How to make China's criminal law Confucian?

Are you writing a paper? The following is for reference only. I hope it helps you. Confucianism was born in the Spring and Autumn Period and the Warring States Period before Qin Dynasty. It is the pearl of Chinese civilization and wisdom, constitutes the core of China traditional culture, and is also the theoretical basis for maintaining feudal monarchy. With the emergence of a hundred schools of thought, Confucianism and Legalism have made great progress, experienced mutual opposition, struggle and integration, and finally formed a governance model in which Confucianism embellishes politics and Legalism supports politics. These ideological trends have correspondingly influenced the evolution and reform of realistic legal policies. Here, we will explore the origin of this legal change-Confucianism of criminal law in Han Dynasty, further analyze the profound historical reasons contained in this province, grasp its occurrence and development process, and understand its historical significance in a deeper level. First, introducing ceremony into the law and Confucianism (1) introducing ceremony into the law. 1. Confucianism fundamentally denies that society is unified, and believes that if people have wisdom, stupidity and morality, society should have a division of labor. "Gentlemen work hard, villains work hard" 0 1 is such a situation. Society should also be divided into high and low; In the family, there should be corresponding differences in intimacy, respect and seniority. Everyone's position and behavior in society are determined by rank and rank, and their position and behavior in the family are determined by rank, seniority and closeness. Two kinds of differences are indispensable to maintain social order, and "ceremony" is a tool to maintain this social difference. "Ceremony, the friendship between father and son; You are noble and unworthy because you don't. " Legalists don't deny or object to the distinction between the superior and the inferior, but they think that these differences have nothing to do with governing the country, are irrelevant, and even hinder it. They pay attention to the maintenance of law and political order, and believe that the reward and punishment of a country's governance depends entirely on an objective and absolute standard, which cannot be different from person to person. "Sages serve the country, and they are rewarded, punished and taught" [1]. In a word, Confucianism pays attention to the difference in rank, so it is inevitably dominated by different, cumbersome, individual and personal behavior norms; Legalists want to use unified and simple laws to bind the people of the whole country, focusing on unity, so they advocate the rule of law and oppose the division of rites. 2. Morality and Punishment Confucianism needs a tool to maintain social order and etiquette, so that everyone can accept etiquette without violating discipline. At the same time, they believe that no matter whether people are good or evil, they can be influenced by the power of moral education. The most thorough, fundamental and positive way to make people feel good and ashamed without evil is the role of moral virtue, and "shame and dignity" can never be done by law. Legalists, on the other hand, stand in the opposite position to Confucianism, denying that society can be maintained by moral education, and it is even more impossible to transfer social atmosphere by one or two people. Oppose the way that there is no rule of law to govern people and politics is forgotten. They often make laws by rules, thinking that subjective judgments are different, and legalists mainly pay attention to the role of punishment. 3. Courtesy into the law Confucianism regards "courtesy" as the code of conduct for maintaining social order, while Legalists regard "law" as the code of conduct for maintaining social order. The confrontation between Confucianism and Legalism has been described above. But the two are not irreconcilable, and this is not the case. With the development and progress of various social ideas, the two have merged with each other, resulting in the situation of "entering the law with courtesy". The main reasons are as follows: academic factions have deliberately converged from complex to simple, and various ideas have also been absorbed in academic circles; From the perspective of system design, the dispute between Confucianism and law has also lost its meaning; After the scholar became an official in the exam, he could not help but understand the law, and he could gradually eliminate the differences between them. These social trends have strengthened the deepening of this "introducing ceremony as law". (2) Confucianization of the law The so-called Confucianization of the law refers to injecting the spirit of Confucianism into laws and regulations, so that feudal laws have the nature of moral legislation, that is, Confucianism is used as the guiding ideology and basic principle of conviction and sentencing in legislation, legal notes and judicial practice. Generally speaking, Confucianism is carried out in the whole process of legislation and law-abiding by the way of "introducing classics into prison" and "introducing rituals into the law", making Confucianism the foundation of various legal departments and gaining legal effect and authority. On the surface, it is a punishment for the Ming Dynasty, but in essence it is a question of how to write the essence and ability of etiquette into the law, in other words, how to turn a unified law into a divided law [2]. Second, the background of Confucian criminal law in Han Dynasty (1) The social background of Confucian criminal law in Han Dynasty. In 207 BC, the peasant uprising overthrew the rule of the brutal Qin Dynasty. After several years of Chu-Han War, Liu Bang was able to unify the world and establish the Han Dynasty, known as the Western Han Dynasty in history. In the early dynasty, faced with the situation of economic depression, empty treasury and refugees helping the poor, how to get rid of the predicament, restore the economic perfect system and establish a stable country became the primary problem. The ruling choice of the Han Dynasty focused on rebuilding social productive forces, and Qin bamboo slips were not far away. The painful lesson of "painting in times of trouble, laughing at the world when you die" [3] made the rulers of the early Han Dynasty choose "doing nothing" after 70 years of social recovery, productivity development and social wealth accumulation. These have also led to some illegal phenomena, such as the connivance of local strongmen to the law, the political desire of clan nobles to annex land and curb expansion, the self-respect of princes and princes, and the danger that local forces pose a threat to the central government. However, all these are beyond the endurance of "inaction", and a new theoretical thought is coming out. If we only rely on the thoughts of Legalists, considering that the tragic lessons of the demise of the Qin Dynasty cannot be repeated, the rulers need a means between Confucianism and Legalism to maintain their rule. Therefore, Emperor Wu of the Han Dynasty put forward the word "the courage of a man". On the basis of the unified thought in Spring and Autumn Annals, Dong Zhongshu put forward the strategy of "ousting a hundred schools of thought and respecting Confucianism alone" after careful explanation, and demanded that "moral education should be supplemented by punishment". This theory was adopted by Emperor Wu of Han Dynasty. After a short silence in Qin dynasty, Confucianism in pre-Qin dynasty was chosen and given new content by Han thinkers, and re-entered the historical stage. At the end of the Western Han Dynasty, social contradictions were acute, and Wang Mang, a consort, usurped the throne and established a "new" dynasty. However, its brutal rule lasted only 17 years and was overthrown in AD 24. The regime was seized by Liu Xiu, known as the Eastern Han Dynasty in history. The laws of the Eastern Han Dynasty basically followed the rare old laws. At first, the new ruler was based on the power of peasant uprising in the late Western Han Dynasty. He once "saved the criminal law", solved the mystery of Wang Mang's period, belittled the Chinese law, eased class contradictions, issued imperial edicts many times, liberated and prohibited the mutilation of handmaiden, and abolished the cocoa law. After several generations of changes, the Confucianism of law has been further deepened. (II) Ideological Background of Confucian Criminal Law in the Han Dynasty In the early days of the establishment of the Han Dynasty, the rulers practiced the idea of learning from Huang Lao and doing nothing, which had the spiritual characteristics of quietism, returning the people to rest in peace and binding laws and regulations. Under the guidance of his theory, the rulers formulated the policy of "rest and recuperation" and "following the will of the people without disturbing". However, compared with the Qin dynasty, the study of Huang Lao in the Han dynasty still has new characteristics. It absorbed Confucianism, praised "the ceremony of benevolence and righteousness", raised it to the position of paying equal attention to Taoism and law, revived the neglected and excluded Confucianism, and paved the way for the Confucian-based political and legal thought in the middle of the Western Han Dynasty. With the development of society and the accumulation of material wealth, complex social contradictions appeared in the middle of the Western Han Dynasty. Emperor Wu of the Han Dynasty attached great importance to Dong Zhongshu and advocated "ousting a hundred schools of thought and respecting Confucianism alone" to meet the needs of rule. In this period, Confucianism was the main idea, supplemented by legal thought. He combined Confucianism with Yin and Yang thought to make it metaphysical. When explaining the relationship between "virtue" and "punishment", it is considered that "virtue" is yang and "punishment" is yin, and the relationship between them is "torturer, Tokunosuke, the help of yin and Yonosuke". First, education with moral ceremony is ineffective, then supplemented by punishment, and morality and punishment are combined. At the same time, he combined the Confucian "five permanents": benevolence, righteousness, propriety, wisdom and faithfulness with the legalist's "three cardinal guides" and interpreted them more systematically as "the monarch is the minister's cardinal guide, the father is the son's cardinal guide, and the husband is the wife's cardinal guide". Bringing Confucian family ethics and ideal social form into the category of ruling ideology will legally affect Chinese law, and then legalize and institutionalize Confucianism. The Eastern Han Dynasty basically followed the legal system and thought of the Western Han Dynasty, and at the same time extended and deepened some contents accordingly, which can be regarded as the summary stage of Confucian criminal law in the Han Dynasty. White Tiger Yi Tong summarizes the core of the ideological system of politics and law-three cardinal guides and six disciplines, that is, "What are the three cardinal guides?" Refers to the monarch, father and son, husband and wife; Six-year history refers to father, brother, clan, uncle, teacher and friend "[4]; ""What is discipline? Outline, evidence, discipline and reasons. The big one is the key link, and the small one is discipline. So up and down, tidy and humane "[5]. Another phenomenon that can't be ignored is that Confucian scholars in the Eastern Han Dynasty actively participated in the study of law, and law and sentences prevailed, and Confucian classics were closely related to law. Laws and regulations became an important learning content in people's daily life in the Eastern Han Dynasty. Such thoughts and behaviors further strengthen Confucianism. Third, the historical process of Confucian criminal law in Han Dynasty; The Confucianism of criminal law in Han Dynasty began in the period of Emperor Wu of Han Dynasty, which was the beginning of Confucianism becoming the dominant ideology in the history of China, and started a trend of legal reform that almost ran through the whole feudal society. But as far as the Han Dynasty is concerned, the process of Confucianism can be roughly divided into two stages: the middle and late Western Han Dynasty and the Eastern Han Dynasty. Compared with the achievements in the middle and late Western Han Dynasty, they are more brilliant. Although there was no more breakthrough in the Eastern Han Dynasty, the summative theoretical integration and interpretation of the law played an important role in enlightening later generations. (1) Confucian criminal law in the middle and late Western Han Dynasty 1, Dong Zhongshu put forward the theory that "heaven and man feel, and virtue is the main punishment, which was accepted by Emperor Wu of the Han Dynasty. His thoughts have profoundly influenced the decision-making of governing the country, guided the general direction of the law, and guided the legal system to further complete the transformation of Confucianism and Legalism, which is obvious in criminal legislation: (1) The theory of "the feeling between heaven and man" puts monarchical power. Therefore, the supremacy and authority of imperial power are inviolable. Otherwise, the criminal law will give the most severe sanctions. Any violation of the personal safety of the emperor and the rule of imperial power is a felony. The main norms of crimes endangering centralized system are: membership in the party, attaching interests, breaking the law, trespassing, crossing the border, and omitting the province. The crimes endangering the absolute monarchy mainly include: bullying the weak and fearing the hard, bullying the weak and fearing the hard, ignoring the false, criticizing the imperial edict to destroy the former emperors, complaining about slandering politics, leftism and abolishing the imperial edict. The crimes endangering the dignity of the emperor and the safety of the Yellow Emperor are: disrespect, disrespect, and entering the palace gate. Crimes against feudal rule include: disobedience, drinking, hiding first, eating and drinking, knowing everything you see, and so on. (2) In addition to these deified imperial powers, the provisions of morality and law are also manifested in the integration of etiquette and law, which directly shows the behavioral norms and value orientation of the whole society in the form of law: the division of age and the provisions of criminal subjects in the Western Han Criminal Law are different. Age is divided into three stages, namely childhood, adulthood and old age, and different courtesy is given. Only adults who have not entered the old age have the ability of criminal responsibility; According to different subjects, the assistance system for the sick and disabled is stipulated: the elderly are divided into two kinds of assistance systems: over 80 and over 70, and the minor weak are divided into three different assistance standards: under seven years old, under eight years old and under ten years old. These regulations are the embodiment of the legal values of Confucian idealized social state. Kiss each other first to hide [7] principle. This truth was first seen in "the father is the son, and the son is the father, straight in it." Specifically, three generations of blood and husband and wife can conceal criminal acts from each other, except for rebellion and rebellion, and criminal punishment can be mitigated or exempted. Confucian family, clan and ethics are clearly expressed here in the form of law, and the ethical relationship between individuals and families has directly evolved into a legal means of national social management functions. Private prosecution first is a situation in the original conviction [8]. The original judgment and conviction means that in the process of conviction and sentencing, not only according to the criminal behavior and its results, but also paying more attention to the subjective psychological motivation of the perpetrator, judging whether the crime is committed according to its good or evil, and judging according to the severity of the criminal law. In the laws of the Han Dynasty, remorse and punishment first have the elements of Confucianism emphasizing introspection and self-correction, which embodies the legal value orientation caused by Confucianism's participation in legislation, that is, the teleology of education rather than the teleology of punishment. [9] Noble officials should first ask whether they are guilty or not. In the Han Dynasty, the prince, his children and officials with salaries above 300 tons enjoyed the privilege of punishing the guilty first, and all cases were generally commuted or exempted. This is also based on the Confucian theory that "the monarch treats his ministers with courtesy, and the ministers treat him with loyalty", which is the legal expression of the reward and punishment system of the principle of monarch and minister and the social hierarchy of Confucian scholars. In terms of legislative technology, there are also provisions to distinguish between "intentional" and "non-intentional" [10], which is rooted in the difference of mind and nature that Confucianism pays attention to. The design of criminal names is based on the Confucian theory of "three cardinal guides and five permanent members". (2) The rule of justice is another prominent feature of Confucianism in the legislation in the middle and late Han Dynasty. In the process of punishment, choose autumn and winter execution and justice. This is the legal expression of Dong Zhongshu's neo-Confucianism's theory of absorbing Yin and Yang. He combined the joy, anger, sadness and joy of human beings with the spring, summer, autumn and winter of nature, compared the immobility of human limbs with the laws of seasons, and finally made a punishment and a derby of Yin and Yang. Yin begins in autumn, Yang begins in spring, and the execution in autumn and winter is self-evident. This theory of execution in autumn and winter is not only reflected in theory, but also institutionalized and legalized in fact, which has become the norm guiding the judicial system, and this is also the earliest origin of "autumn trial" in later generations. (3) The spring and autumn verdict [1 1] is also called "just verdict". With the penetration of Confucianism into the law, a trial mode guided by Confucian classics appeared in the mid-Western Han Dynasty, which is called Spring and Autumn Trial, that is, in the trial of criminal cases, if there is no explicit provision in the law, Confucian classics are used as the basis for conviction and sentencing. The formation of this theory is related to the period of Emperor Wu of the Han Dynasty. Under this influence, legal judgments are also influenced by traditional mainstream etiquette and cultural spirit, and the traces of Confucianism are further deepened. (II) Confucianism of Criminal Law in the Eastern Han Dynasty Due to the special historical background, criminal justice in the Eastern Han Dynasty mostly followed the legal system of the Western Han Dynasty. So it has many similarities with the Western Han Dynasty, but its characteristics are also obvious. The summary arrangement and the role of connecting the preceding with the following are also worthy of recognition. These long-lasting Confucian processes in the Eastern Han Dynasty are all the results of the improvement and deepening of the previous generation. The main performance is as follows: 1. The classic formulation of "White Tiger Yi Tong". In the fourth year of the founding of Emperor Wu of the Han Dynasty, a meeting was held in Baihuguan, Gong Bei, Luoyang. All the famous Confucianists were present at that time. At the meeting, the interpretation and application of Confucian classics such as the Five Classics were discussed, and the conclusion was sorted out by Ban Gu. This book refers to the social system, local conditions and customs, unifies thoughts with almost codified language, refines the conclusions of Confucian classics, standardizes people's thoughts and behaviors, and expounds the core "three cardinal guides" and "six disciplines" [12]. These indicate that the Confucian legislative thought was further consolidated and strengthened in the Eastern Han Dynasty. 2. Universality of laws and judgments. Another notable feature of the Confucianism of criminal law in the Eastern Han Dynasty is that Han Confucianism actively participated in the study of jurisprudence, and the study of chapters and sentences prevailed, and the study of Confucian classics was closely related to jurisprudence. The appearance of this phenomenon has led to the increase of private annotations. However, most of these notes are learned Confucian disciples. From Zhang Dulu in the Western Han Dynasty to the spectacular in the Eastern Han Dynasty, there are mainly more than ten Confucian chapters and sentences such as Uncle Sun Xuan, Guo Lingqing and Zheng Li. If these civil note laws meet the requirements and regulations of the rulers at that time, they can be used by officials to judge cases, which has strong legal use value. The appearance of these microscopic phenomena shows that the legal Confucianism in the Eastern Han Dynasty has been further deepened from legislative ideas to legal provisions to the interpretation of legal provisions. Confucianism has been sublimated from macro to micro, from abstract to concrete, from theory to practice, and it has also summarized the Han Dynasty and paved the way for the perfection of later generations. Third, the historical significance of Confucian criminal law in Han Dynasty. Confucian criminal law in Han Dynasty was the beginning of Confucian criminal law in feudal society of China. Since then, all generations have used etiquette. In the feudal society thousands of years later, although there were priorities, the practice of "three cardinal guides and five permanents" always copied itself as the core of the criterion, and "introducing rituals into the law" has not changed. These are enough to see the far-reaching influence of Confucian criminal law in Han Dynasty. Confucian criminal law in Han Dynasty found the ideological and political foundation for the long feudal society in ancient China, maintained the perfection of the feudal system in China, further guided the progress of the social system, and gave people a permanent code of conduct that was deeply rooted in the hearts of the people. Whether it is the "Three Cardinals and Five Permanences" or the "Heaven of Yin and Yang", it has gone through several generations and lasts forever. These established the legal guiding ideology of China, and also established some basic principles for the law. Coupled with the process of "setting prison in the Spring and Autumn Period" and "introducing rites into the law", the basic political and legal thoughts of Confucianism have been integrated into the law, forming a legal concept with Confucian national spirit. The process of Confucianism in these thoughts also contributed to the Confucianism of the judicial team in the Han Dynasty and later generations, which was conducive to improving the moral quality of feudal officials, maintaining social order to a certain extent, promoting the progress of ancient jurisprudence, alleviating the intensification of class contradictions to a certain extent, creating feudal events to a certain extent, and realizing the development and perfection of feudal rule [13]. But while seeing these advantages, we should also know the class attribute behind them. In the Han Dynasty, the Confucian criminal law affirmed the inequality between people in law, with strong class discrimination, and also affirmed the legalization of human exploitation to a certain extent. In the final analysis, it serves the powerful rulers who gain political power, which is the essence of Confucianism in China and France. Only by recognizing these clearly can we analyze and grasp the historical significance of this Confucian trend of thought more comprehensively and evaluate its historical merits and demerits more accurately.