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The system in the classical period was partly ruled by law.
When we understand the classical system in China, ordinary people will ask, is this a society ruled by men or a society ruled by law? To a certain extent, according to my research, I will feel that part of it is the rule of law.
After China established a huge empire from the Qin Dynasty, another important change was the establishment of the bureaucratic system. In the Ming and Qing Dynasties, especially in the Qing Dynasty, China had a vast territory and numerous bureaucrats. There are about 20,000 bureaucrats in the Qing Code. How to manage these 20 thousand bureaucrats is a problem that the emperor has to consider. Without the system, it is impossible for these more than 20 thousand bureaucrats to manage effectively. Therefore, part of the rule of law in China's classical period-the very core content-involved the organization, selection, assessment and rewards and punishments of bureaucrats. Therefore, the need of management bureaucracy is actually a particularly important reason for the rule of law in China.
There is another reason. China is a vast country. One side of the country has water and soil to support one side, and the local conditions and customs are different. Every place has its own living habits and customs, which are close to the daily life of ordinary people. In daily life, economic and social communication follows such a set of rules. But the problem is that it is difficult to maintain the unity of a huge country without corresponding legal unification. To build a huge country and maintain its normal operation, then the Basic Law is necessary.
How to popularize the law in ancient times?
It is precisely because of the need of the Basic Law that since the Ming Dynasty, the basic codes of the country, such as the Daming Law, have a special provision called the law of speaking and reading. The first level requires all bureaucrats to read and study the law and be familiar with its meaning. If they don't read and master the meaning of the law, they will be punished by the law. On the second level, for ordinary people, this clause also requires everyone to learn and understand the law. Under such circumstances, if ordinary people commit crimes, sanctions can be mitigated, that is, those who know the law and break the law can mitigate sanctions, while those who don't know the law can't mitigate sanctions.
In fact, the emperors in ancient China attached great importance to popularizing the law. For example, in the era of Zhu Yuanzhang, he once formulated the so-called "six oracles", that is, six quotations, which required people to study once every half month. In the Qing Dynasty, when Kangxi arrived, he wrote Sixteen Articles of Oracle Bone Inscriptions. By the time of Yongzheng, these sixteen Oracle Bone Inscriptions were annotated and became the exegetical text of 10000 words, which was called "Oracle Bone Inscriptions's extensive training". Such an Oracle also ran through the grass-roots society in rural areas in the Qing Dynasty, which was then called the township agreement.
Because the literacy rate in ancient times was not too high, it was not as popular as our current education, and it was also discussed in academic circles. The average literacy rate in the Qing Dynasty was about 20%, and about 20% of the population could read. Most people, especially women, are illiterate. What should I do? Some local officials even drew illustrations on the handout. After reading the picture, the children ask their father what the picture says, and then the adults will explain it to him. This image is to facilitate the dissemination of the emperor's quotations and annotations and better popularize such laws.
In ancient times, there were books about the annotations of the Great Qing Law and the Great Ming Law. Notes alone are not enough. In order to make legal interpretation more popular, some local officials will summarize the legal contents they must use in their daily work and make comments later. There is another way, that is, considering that laws sometimes can't be remembered, there were some writers in ancient times. He will write the legal provisions one by one into a five-word or seven-word verse, which is as easy to remember as a poem. Others make the legal provisions into charts, which look clear at a glance.
Ancient judicial trial and judicial experience
The ancient books on judicial trials in Ming and Qing dynasties are vast. According to the statistics of a French scholar, there are about 1000 kinds of books. It is conceivable that there must be a large number of readers and a lot of demand. This means that although the bureaucrats in the officialdom have no training in law and administration, they will learn about administrative work and judicial work in this way in the future.
The knowledge of judicial work is sometimes written very carefully. Let me give you an example. For example, there are rules on how many words to write in the indictment. Moreover, ancient judges were not professional judges like us now. In a county in the Qing Dynasty, there were only four or five bureaucrats in the state establishment, and one county magistrate was in charge of the county affairs. Sometimes he is very busy. If he writes a long book, it is difficult for him to grasp the key issues of the law, so the rules can only be within 144. Even such complaints are formatted, and the format is printed.
These books will contain all the judicial experience. A person who doesn't know the law and has no judicial experience will have some knowledge in this field and know some skills and precautions in this operation, so the judge will actually find such a book to read.
There is a provision in ancient Chinese law that when an official writes a judgment document, he must quote the legal provisions when he is convicted and sentenced. If he fails to quote, he will be punished by law. This provision was very clear and complete in the Tang Dynasty. Therefore, it is illegal for the law to quote, and it is illegal not to quote. In addition, if the quotation is wrong, it is illegal, and you should bear the responsibility. If it causes unjust, false and wrong cases, the responsibility is even greater.
What was the ancient judicial procedure like?
In ancient China, especially in the Ming and Qing Dynasties, the trial procedure of cases above imprisonment was more complicated than today. For example, in Futian County-let's assume that Futian District (Shenzhen) was a county in the Qing Dynasty, and a robbery occurred, and the criminal was sentenced to five years in prison-of course, the maximum sentence in ancient times was only three years. The criminal in this case was sentenced to three years by the sheriff of Futian county, and then the sheriff read the trial results to the parties and asked them not to plead guilty.
The client said, "Confess your guilt. I have no problem with it. You have good judgment and are honest and upright." However, this case will not be closed and will be automatically transferred to the Shenzhen Intermediate People's Court for review. After hearing the case, the Intermediate People's Court asked whether the evidence was like this, whether it felt no problem, and did not plead guilty. Then the criminal said, "I plead guilty, you have a good verdict, and I have no opinion." The case will not be reconciled for the time being and will be reported to the Guangdong Provincial High Court for retrial. After the Guangdong Provincial High Court is finished, if it does not involve human life, the case can be made as a final judgment, but it still needs to be filed with the Supreme Court. If a case of imprisonment involves human life, it must be reported to the Supreme Court. If it is a murder case, it must be examined by the emperor, and there must be a joint hearing of three ministers and nine ministers. The procedure is complicated.
What I said above is self-censorship within the bureaucracy. What if the customer doesn't accept it? In ancient China, there was also a mechanism in which the parties could lodge complaints on their own. In ancient China, if a case was an unjust case and the parties refused to accept it, they could go to Beijing to appeal, and they could go to the yamen of Duchayuan in Beijing to appeal, which was called Beijing Accusation. You can also appeal directly to the emperor. This is called knocking on the official, which means you can appeal to the emperor. Bureaucratic officials can protect each other, but ordinary people say this case is unfair. He can supervise and inspect through external forces, through superiors, and even through the Supreme Emperor, and ask for re-examination. What will happen? Under these pressures, judges have the motivation to study law.
During the Ming and Qing Dynasties, especially in the Qing Dynasty, local officials all had teachers, who were judicial advisers appointed by local officials themselves. In ancient times, due to such a set of procedural rules and responsibility rules, it was difficult for a local official to be competent without studying law. If he is incompetent, once there is a false and wrong case, the judicial responsibility will come.
How to handle cases in ancient times?
Ancient laws did not explicitly stipulate that cases should be heard in public, but in fact they are usually heard in public, unless some cases involving privacy, such as cases involving the relationship between men and women, are not heard in court.
Generally, when hearing a case, screen friends will listen behind the screen of the yamen. If he hears that the judge is missing, he will write a note. There are doormen at the yamen, just like the little novice monk next to Jia Yucun in A Dream of Red Mansions. The doorman will bring tea and water to the local officials, and the touts will take the opportunity to give the local officials a note and give them on-site guidance, telling them where they need to correct and supplement. The master made up for the lack of knowledge and experience of the judge by passing the note.
After the trial, how can the judge make a judgment with clear facts, conclusive evidence and accurate application of the law? In fact, in many cases, judges will entrust the task of drafting judgments to consultants. If the consultant can't make up his mind, they will discuss it together and make a formal report. Or let the consultant draft it first, and then the local officials will revise it. Anyway, it's all discussion, especially difficult cases. In fact, officials in ancient China made up for their lack of knowledge through such channels.
At present, we have lawyers to help clients in litigation. There were no lawyers in ancient China, but there were litigators in ancient China, which we now call "black lawyers". Litigants only appeared after the Song Dynasty, which was very mature. People were forbidden to be litigators in the Ming and Qing Dynasties. Litigation lawyers are illegal professions, but they are still active.
When the magistrate hears the case in public, the litigator will attend. When the court is adjourned, the litigation lawyer will tell the client that you still have to do this case. How about I help you? The losing party thinks that someone will help him stand up and reverse his case, and of course he will do it. The existence of litigants requires local officials to make a difference in the trial of cases. Facts are facts, evidence is evidence, and law is law. You can't mess around. If you mess around, the litigator will give advice to the following people. If litigators are tough, it will be difficult for local officials to deal with them.
We can generally find that criminal cases, especially those major cases such as robbery and murder, are very strict in both procedure and substantive law, and can basically be said to be tried according to law. On what occasion will it be judged according to law? Civil cases. Because China is very big, one side of the soil and water support one side of the people, one side of the local conditions and customs. Marriage has the habit of getting married, and business has the habit of doing business. When a person goes to a place to be an official, he still has to consider the customs and habits of that place, so there will be the possibility of circumventing the law in civil cases.
Did ancient people have legal consciousness?
There has always been a saying that China people have no legal consciousness. According to my reading in recent years, I still think that in the Ming and Qing Dynasties, the common people didn't seem to care about the law as much as we thought, or they cared about the law.
There was a daily book in the folk life of Ming Dynasty, which was compiled from the Song Dynasty. There are two kinds of laws in this encyclopedia: one is the legal text, which contains the basic knowledge of law and the summary and brief explanation of some important legal provisions. The other is called system text, which is a model text on legal documents. The formats of various legal documents, such as writing a contract, how to write a marriage contract, how to write a loan contract, how to write a sales contract, how to write a house lease contract, how to write a land lease contract, all have formats, and even how to write a rural regulation.
Moreover, in ancient China, a lawsuit was written, not oral, and someone had to write a complaint before going to the yamen. During the Ming and Qing Dynasties, substitute books were officially set up, and each county set up substitute books, generally two, and passed the examination. The government does this kind of work to provide services for ordinary people to write complaints, and wants to ban litigation lawyers by providing this service. But why do lawyers still exist when there are substitute books? The reason is that the cultural and educational level of substitute books is not high, and the substitute books are registered in the yamen. If you embellish the form paper, you will bear legal responsibility if the facts are different, but the litigant is an underground worker and can't catch it.
During the Qianlong period, the population of China was about 300 million, and there were about 1.500 counties in China. A county has an average population of 200,000. At that time, it was a family of five. When 200,000 was divided by 5, there were 40,000 nuclear families. On average, there are about 200 civil cases to be tried in a county every year, which is not low.
There is a famous Japanese scholar named Kawasaki Takayoshi. He has a book called Modernization and Law. One chapter is devoted to Japanese legal consciousness. One of the angles is to observe whether people have legal awareness from the litigation rate. If the litigation rate in this society is low, people may be indifferent to the law. If the litigation rate is high, the people may have a certain legal awareness, because he knows that his interests have been violated and he has to go to court. Therefore, the litigation rate will have a certain causal relationship with legal consciousness, even a positive correlation.
For example, there are many cases in Nanhai County, Guangdong Province. 80 robberies a year, one-time execution 17 people. Compared with the South China Sea, Panyu is a little better, and the crime rate is half lower than that of the South China Sea. From this information, we can see that China society actually pays enough attention to the law, and so do ordinary people.
Is that a society ruled by law?
So, is it a society ruled by law? Of course not. When we talk about a society ruled by law, we have a very important concept or principle. In this country, no matter government agencies or ordinary people, everyone acts within the legal track, and no one can go beyond the law. Ancient society was not like this. There is no problem that the emperor Lao Tzu is above the law. This is one thing. Secondly, local officials can sometimes be above the law.
I was writing a book last year, focusing on some special cases of the Qing Dynasty. From these special cases, it can be found that if a county magistrate encounters a mass incident or the like, in order to quell the incident in time, he may arrest one or two principal criminals and pull them out to make an example. Now a county judge encounters a mass incident, can the president of the court pull people out and kill them? No, even the president of the Supreme Court can't do this, but he did it in the magistrate of a county in the Qing Dynasty. This is a society ruled by men. You can write a report to the emperor after killing. The emperor thought that this matter was solved and the social order was stable. Sometimes he will be lenient and even praise him.
Ideologically, ancient China was not a society ruled by law. Xunzi said, "Someone can cure it, but it can't be cured." The real key is people. Therefore, in this sense, Mencius would also say: "Disciples can't do it on their own."
Moreover, in ancient China, you will find many interesting stories, among which not all laws are highlighted, because rural society is an acquaintance society where people bow their heads and don't look up, and everyone is either a relative or a neighbor. If such people are allowed and encouraged to go to court, the relationship between people will be more tense, but it will produce more contradictions, which is not conducive to building a harmonious social order. Therefore, sometimes we often put aside the law and consider the so-called human feelings, feelings, long-term interests, and of course the judicial cost of litigation.
An ideal judgment made by ancient judges in China should give consideration to justice, human feelings and national laws, which is a satisfactory pattern. Therefore, to understand whether China is a society ruled by law or a civilization ruled by law, we should consider the structure of the system and the characteristics of the normative system. Law is not self-sufficient, but balanced by nature and human feelings. Whether it is a criminal case or a civil case, reason is very important.
Criminal cases, such as those murders, difficult cases and particularly difficult cases. There are two kinds of difficult cases in ancient China, one is that the facts of the case are unclear and the evidence is insufficient, and the other is that there is no corresponding legal provision. All difficult cases have to go through procedures, from the local authorities to the punishment department in Beijing, and even to the emperor's ruling. When making such a trade-off, the emperor must make a comprehensive trade-off based on justice and human feelings he has experienced and understood, and justice is a very abstract existence, so he is more concerned about the facts, plot, sociality and politics of the case, as well as the emperor's own emotional attitude towards the case. So ancient laws are very different from our present laws. This comprehensive balance was more in ancient times than it is now, which is also the difference between ancient legislative technology and today.
Therefore, to understand China's traditional civilization ruled by law, we must see the bureaucratic system, social structure and rule system. From these three perspectives, we will have a more comprehensive grasp.
Hope to adopt ~