the Xia and Shang dynasties, the development of Chinese civilization accelerated, from the era of the ancient kingdom to the era of dynasties, with the emergence of a wide area of royal state, the intensification of social division of labor and social differentiation, and the more complex governance of the country. As the power of the state continued to strengthen, penalties began to be enacted to consolidate the ruling order. "Zuo Biography" contains: "Xia has a chaotic government, and makes "Yu Punishment", Shang has a chaotic government, and makes "Tang Punishment", and Zhou has a chaotic government, and makes "Nine Punishments". "Hanshu Criminal Law Chronicle" cloud: "After Yu Chengyao and Shun, he was punished by virtue and decay. Those who follow the Tang and Wu lines are inferior to Tang and Yu. "The development of society has made penal punishment necessary. In the Spring and Autumn Period and the Warring States Period, the Zichuan was cast in Zheng and the Book of Laws was written in Wei, and a self-contained written code appeared in China. The idea of the rule of law contained in China's excellent traditional legal culture is born on the basis of this increasingly rich legal practice.
Legalists represented by Guan Zhong, Deng Xi, Shang Ying, Han Fei, etc., emphasized the fundamental position of law in national governance. Different from the proposition that relying on morality to govern the people is the ideal politics, Legalists believe that in order to govern the country well, it is necessary to take the law as the foundation, formulate a code of conduct that reflects the interests of the state and everyone abides by, as the basis for rewards and punishments, and the standard for governing the country. Shang Ying said: "The law is the life of the people, and it is the foundation of governance, so prepare the people." Han Fei believes: "The law is for the country, and if it is light, it will not be successful, and the name will not be successful", "If the law is clear, there will be no danger of chaos inside, and there will be no disaster of death and captivity." Therefore, those who survive the country are not benevolent and righteous." Legalists pay special attention to legislative issues, and advocate that laws should be formulated in accordance with the principles of utilitarianism, stability, timely adaptation, humane feelings, conciseness and thoroughness, and generous rewards and heavy punishments. At the same time, it is also necessary to act strictly according to law, establish the authority of the law, and not show favoritism, otherwise it will bring about even greater chaos. Deng Xi advocated that "matters should be judged by the law, and the way of the country is also", and proposed that "legislation is done for personal gain, and fighting with the law is more chaotic than impossible." Legalists advocate the rule of law because it has many advantages over advocating benevolence and righteousness, and being clever and wise. For example, the law is objective, impartial, and embodies the principle of things, so it can be applied to the world. Han Fei proposed: "Because of the reason of things, it will be done without hard work", "Interpret spells and rule by heart, Yao cannot be a country; Go to the rules and be delusional, Xi Zhong can't be a round", "Interpret the rules and let it be clever, explain the law and let it be wise, and the way of confusion is also". The law also establishes standards for rewards and punishments, so that people do not dare to violate the law and prohibit "pursuing their own personal interests," and earnestly safeguard the interests of the state, so that order is based on the law and individuals have to abide by it. Han Fei said: "The rule of the strong is born in the law, and the weak and chaotic are born in A", "The rule of the sage is also inherently the way that people have to love me, and they do not rely on others to love me", "I can't be bullied, and I can't be bullied" "If he is clear, he will be loyal to the ministers; If the punishment is necessary, the evil minister will stop".
With the increasing development of Chinese civilization, the Confucian ideas of Mingde and prudent punishment, Taoism's rule of inaction, Mohist's love and non-aggression, and Legalism's rule of law have influenced each other, and different ideas and views have exchanged and integrated with each other, bringing together the rich ideas of the rule of law in the excellent traditional Chinese legal culture, creating a magnificent and vibrant history of rule of law thought, and providing theoretical support for the continuous development and maturity of the Chinese legal system.
It is characterized by richness, nationality and profundity.
In-depth research on the rule of law thought contained in the excellent traditional Chinese legal culture should not only be specific and subtle, but also sort out important historical figures and their ideological views, closely analyze and explain the historical background, political environment, social conditions, and institutional achievements of the development of the Chinese legal system at that time, and explore from the aspects of spiritual core, theoretical contributions, and significance of the times; It is also necessary to grasp the overall situation and study its development context, internal logic, overall characteristics, and other issues. From a macro point of view, the idea of the rule of law contained in China's excellent traditional legal culture has the characteristics of richness, nationality, and profundity.
The content is rich and diverse. The content of the rule of law ideology contained in the excellent traditional legal culture of China is very rich, involving many aspects such as rule of law theory, legislative technology, application of law, criminal policy, etc., and different views are contending with each other and colorful. Among them, the strategy of governing the country with rites and punishments, the people-oriented concept of the people's foundation and the solid state, the value pursuit of no litigation in the world and the value of harmony, the prudent punishment idea of virtue and punishment, the equality concept of using the law to judge the crime and punish the crime, and the principle of compassionate punishment to protect the widows, widows, and loneliness, the elderly, children, women and the disabled, etc., are all representative ideologies and concepts, demonstrating the wisdom of China's excellent traditional legal culture. For example, it is advocated that morality should be punished and punished, because if the people are governed by punishment, the people will not have a sense of shame in their hearts, but if they govern the people with moral education, the people will have a sense of shame from their hearts and take the initiative to correct their behaviorEmphasizing virtue and prudent punishment means that rulers should not only be virtuous, self-restraint and strict self-discipline with virtue, but also use virtue to educate the people, guide the people to goodness, and avoid abuse of punishment. Otherwise, not only will we not be able to curb crime, but we will lose the support of the people and shake the foundation of our rule because of tyranny and unkindness.
Show national characteristics. The idea of the rule of law contained in the excellent traditional legal culture of China has a strong national cultural accumulation, embodies the spirit and wisdom of the Chinese nation, and embodies the unique values, national outlook, rule of law outlook, and power outlook of the Chinese nation. For example, Chinese culture attaches great importance to the value of the family, pays attention to the maintenance of family ethics such as filial piety and benevolence, and regards the ethical order in the family as the foundation of the country's political order. In terms of justice, it attaches importance to the maintenance of family ethics and advocates criminal sanctions for unfilial acts.
The thought is profound. The idea of the rule of law contained in the excellent traditional Chinese legal culture has deeply pondered the reasons for the implementation of the rule of law, the function of the rule of law, the necessary conditions for the implementation of the rule of law, and other theoretical questions about the rule of law, and has made creative answers. For example, emphasizing that human nature is "good and evil", and dare to take any risk in order to seek advantage and avoid harm, "so where the benefit is, although there are thousands of mountains, everything is on it;Beneath the depths, everything is pervasive". The law enables people to "be rewarded for their merits" and "punished for their crimes," and "those who are courtiers are afraid of punishment and are rewarded for their gains" will not dare to violate the law and violate the prohibition, which can prevent people from doing whatever it takes for the sake of profit, and reveals the reasons why the rule of law can be implemented and must be implemented. The function of the rule of law is to "set points and stop disputes" and "promote merit and prohibit violence". On the one hand, social conflict is due to undecided status. Shang Ying said: "A rabbit goes, a hundred people chase it, not to the rabbit can be divided into hundreds, from the name of the undecided." "The law establishes the title and helps to avoid conflict. On the other hand, the rule of law can ensure that the country is prosperous and strong, that is, Han Fei's so-called "those who know the law are strong, and those who are slow to law are weak". The law must also be open and easy to understand and be complied with as one. Shang Ying said: "The sage is the law, and he will make it clear and easy to understand." "Only by not avoiding ministers when they are punished, and not sparing no stone on rewarding the good" and "all the nobles and ministers obey the law" can the rule of law be truly implemented.
Highlight the outstanding characteristics of Chinese civilization.
**The General Secretary pointed out that "the rule of law is one of the important achievements of human civilization, and the essence and gist of the rule of law are of universal significance to the national governance and social governance of all countries". The idea of the rule of law contained in the excellent traditional Chinese legal culture not only embodies the essence and gist of the rule of law, such as emphasizing the rule of law, emphasizing the importance of legislation and law enforcement, emphasizing the openness, equality, objectivity and stability of the law, and emphasizing that the law should be based on society and reform and change in accordance with the development of the situation; It also highlights the outstanding characteristics of Chinese civilization and has become a unique rule of law thought in the human civilization of the rule of law.
The Chinese civilization has been uninterrupted for more than 5,000 years and has outstanding continuity, and the idea of the rule of law in China's excellent traditional legal culture also reflects this long-standing historical continuity. From the Spring and Autumn Period and the Warring States Period when Legalists put forward the idea that punishment has no hierarchy and the law is not noble, to Dong Zhongshu in the Han Dynasty who invoked Confucian scriptures and righteousness to adjudicate cases, injected Confucian values and principles into judicial activities, and started the process of legal Confucianization, to the emergence of legal science in the Wei and Jin dynasties that used the scriptural method of annotation and interpretation to study and interpret the content of written law and its application, and then to the maturity of legal science in the Tang and Song dynasties, and the legal science of the Ming and Qing dynasties scaled new heights on this basis, the idea of the rule of law contained in the excellent traditional Chinese legal culture continued to develop and move with the times.
After the Qin Dynasty, with the establishment of the first-class centralized system, Chinese civilization has become a unified civilization with pluralism and integration, inward cohesion, unity and concentration. Although it has gone through several periods, national reunification has always been the mainstream of Chinese history, and Chinese civilization has outstanding unity. This determines that whether it is Legalism, Confucianism or Taoism, the view of the rule of law is to maintain the unity of the country.
1. The unification of the law is the pursuit. The idea of the rule of law contained in the excellent traditional Chinese legal culture emphasizes "one law" and "one respect", and believes that the implementation of the rule of law must unify the legislative power, the content of the law, the ideological understanding, and maintain the stability of the law.
From the Spring and Autumn Period and the Warring States Period to the Qing Dynasty, new ethnic groups were constantly integrated into a unified multi-ethnic state in various periods of Chinese history. After the magnificent integration of ethnic groups, the idea of the rule of law contained in the excellent traditional legal culture of China has shown the characteristics of the convergence and integration of multi-ethnic legal concepts, legal principles and legal systems. In addition, this idea of the rule of law is a fusion of Confucianism, law, Taoism, Mo, Buddhism and other thoughts, which not only includes thinking about the essential characteristics of law, but also condenses and summarizes the experience and wisdom of ancient legislation, law enforcement, justice and law-abiding practice, reflecting a clear inclusiveness.
The ideas of the rule of law contained in the excellent traditional Chinese legal culture are rich in content, broad and profound, such as the concepts of taking the law as the foundation, governing by the law, having no hierarchy of punishment, and not being noble in law, which not only radiate a dazzling ideological light in history, but also make unique contributions to the development of human rule of law civilization. We must continue to dig deep into the essence of its thinking, promote its creative transformation and innovative development, and enable it to play a positive role under the conditions of the new era.
The author is a professor at the School of Law, East China University of Political Science and Law).
People** 2024-02-19 09 Edition).