Marx said: "Punishment is just a self-defense means for society to deal with acts that violate its living conditions (no matter what these conditions are)." The light, heavy, slow and urgent punishment ultimately depends on the threat of criminal behavior to the ruling relationship. As early as the early years of the Western Zhou Dynasty in the heyday of slavery in China, this truth was perceived by the ruling class at that time and clearly reflected in the etiquette laws and regulations they formulated.
In order to consolidate and strengthen the slave-owning class's class dictatorship over the vast number of slaves and sum up historical experience, Zhou Gongdan, a saint of the slave-owning class, presided over the formulation of a wide-ranging "Rite of Rites". In "Four Kous in Qiu Guan", he first expounded the three principles of "ruling the country, assisting the king to punish the country, and respecting all directions". One day, the new country will be fined for light code, two days for medium code and three days for heavy code. This shows that the ruling class's leniency, strictness, lightness and severity in the application of punishment are determined by their different situations according to the easing or fierceness of the struggle situation with the local class at that time. Of course, these records are just criminal and political policies established by their intuitive recognition of the ups and downs of their own country and society and the situation of chaos control. In their book Lv Xing, which was written by the times, they took the application of punishment in line with the situation as a routine and made a highly generalized demonstration and explanation from the criminal law theory. "Lu Punishment" stipulates that "punishment is lighter than the world, not neat, but heavier than the world. "The effect is that in different historical periods, the application of punishment is different. That is, according to the different situations of crimes in different periods and the needs of objective circumstances, different penalties are formulated to meet the actual needs of combating crimes in different periods; Only by correctly executing different punishments can we use punishments differently and analytically, so as to achieve the consistent need of stabilizing social order. This thought and system not only summarizes the history of penalty application, but also reflects the objective regularity of penalty application. Since its formation, it has been highly valued by rulers and thinkers of past dynasties.
"The punishment in the world is light and heavy" was first seen in Shangshu Lu Punishment. Shangshu, also known as the "classic book", is a compilation of China's ancient historical documents and some books describing ancient deeds. It is said that this book was compiled by Confucius, the founder of Confucianism in the Spring and Autumn Period. It can be seen that this kind of penalty thought was undoubtedly affirmed and inherited by Confucianism at first. When Confucius further elaborated this thought, he clearly pointed out the situation and conditions of the times. He said: "if the government is lenient, the people will slow down, and if it is slow, it will be fierce; Fierce people waste, waste is wide. Forgiveness is fierce, fierceness is broad, and politics is harmonious. " This kind of criminal law thought is said to have cause and effect, and there are rules for change. At the same time, Confucius also explained the objective need to adapt at any time with the principle of "tension and vitality". He said: "Zhang but not chi, civil and military can also;" Easy and not open, both civil and military. One is to relax, and the way of civil and military affairs is also. " The "Tao" mentioned here naturally includes the above-mentioned basic principles of timely punishment.
Shang Yang, a representative figure of Legalism in the Warring States Period, put forward directly and clearly: "Each should stand at that time and make a ceremony according to the matter;" The etiquette is determined according to the time, and the rules and regulations are appropriate. " Historical facts have proved the truth of adapting to the times. He said: "if the rule of the world is not the same, the country does not have to learn from ancient times." King Wu Tang was prosperous without repairing the ancient times; The extinction of Yin Xia is not easy to die. "
If you are in a bad situation, you put forward: "the rule is heavy, and the chaos is light." The crime committed is heavy, and the crime of chaos is light. The book says that' the punishment in the world is light and the punishment in the world is heavy', which is also called. " He even suggested: "It is also prosperous to levy violence and punish evil. The death of the murderer and the punishment of the wounded are the same for all kings, and the source is unknown. Punishment should be tailored to the crime, and chaotic thoughts should be avoided if it is not called crime. Therefore, he believes: "Where punishment is the basis, violence and evil are prohibited, and no levy is imposed. The murderer will not die, and the injured will not be punished, which shows that it is not evil to be lenient with thieves. "Xun Qing has his unique views on under what circumstances to use light punishment and heavy punishment. However, we have the same understanding of the law that the punishment in the world is light and the punishment in the world is heavy. We also point out that the purpose of punishing and killing criminals is not limited to punishing themselves, but to punish "their failure" in order to prevent crimes, and we cannot ignore the general prevention of psychological influence on others.
Han Fei, a master of legalism, expounded this criminal law thought comprehensively. He said: "The sage's rule of the people is based on this, not on his desires, but on benefiting the people. So it is not so bad for the people, and it is also the basis of love. " "Severe punishment means that the people are pro-law" and "pro-law traitors are not cute." "Therefore, governing the people is impermanent, and governing is the law. If the law changes at any time, it will be ruled, and it will be ruled together with the world. " "If it is forbidden, it will be ruled by name. If it is known to the world, it will be punished." On the contrary, "the chaos of time shift is not easy to cure, but it can cure the public and prohibit the unchanging." Therefore, the sage governs the people, and the law forbids it and changes at any time. In other words, a wise ruler should consider the root causes, not follow one's inclinations and aim at benefiting the people. Rulers make criminal laws not to hate the people, but to love them. When the punishment is severe, the people will respect the law and everyone will abide by it, so there will be no crime. Therefore, there is no routine for governing ordinary people. In order to manage the society well, laws and penalties have been formulated. Only when the law changes with the needs of the times can it be effectively governed; Only when the punishment measures are adapted to the crime situation at that time can they succeed. If times change and the law of governing the country remains unchanged, there will be trouble. Even people who are good at governing the people will suffer setbacks and weaken the rule of law if they cannot prohibit and punish crimes with the changes of the situation. Therefore, a wise ruler must ensure that laws are formulated with the needs of the times and take the severity of punishment in time to govern the country. It can be seen that Han Fei's thought of "the punishment in the world is light, but the punishment in the world is heavy" is clearly expounded as follows: on the one hand, legislation should be guided by the situation, and "the law should be governed with the changes of the times"; On the other hand, the judiciary should also conform to the situation and make "contributions to the world".
Taoist Laozi and Zhuangzi believe: "People should be everywhere, the land should follow the sky, the sky should follow the Tao, and the Tao should be natural." The "nature" here naturally includes the development of the situation and has the idea of adapting at any time. They advocate that criminal law should be based on the "natural principle", regulate the crowd and let nature take its course.
After the historical lesson of "a hundred schools of thought contend" in the heyday of jurisprudence in the Spring and Autumn Period and Warring States Period and the demise of the second generation of "full-time prison officers" and "heavy punishment and heavy law" in Qin Dynasty, all rulers in China's history regarded the idea of "punishment is lighter than the world and more important than the world" as the classic of their spirit of "rule of law", and most of them received certain results; Anyone who can't respond at any time will be punished by this law.
In view of the fact that in the early Zhou Dynasty, the rulers of the Han Dynasty adopted the criminal policy of "establishing the country with three codes and assisting the monarch's punishment" and gained the historical experience of "the rule of Cheng Kang", and at the same time, according to the objective reality that the people in the early Han Dynasty suffered from the Qin Dynasty for a long time and were severely punished, they implemented the criminal policy of "simplifying the law but neglecting the punishment" and "saving the contract and worrying about it", and also gained the "the rule of Wenjing" that went down in history. Among them, timely punishment is undoubtedly one of the important reasons for their consolidation of rule. Jia Yi, a politician in the Western Han Dynasty, made a timely historical summary that "a gentleman is a country, looking at the past and learning from the present, and taking part in personnel, so it will be safe for a long time". It was Shu Han who favored China. Because of his prime minister Zhuge Liang's assessment of the situation, he implemented "I am arrogant today, don't you know how to be grateful;" Only when you are a knight, you will know your honor. Benevolence, top-down restraint, attention to governance, and the pursuit of success have finally achieved the governance effect of "strict punishment and no regrets" and achieved a stable situation of "officials are not allowed to rape, the people are self-indulgent, the road is not left behind, the strong do not invade the weak, and the weathering is awe-inspiring".
Dong Zhongshu, a Confucian in the Han Dynasty, thought that "it is against heaven to punish for politics" and suggested that Emperor Wu of the Han Dynasty should implement the policy of "ousting a hundred schools of thought and respecting Confucianism alone", which made the Confucian thought of light punishment influence feudal rulers in previous dynasties, and most of them advertised it as "Wang Dao Ren Zheng". Ge Hong of Jin Dynasty sharply refuted: "Benevolence is the powder of politics", "Punishment is the strategy to conquer the world", "If you don't pay attention to benevolence, you can't rule by pure benevolence; It is impossible to abolish punishment to improve the people. "In a class society where class struggle is the main contradiction, it is impossible to solve the crime of fighting to the death with the ruling relationship simply by talking about' benevolence' and persuading goodness. Historical facts show that: "The most urgent thing to do is to punish and reward. "A country has no rule, but there is existence and death. There is no difference between punishment and reward for the dead. Those who govern the country have their rewards and punishments. " It can be seen that the joints of chaos need to be clearly rewarded and punished. There is no one who does not rule the country according to law, and the law is divided into the law of national subjugation and the law of governing the country. The difference lies in whether the punishment is divided. The word "fen" here mainly means that there is a penalty when there is a penalty and a reward when there is a reward; On the contrary, it is "no matter". However, as far as punishment is concerned, there are still differences between the world being light and the world being heavy, between severe punishment places and non-severe punishment places, and between a crime and a crime. In other words, the severity of punishment depends on time, place and conditions. Bai Juyi put it well in the Tang Dynasty: "The punishment of saints also changes from time to time, depending on human feelings." Therefore, Wang Anshi, a political reformer in the Song Dynasty, pointed out when expounding his political reform proposition: "The laws of the Xia Dynasty are more important than those of the Shang Dynasty, and the laws of the Shang Dynasty are more important than those of the Zhou Dynasty, which is a festival for the people because of the world. But why is this? " He also said: "It is not enough to learn from others", "It is good to learn from others; If you don't do it, it will be great harm. " In other words, the governance of the country depends on laws that meet the requirements of the times; The implementation of the law depends on law enforcers who are good at sizing up the situation. Only by fully realizing these two conditions can we receive the actual governance effect.
Throughout the history of ancient criminal law in China, the idea of "punishment is lighter than the world, and punishment is more important than the world" was mostly followed by the Li Dynasty, and there were many examples of deviations. Wherever legislation and judicature can be "changed at any time", there have been so-called peaceful and prosperous times. Like the "rule of Cheng Kang" and "rule of cultural scenery" in history, Emperor Taizong and Li Shimin realized that judging the order of severity, carefully measuring the severity and misusing the severity of punishment are of great significance to people's lives. They "get rid of the details and change the emphasis to be lighter". If they are punished, they will think without anger and abuse the punishment. This contributed to the "Zhenguan rule" in the early Tang Dynasty. On the contrary, the Qin dynasty blindly punished the law severely, and the second one died; Xin Mang blindly "tyranny", died all his life. In the Southern and Northern Dynasties, Xiao Yan, the Emperor of A Liang in the Southern Song Dynasty, was determined to be refined and refined, specializing in Buddhist precepts, flaunting "benevolent government", being frivolous and arrogant, rebelling against the prince, crying for lessons, and the princes were rampant, which led to lax public security; Take the consequences.
In view of these experiences and lessons in history, in the process of consolidating their class rule, most rulers adhered to the criminal law principle of "the punishment in the world is light and the punishment in the world is heavy" to varying degrees, and combined with the specific situation of their local class struggle at that time, they implemented a set of corresponding criminal policies and established a penalty system that embodied the idea of "the punishment in the world is light and the punishment in the world is heavy". At the same time, due to the complex situation, the situation of class struggle has various characteristics, such as ups and downs, one after another, and a crime occurred in a certain time or region, which determines various forms of punishment measures and criminal management systems. Some directly reflect the idea of punishment from light to heavy, and some reflect the idea of punishment from light to heavy, but they all change from time to time in legislation and justice. In addition, there is a special form of coup that the law remains unchanged.
First, the criminal legislation that directly reflects the idea of "punishment is lighter than the world"
The most prominent ones are: in the early years of the Western Han Dynasty, at the initiative of Prime Minister Xiao He, in view of the long-term suffering of the people at that time from the harsh laws of Qin Dynasty, Liu Bang clearly stipulated "three chapters of making laws" and "keeping laws and punishments", simplifying laws and pleasing people's hearts, and the Wenjing era reached a historic rectification. By the time of Emperor Wu of the Han Dynasty, Liu Che's contribution to diplomacy had been refreshing, and he also implemented a system of severe punishment and severe punishment. Emperor Wen of Sui, Emperor Wen of the Sui Dynasty, won the first place in the world. In view of the historical lesson of the Northern Zhou Dynasty that "the punishment was cruel and cruel, and the people's hearts collapsed", he carried out reforms, deleted torture, "light punishment with caution", "frugality without losing", replaced the weight with light, and "acted at the right time". Emperor Yang Guang of Yang Di succeeded to the throne. Based on the peasant uprising against his tyranny, he "aggravated the punishment" and implemented the severe punishment policy of "all thieves in the world have been arrested, and their crimes are minimal, so they are all beheaded". In the early years of the Tang Dynasty, there was a system of "worrying about prisoners", and in the Zhenguan era, there was a move of "keeping prisoners", which can be described as combining leniency with severity. However, during the reign of Wu Zetian, Wen used harsh officials and imposed penalties indiscriminately, forcing confessions regardless of the severity of the crime, which was called severe punishment and severe law.
The Song and Ming Dynasties were different from the above situation. At the beginning of the founding of the People's Republic of China, they implemented the policy of severe punishment; But the punishment is light and heavy, and it is still the same. The Song Dynasty was a unified feudal dynasty established after the long-term separation of the Five Dynasties and Ten Kingdoms. The border is not peaceful and the struggle is fierce. It "catches the rape with heavy punishment" and "saves the time with heavy punishment". During the reign of Song Huizong, Zhao Bei unilaterally carried out the criminal policy of "taking stolen goods as a crime" in the application of punishment, resulting in the result that "the victim's family died for theft without reason and dared not sue the official". Zhu Yuanzhang, the first emperor of Ming Dynasty, severely punished cronies and corruption crimes on the pretext of "lax punishment of Yuan". But later, he warned his great-grandson Zhu Yunwen, saying, "When I manage troubled times, the punishment must be heavy. When you rule a peaceful world, the punishment should be light. The so-called punishment is light and heavy. " After Ming Huidi Zhu Yunwen succeeded to the throne, he said to the criminal officer, "Daming Law was set by the emperor's ancestors, and I was told to read it carefully, which was often heavier than the previous generation. Establishing a code of national chaos is not a way passed down from generation to generation. Specializing in "honoring ethics, forgiving suspected prisons, and calling me Jia and Wanfang. "
In the early Qing Dynasty, the Central Plains ruled the country by laws and regulations, so as to keep pace with the times, pay equal attention to laws and regulations, and create a new generation of systems. "Laws and regulations are complex and simple, and we must keep pace with the times." In the era of Kang (), Yong (Zheng) and Gan (Long), a minority ruler also achieved effective governance under the guidance of the principle of "prohibiting violence and stopping rape, and settling down". By the end of the Qing dynasty, the abuse of heavy codes, such as "correcting the law on the spot", was an outstanding performance. Without the law, the masses are angry; People are not afraid of death, and the rise of the revolution ended the rule of the Qing Dynasty.
The second is the criminal legislation that embodies the idea of "punishment is lighter than the world, and punishment is more important than the world"
This has two forms:
First, drawing lessons from the historical experience of the Three Codes of the Western Zhou Dynasty in terms of punishment, the rulers of the Northern Song Dynasty established the penalty system of "attaching importance to the law but neglecting the land" on the basis of the memorials of "The Disaster Begins at the Junction" and "Please Get rid of the thief quickly" by Bao Zheng. Accordingly, anyone who commits a crime in a "place where the law is heavy" will be punished more severely than in a place where the law is not heavy. At first, Song Renzong was limited to the counties in Kaifeng, the capital, and then gradually extended the "heavy law" to almost half of China. Based on the basic national policy of ethnic discrimination and oppression, the Qing Dynasty openly implemented the Manchu-Chinese penalty system. If Manchu committed a crime, it will be punished as usual, and it will be released or compensated in the end; Crimes committed by Han people, regardless of the seriousness of the case, will be severely punished, or even extinct according to their surnames, implicating the innocent. At the end of the year, in the name of "local unrest", they gave orders to the governors and ministers of the places where the people's revolution rose, to act first and then act, and to "hell to pay".
Secondly, the feudal rulers of past dynasties, starting from the six chapters of the first feudal code "Fa Jing" written by Li Kui of Wei during the Warring States Period, "thought that Wang Zheng was in no hurry to be a thief", so the object of their punishment was always the crime of theft. In the Southern and Northern Dynasties, the Northern Qi Dynasty summarized ten kinds of the most serious crimes endangering feudal unity in its criminal law, which were called "Ten Major Crimes" as the focus of its punishment. After history entered the Sui and Tang Dynasties, feudal rulers even defined the "top ten crimes" as "top ten felonies". Although he was pardoned, he was removed from the list, so he was called "Top Ten Crimes". In addition to the "ten evils" of "endangering the country", each generation has different felony laws or misdemeanor laws. In the Qin dynasty, there was a serious crime of "I said that the poet abandoned the city and regarded the ancient as a home that was not what it used to be". In the Han dynasty, there was a law of contempt, and in the Song dynasty, there was a law of thieves. Historically, it was called the combination system of Tang and Ming, but its penalties were different: "Generally speaking, it is related to etiquette and custom education, and the law of Tang is more important than the law of Ming; Thieves, money, food and other related matters are more important than the Tang law. " In the early Ming dynasty, corrupt officials were severely punished, and "those who commit stolen goods have no loans"; In order to suppress the revolution in the late Qing dynasty, anyone who "changes with the country and corrects the law on the spot".
This is the reflection of China's thought of "punishment is lighter than the world" in feudal legislation and judicature.
Third, the law remains unchanged, and the criminal policy changes the "punishment is lighter than the world" system.
A history of the development of China's criminal law fully proves that "the law changes with time" is absolute, and it is everywhere. Not only the country (referring to the vassal state) has its own laws, but also each generation has its own rhythm, and even the laws of each dynasty are few and will never change. Change will flourish, and constant will decline. At the beginning of the Tang Dynasty, three codes were enacted in time, namely, the Military Morality Law, the Zhenguan Law and the Yonghui Law, which entered the prosperous Tang Dynasty without changing the legal system once. An important reason for the prosperity of the Tang Dynasty is that "law changes with the times and governs the world." The ancestors of the Qing dynasty entered the Qing law, hoping that it would last forever. "Keeping it for the world" made it a law of death, which eventually became an important reason for the Qing dynasty's rule from prosperity to decline and from decline to death. At the same time, however, the law is the charter of governing the country and safeguarding the people, which unifies the behavior norms of people's words and deeds. It should not be changed or changed too frequently, but should be relatively stable. Otherwise, the people will be at a loss, which is not conducive to consolidating the rule of society. So "unchanged" can only be relative and conditional. This condition is nothing more than "suitable for the time." In this regard, rulers and jurists of past dynasties have adopted some methods to solve the contradiction between change and "invariance". To sum up, there are two specific methods.
First, the law remains relatively stable, and legal forms such as imperial edicts, imperial edicts, imperial edicts, decrees and imperial edicts are used to solve the problem of legal response to the situation. In the history of China, the written law has been the most commonly used method by rulers of past dynasties since it came into being, and it has received certain governance effects. For example, according to the law, imperial edicts, decrees, amnesties and other practices have been adopted by many dynasties. However, there are also extra-legal edicts. For example, the imperial edict of the Song Dynasty is an outstanding performance. However, the thought of "this is a matter of self-destruction, choice, and extra-legal meaning" has led to the evil result of "confusing the old chapter"
The second is that the law remains absolutely stable, so examples are used to make up for the shortcomings or defects that the law cannot cope with. Look up "examples" first appeared in Lv Xing, Shangshu: Comparing crimes from upper to lower, and Wang Zhi, Book of Rites: "The ratio of small to big must be looked up", but no examples were formed. In the Qing dynasty, the law was amended and attached to the law. This is a pioneering work of Qing legislation, and a piece of legislation different from the previous one, Supplementary Provisions of Qing Law Collection, was formulated. It stipulates: "All laws and regulations should not contain all the facts. If there are no proper conviction rules, the law shall be invoked to increase or reduce the punishment. You should agree to charge and broadcast news. " In handling the case, they "cited the law" and formed a case. According to the case, they set an example and formed the "see (current) practice rules". Later, the code was incorporated into the Qing Law and became the written law of the Qing Dynasty.
The difference between law and example in the criminal law system of Qing dynasty is: "the law remains unchanged, and examples are added and deleted year by year." Five years of minor repairs and five years of major repairs. " The reason is: "the law still exists, and it is not easy for the county (hanging). Like the operation of Fannie and Freddie. Or days have changed, or years have changed. Therefore, Heaven rotates at the age of five, so the astrologers have the method of setting leap; Statutes are also a five-year series, and legalists add articles. " When dealing with specific cases, its judicial organs can follow the principle of "it is not easy to cover the law, but there are twists and turns in the situation and it is necessary to sum up". Therefore, there are examples of laws breaking the law and quasi-emotion; Law-abiding, but lead by example ",combined with the specific needs of the local situation at that time, the specific criminals were convicted and punished.
The difference between law and cases is established. Cases should always meet the actual needs of fighting crime, and the result of implementation will inevitably appear: with cases without legal texts, laws will gradually become empty, and cases will become more and more complicated and chaotic. Among them, some are inconsistent and some are aggravated outside the law; There are also violations of the law, and even the situation caused by this case. In this way, it is not "which punishment is lighter or heavier in the world", but which is lighter or heavier. The result is chaos and the rule of law is rampant. As Engels said, "laws and regulations contradict each other, and as a result, a completely illegal country replaces a' legal country'." This is the bitter fruit that the rulers of the Qing Dynasty failed to anticipate.
Generally speaking, historical facts show that "the punishment of the world is light and the world is heavy" is in line with the objective requirements of cracking down on crime. Only according to the specific local historical conditions at that time, different degrees of punishment are formulated and applied differently, can the positive role of punishment as a means of social self-defense be effectively played, social progress be promoted, and the peace of the country and society be guaranteed. If the penalty cannot be adapted at any time, it will not only be ineffective, but also counterproductive in the new situation of outdated rule of law, which is not lacking in our history. Zhang Fei, the Ming monarch of the Jin Dynasty, once said, "If a man is a servant of the Holy Code, he can hold a knife and a rope. If the knife is added indiscriminately, it will hurt things, and the rope bomb will directly invade. " Therefore, in handling cases, we must abide by the principle of "law, abstruse and abstruse" and cannot stay together. Or calculating to match the crime, or slightly unconventional, or taking pleasure in things, or having fun with the times, or pushing the weight to stand, or attracting the light to fall. The summary of these historical experiences is worthy of attention. But at the same time, it should be noted that, as Wang Anshi correctly pointed out in the Song Dynasty, "it is also a fact that the criminal law has changed for 30 years, and it cannot be understood as" when it is light, it is heavy ",which is also unfavorable for governance. It can be seen that punishment is light and heavy, which has always been the case in ancient and modern times. Its law is: the law changes at any time, and the punishment is appropriate according to the situation. Its way: either through place or through sin. Its method: or time-shifting law changes, using laws and orders to control punishment; In other words, the law is certain and the examples are flexible at any time, so that the application of punishment is suitable for the needs of criminal situations and situations. That is to say, the lightness and heaviness of punishment adapt to the needs of cracking down on crime, and show different punishments from the differences of the times. This is the need of struggle and the law of punishment. If it is used well, the country will govern; Improper use, social chaos. From the history of class struggle in China for more than 4,000 years, we can see the changing context of rule and chaos. This is that "those who have won the world since ancient times are wise kings and cannot be ruled by criminal law", which is determined by the historical laws of class society. Ancient and modern, Chinese and foreign, no exception.