Law has always been regarded as the pride of western civilization, but China's legalist thought has a bad reputation for more than two thousand years. For a long time, western academic circles generally believe that the laws in China are mostly punitive, and China people always try to avoid resorting to formal laws unless absolutely necessary. Even in the first half of the 20th century, Liang Shuming, a famous scholar in China, once compared the Chinese and Western views on litigation: "It is common for foreigners to go to court, and there is no doubt that they can sue. China people are extremely reluctant to go to court and rarely go to court. Once relatives and friends are involved in the lawsuit and hurt their feelings, it is not easy to meet each other from now on. In Europe and America, lawyers are excellent occupations, but in China, lawyers are deeply despised and disgusted by everyone. " In the 1990s, Qiu Ju in Zhang Yimou's movies was still struggling to decide whether to go to court. The first person who questioned China's concept of non-litigation and anti-litigation was Gao Luopei, a Dutchman who lingered on the edge of Sinology.
When studying in the Department of Political Science and Law, Gao Luopei studied the language and culture of China. 1947 during the period of Dutch Counsellor in the United States, he began to write a series of novels about the Digong case. In order to find inspiration for the novel, Gao Luopei turned his attention to the ancient case-solving writing in China and found a case-solving manual written in the Song Dynasty-Tang Yin Bi Shi. Through the study of 44 cases of Tang Yin Bi Shi/KLOC-0, Gao Luopei found that the cases faced by the ancient government of China, represented by the Song Dynasty, were extremely diverse, including all kinds of civil and criminal cases, ranging from the ownership of a silk horse to murder and rebellion. Gao Luopei pays special attention to some cases with China characteristics, such as unfilial and deskmate. And summed up the similarities between Chinese and western cases: greed and revenge are the main motives leading to capital crime. Based on the above investigation, Gao Luopei came to the conclusion contrary to the mainstream judgment in the West, and thought that although there were some defects in ancient Chinese laws, the traditional judicial system in China generally operated well.
The essential difference between Gao Luopei and traditional sinologists is that the study of China's politics and history, which most people regard as the right path, is not the most important in Gao Luopei's view. He looked for a small fork in the road that no one had taken, and found something little known but more important. When the mainstream academic circles of legal history in China were still in the research paradigm of traditional institutional history, Gao Luopei noticed the completely different historical materials, the Collection of Judicial Judgments, predicted its academic value in future research, and made new thoughts on the study of Chinese legal history. However, his views did not attract the attention of mainstream academic circles in that year. It was not until the eighties and nineties that people realized his height with the rise of the study of "the history of new legal system" in western academic circles, and his visual method is still enlightening today.
The reason why western sinologists think that ancient Chinese laws are insignificant is mainly because they automatically acquiesce after studying Confucianism: in the Confucian ideal, the state should govern with "benevolent government" and educate the people with morality, so that everyone can live in harmony and reach the realm of "no litigation". In the eyes of scholars, law is a low-level social control tool and should not be over-relied. Recourse to the law means that moral advice and exemplary guidance have lost their function, which is the performance of governance failure. Generally speaking, the value orientation of feudal government is "no litigation". But whether ordinary people are always tired of litigation is not so absolute. The History of Song Dynasty Geography records many places where "people are quarrelsome and litigious".
Gong Ming Shu Jian Qing Ming Ji is a classified compilation of litigation judgments and official documents in Song Dynasty. The book provides a large number of descriptions of the grass-roots society in the Southern Song Dynasty, which provides valuable first-hand information for future generations to understand the society in the Song Dynasty. Many concrete cases reveal the attitude of ordinary people to litigation in Song Dynasty. When their rights and interests are infringed, they are never afraid to go to court, even if the object of the lawsuit is the government office. In Gong Ming's Notes on the Qingming Festival, lawsuits caused by property disputes between family members and social members can be seen everywhere, such as sons stealing their fathers' cattle, sons abusing family property, brothers fighting for property, tenants occupying their owners' land and so on. It covers all aspects of social life in the Song Dynasty.
In a record titled "My brother called his brother notorious", just because his brother gave his brother a nickname "Ding", the two brothers went to court and asked the government to give them a right and wrong. The government often has a headache, and some litigants always exaggerate when reporting cases, only to find that they are trivial matters. Sometimes farming is urgent, and ordinary people are willing to "abandon their homes and businesses, make false claims and make lawsuits" for some trivial matters. They really fell in love with litigation and went to court for litigation. It can be seen that in the Song Dynasty, the cost of going to court at that time should not be very high. The government of Song Dynasty promulgated a large number of laws and regulations to regulate important civil acts, including marriage, divorce, adoption and inheritance. Moreover, all the laws and regulations on land property transaction and inheritance are precise and complete, but only a few have been officially handed down in the end, which can only be seen in some cases of that year.
People in the Song Dynasty liked to litigate, which naturally led to a very prosperous business for litigators. In the historical materials written by traditional Confucian scholars, the images of litigants are the same, and they are a group that has been severely criticized. They are often accused of "gossiping, instigating litigation and profiting from it", and even called "litigant ghosts" and "litigants". However, in the book "Clear Judgment", we see a more vivid image of a litigator in the Song Dynasty. Generally speaking, they are educated, relatively rich, familiar with local officials and the process of government affairs. Although the traditional law prohibits the profession of litigation lawyer, the public has a demand for its services, and the existence of this group has always had a market.
The living conditions of litigants are also very different. Some of them have to "lie down" in front of the government on their own. When they know that someone has been summoned for questioning, they will quickly find them before the business trip and sell them services. In order to prevent the client from being robbed, some "all-rounder" litigators have to put on an all-out martial arts performance in front of the client's house. It is really not easy to make some money. However, some litigators live a much more respectable life. They are usually influential local leaders in the city. When people are in legal trouble, they will come to the door for help. Although the litigators in the Song Dynasty did not have the status of contemporary western lawyers, as the power to provide litigation assistance in ancient Chinese law, it was also a phenomenon that could not be ignored in the traditional culture of China.