Song dynasty strengthened the rule over the people's thoughts, Neo-Confucianism rose, and reformists opposed Neo-Confucianism appeared.
Section 1 The Rise of Neo-Confucianism and Its Influence
I. Rise
1. Neo-Confucianism is an academic trend of thought, which occupied a dominant position in the late feudal society.
2. "Reason" is the subject of the universe and the origin of all things.
3. Han Yu ("orthodoxy") and Li Ao ("evil nature") originated in the middle and late Tang Dynasty.
4. Cheng Yi is the founder: Li, Qi, Tao and Qi.
5. Zhu's inheritance of Cheng system was a reflection of feudal society, economy and politics at that time, and it was the result of the ideological struggle and integration of Confucianism, Taoism and Buddhism.
Two. affect
While perfecting the feudal orthodoxy, it also summarizes and perfects the legal thought of the feudal orthodoxy and completes the philosophy of the orthodox thought. Man is also a combination of reason and qi. In human nature, reason is "the nature of heaven and earth", while qi is "the nature of temperament". Reason exists in qi, but reason and righteousness dominate and dominate qi, and qi contains human desire, which is dangerous and will make people do evil. No saint or monarch wants to be selfish. The monarch is the spokesman of human justice, and he acts on behalf of heaven. Whoever violates the monarch is against justice. Rulers' ruling measures: morality, courtesy, politics and punishment, the fundamental purpose is to eradicate people's desires and restore justice (preserve justice and eliminate people's desires). Punishment has limited effect, and ultimately it depends on enlightenment.
The influence on the legal thought in the late feudal society;
Because punishment is said to be a just means of "upholding justice and eliminating human desires", rulers are no longer taboo about severe punishment and harsh laws.
The feudal ethical code, after being put on the cloak of Neo-Confucianism theory, is more confusing and deceptive, which seriously imprisons the spiritual activities of working people, suppresses the concept of rights of Chinese people and curbs the development of commodity economy.
Section 2 Zhu
I. Political reform and reform propositions
It is believed that the Song Dynasty has fallen into crisis and must be reformed. The guiding ideology of reform is strictness, benevolence and righteousness first. The fundamental method of reform is to change people's minds. First, we should change the monarch's thinking and limit his arbitrariness.
Three suggestions: strengthen the power of prime minister and remonstrator; The monarch should consult with ministers and listen to their opinions when legislating; Restrict the authority of the monarch by strengthening local power. But the most fundamental thing is to strengthen the monarch's personal moral cultivation.
2. Respect for morality, courtesy, politics and punishment is the beginning.
This paper expounds the internal relations between morality and etiquette, politics and punishment, probes into the external relations of the four, and puts them into the track of "preserving righteousness and destroying human desires"
Morality: psychological and moral quality; Ceremony: moral norms and ethical concepts, including the implementation of ethics and education; Virtue is the foundation of courtesy, and courtesy is the guarantee of virtue.
Politics: legal system and code of conduct; Penalty: a penalty measure, a coercive force that enables the law to be realized; Politics is the standard of punishment, and punishment is the guarantee of political realization.
As a ruling method, they are all products of natural principles, which are essentially the same, but there are differences in the specific application process; Moral courtesy is the foundation, and political punishment is the purpose; The four are interdependent and form a cycle.
The thickest gas: guide it with virtue; Thick; Li; Thin; Guide it with politics; Thinnest: Qi was punished (but still nauseous)
3. Be strict, but be lenient.
To suppress the peasant uprising and consolidate the ruling class; There is no need for leniency in the process of law enforcement; The lighter the punishment, the easier it is for people to make trouble; Reasons for advocating light punishment—
(1) Look at the problem one-sidedly: it is more pitiful to know that the prisoner is pitiful, and it is more pitiful to know that he has been hurt.
(2) At that time, law enforcers were mostly bewitched by Buddhism.
(3) Law enforcers misinterpret the original meaning of grace punishment, which means that the guilty can be punished, the innocent can not be punished, and the crime is light.
Principle:
(1) reflected in the punishment, he advocated the restoration of corporal punishment ("mutilating limbs, killing life") and enhancing the deterrent power of punishment.
(2) it is embodied in improving the efficiency of litigation and the quality of trial, and selecting and training judicial officials.
(3) Another reflection in the trial is the strict maintenance of the feudal hierarchy, and the traditional rule of virtue is difficult to work.
Saving justice and destroying human desire;
(1) The ruling class should be the chief culprit in the development of rational homicide. Neo-Confucianism does not count all material desires as human desires ("People who have enough to eat are naturally justified. Ask for food, people want it ")
(2) The development of rational homicide is not only for workers, but also for rulers (rulers strengthen their self-cultivation and take the road of being sage inside and king outside).
(3) Neo-Confucianism's theory of the desire of heaven and man is of positive significance for enhancing the personality of China intellectuals and cultivating the integrity of civil law ("a scholar must do whatever he wants and restore the desire of heaven and man before he can study").
Section 3 Huang Zongxi
First, the background (enlightenment thinkers in the late Ming and early Qing Dynasties)
A turbulent society; The capitalist relations of production sprout; The emergence of the citizen class has formed a new force; Personal attachment is weakened, and citizen literature is produced; Huang Zongxi's anti-feudal legal thought is relatively complete and contains more democratic thoughts; Father joined Lindong Party (satirizing political events and judging figures); The case of Confucianism in Ming Dynasty, the record of Ming Yi waiting for an interview.
Two. Legal thought
1. Oppose absolute monarchy and advocate limiting monarchical power.
(1) "It is a great disaster in the world, and you are a gentleman": from the divine right of monarchy, it is demonstrated with the hazy thought of natural human rights; Everyone has a selfish nature, so there are many public hazards in the world that nobody cares about, so everyone chooses a monarch. The purpose of the monarch is to promote public interests and eliminate public hazards. Later, the monarch took all the benefits of the world for himself, all the harm to people in the world for himself, and regarded the world as his own big industry, which also benefited future generations. In fact, this is a view that monarchy is granted by the people.
(2) "The world is the mainstay, and the monarch is the guest": Three generations ago, the relationship between the monarch and the people was the same, and the monarch was respected by the people for his hard work. Later monarchies were regarded as great industries rather than responsibilities, and monarchies no longer cared about public interests but how to meet their own needs by consolidating their position. At this time, the relationship between the monarch and the people has become a situation of "the monarch is the mainstay and the world is the guest", which violates the way of establishing a monarch.
(3) Measures to restrict monarchical power:
(1) The monarch and his subjects are subject to * * *, and their responsibility is to govern the world. The relationship between the monarch and his subjects is based on the needs of the people, which is different from the father-son relationship based on blood relationship. They oppose stupid loyalty and responsibility based on governing the world. The monarch and his subjects should be teachers and friends, and they should be brave enough to make mistakes of the monarch.
(2) Reset the post of Prime Minister, share sovereignty with the monarch, and have equal status with the monarch. The Prime Minister has his own administrative office, which is the Chief Executive. Strengthen the power of the prime minister to restrict the absolute monarchy, and the prime minister will pass on the sages (the monarch will not pass on the sages). The prime minister who preaches sages can be used to restrict the monarch who does not preach sages.
(3) School deliberation, the school not only cultivates talents, but also is a "tool to rule the world", forcing the school to become the center of public opinion, playing the role of supervising government agencies and expressing public opinion. At the beginning of every month, Tianzi and officials have to listen to the lectures of the dean of the business school. Tianzi and officials are his disciples. The dean of the business school bluntly said that political gains and losses are the same everywhere; The school is actually an inspector group, and some people regard it as the embryonic form of representative system.
(4) Local enfeoffment is conducive to local development, and the county system is conducive to national unity. The combination of the two has increased local power, including military power, financial power, administrative power and personnel appointment and removal power, giving full play to the local independence and making the monarch have scruples and do whatever he wants. The method adopted abandons the tradition of ethical education and restraint of the monarch's heart, and advocates the establishment of a realistic system to solve it; The conception of the future is often consistent with the trend of the times.
2. Replace a family rule with a world rule.
Law is designed for the common interests of all people; Let everyone enjoy the wealth of the world; The law of the world is characterized by "hiding in the world"; A family's way is to hide the world in a basket; For the monarch, no matter how strict the law is, there will still be chaos.
3. There is a cure, and then there is a cure.
The rule of law and the rule of man are organically combined, and the rule of law is the foundation, on which the real rule of man can be produced; This kind of governance is a good law, and legislation for the public is the law of the world; The first problem of governing the country is to formulate a good law that embodies public interests, guarantees people's equal enjoyment of private property and pursues self-interest; It reflects the interests and demands of the civil class in the capitalist period.
4. Advocate the idea of enriching the people, benefiting the people and taking business as the foundation.
Economically, people's private rights and the stability of the national economy and people's livelihood are guaranteed through the legal system. Private property rights are stipulated by law, not natural human rights. To solve the property problem, we must first solve the land problem; It advocates re-establishing the land system, specifically dividing the land in the whole country into five grades according to the quality and distributing it to landless farmers, so that farmers have the tools to make a living; Advocate tax rate reform, so that people who get land will not be in debt and lose land because of high tax rate; Change the vicious circle of tax increase; Advocating to keep only local taxes and land rent; I want to limit the unlimited exploitation of the monarch through the legal system of taxation in order to realize democracy on the land; But regardless of operability, this is an improvement of egalitarianism with utopian color.
He was the first thinker in China who proposed taking industry and commerce as the foundation. He believes that the "end" in the ancient "respecting the foundation and restraining the end" is a luxury of emperors, a luxury and a waste, so it is called "end", while industry and commerce are the cause of promoting production, enriching the country and strengthening the people, so they are all fundamental and require the government to let industry and commerce go on the road.
3. Distinctive characteristics of the times
1. The criticism of feudal monarchy broke through the concept of natural economy, starting from the concept of commodity economy (the exchange of underdeveloped personal attachment to the exchange of developed egoism).
Criticizing feudal rule from the concept of personal attachment can't actually break through the natural economy, which is a heretical thought of feudalism. His thought is the ideological reflection of the budding capitalism. He criticized feudal rule from selfish ideas, broke through the concept of natural economy, and showed the characteristics of democratic enlightenment.
2. Anti-traditional Confucianism, believing that selfishness and mercenary are the innate nature of human beings; Publicly declare that human nature is selfish, and regard selfishness and interests as weapons of discussion; Human nature is selfish, so are saints and emperors. The monarch is a public servant because he only protects the public interest on the basis of everyone's self-interest. The irrationality of absolute monarchy is that the selfishness of monarch hinders the self-interest of ordinary people. A reasonable statement is that "the world is public and the monarch is the guest", the ideal legal system is the law of the world, and the ideal economic system is the development of agriculture, industry and commerce. You are not a monarch, and you are not a savage.
3. Both the criticism of feudal monarchs and the legal system and the description of their ideal society are praises to the ancient times (three generations) to show that their thoughts are full of illusions; However, it must be pointed out that he praised the ancient times, not the retro. His retro thought is only a means of denying reality, and it is actually a kind of "transformation of ancient times". This phenomenon is not surprising until the emerging capitalist forces developed enough to have a decisive impact on the development of ideas in the late feudal society. Although the commodity society in Ming and Qing dynasties was developed, the feudal foundation of two thousand years was intertwined, which made it impossible for the society at that time to provide more things for thinkers. When the content of the new culture itself has not found an independent form of expression, it has to turn to the authority of ancient times and seek innovation in the form of reviving ancient studies. Enlightenment thinkers set their sights on ancient times because there are still many things that can be used by them after the transformation of ancient culture, so they try their best to find and use ancient ideas. On the one hand, they can paint themselves with protective colors, on the other hand, they can be used as flags for calling, uniting and fighting for the people.
4. His thoughts are deeply influenced by China's traditional thoughts, which have strong national characteristics and obvious historical limitations.
The center of his legal thought is to legislate for the public. Subjectively, he looks at the problem as the representative of all the people in the world, putting aside all selfishness. However, the significance of democracy in his legal thought is not exactly the same as that of modern western democracy. In the rule of the people, the people's power is very limited. Although he also advocated that people have the right to be tyrants and rulers must understand public opinion, he never mentioned representative system, political parties and elections. Although it emphasizes the rule of law and a kind of politics similar to constitutionalism, it still puts the responsibility of implementing the fundamental law on the people, which is exactly the same as the traditional Confucian scholar-officials. Reform is carried out from top to bottom, just like Confucianism.
The progressive trend of thought lacks a solid ideological foundation.
The fourth quarter Kang Youwei reformists
First, the theoretical basis of reform
1. On Ram III: Three stages of human social development (according to troubled times; Shengpingshi; Taiping stone) (well-off; Datong)
2. "Evolution": human society will inevitably change from troubled times to peaceful times; According to his estimation, China was in the transitional stage from troubled times to peace, so China should catch up with western society to achieve peace through political reform and reform, and then create conditions for the transition to peace; These three stages can only be gradual; On the one hand, it is necessary to transform the feudal autocratic monarchy system in the Qing Dynasty, and on the other hand, it is against social revolution; The early reform ideas against feudal orthodoxy, that is, "the sky remains unchanged, the Tao remains unchanged" and "the changers remain unchanged", put forward the idea of total change (foreign forces are too rampant, and both Chinese and Western reforms are needed)
2. Advocate constitutional monarchy
The autocratic regime regards the state as private, and one person holds the political power, so it should be replaced by a constitutional state. Reasons for applying constitutional monarchy:
1. In China at that time, only constitutional monarchy could be implemented, but democracy and peace could not be implemented. Constitutional monarchy is suitable for popularizing the world, and democracy and peace are suitable for peaceful world.
2. At that time, the most fundamental problem in China was to oppose taking the country as private and realize taking the country as public. Constitutional monarchy can be realized for the country and the public.
3. Constitutional monarchy and democracy are essentially the same, but the difference is that constitutional monarchy has a virtual monarch. Appreciate the western decentralization system. The reason why western countries are strong lies in decentralization. In legislation, judicature and administration, legislative power is the most important, with special emphasis on the role of parliament. Is there a congress that is regarded as a symbol of openness?
Advocating civil rights but opposing the realization of civil rights through revolution can only be done step by step.
Three. Legal evolution and the ideal of great harmony
Everyone is competitive but gregarious. The sage is not appointed by heaven, but elected by the people to protect things, which is produced with the evolution of society and aims at the public interest. The emergence of law is also divided into three stages: troubled times, rise and peace.
"Gone with the Times" holds that the law changed from protecting the people to suppressing injustice, lost its original meaning, was ruled by the emperor, the people did not fully enjoy public rights, there were laws that discriminated against women and races in society, the punishment was cruel and the trial was slow.
Driven by the world, the social system and laws have been further improved, and the country still exists. However, private property still exists in a constitutional monarchy or a democratic and harmonious society, but all people enjoy public rights and private property rights. Unless absolutely necessary, this right cannot be restricted or deprived, and the aristocratic class still exists. Countries still have their own laws, but criminals are not tortured, the trial is rapid, and there is a defense system (based on western capitalist countries)
In peacetime, there is no country, no emperor, no family, no property, there is only one public government in the world, people enjoy full human rights, the whole world abides by unified public law, there is no crime, people will make mistakes, but they only need education and fines, no travel, no exclusive respect, no competition, no abortion (both yearning for the capitalist system and hoping to avoid its drawbacks).
Cause of the crime: (1) Poverty, and it is advocated that starting from poverty alleviation, we can't deal with it by strict laws. (2) The existence of family relations will lead to litigation disputes such as maintenance and property division, and the existence of husband-wife relations will lead to lust and even criminal offences. (3) The existence of monarchs and titles will lead to competition. (4) The existence of private property will lead to property.
Eliminate the "nine realms": country, category, species, family, wealth, chaos, suffering and boundary.
Since equality between men and women has been achieved, equality and independence between men and women is a natural human right.
Adhere to the constitutional monarchy law and advocate royalism; It plays an indelible role in promoting ideological progress.
Section 5 Sun Yat-sen
I. Combining the rule of law with democracy
Democracy is the core and foundation of politics; The purpose is * absolute monarchy, the establishment of democracy * * * and; The people in feudal society in China were deprived of all their rights, and the Chinese nation suffered an unprecedented crisis because of pleasing foreign countries and betraying the country to the Qing government. The laws of the Qing Dynasty were tools to suppress the people and protect autocracy. The establishment of the national government by the civilian revolution means the establishment of a democratic system, and all citizens have the right to participate in politics. The parliament is composed of members elected by citizens and the president is elected by the people. The Provisional Constitution of the Republic of China declared the demise of feudal system and the emergence of democratic and harmonious system in the form of fundamental law, established the idea that sovereignty belongs to the people and established bourgeois harmony. This is the embodiment of his combination of democracy and the rule of law.
Two. Sovereign constitutional theory
This is the most important content in Sun Yat-sen's legal thought. It was put forward on the basis of summing up the historical experience of the rule of law at home and abroad, combining the western constitutional theory and the reality of China.
1. The Constitution is "the guarantee of people's rights" and stipulates the composition of political power and people's rights.
2. Demonstrate the relationship between the constitution and the establishment of a democratic country. Only with a good constitution can a real country be established.
3. Summing up the constitutions of European and American countries, and referring to China's inherent censorship and procuratorial system, forming the five-power constitutional theory.
Separation of five powers: in addition to judicial power, administrative power and legislative power formed in Europe and America, the right to choose examinations and the right to picket are established; It is believed that the separation of powers will easily lead to parliamentary autocracy.
4. In order to expand direct civil rights, decentralization and decentralization theory are put forward.
Two kinds of power: political power, the power to manage the government, whose main body is the people, including the right to vote, recall, initiative and veto; Governance, enjoyed by the government, is actually five rights. The two are not antagonistic, but unified. The people hold political power in order to establish a government that serves the people. The government exercises political power through the division of functions and cooperation to ensure the people's political power. The division of ownership is the guarantee to implement the five rights.
There are three kinds of people in society: the prophet (ruling power), the hindsight (political power), and the indecisive (only obeying instructions but having no power).
Because governance is above political power, it is often possible to adopt autocracy under the banner of democracy, which is a big defect.
3. Protecting citizens' rights and eliminating social evils by law.
1. Affirms that people of all ethnic groups enjoy equal rights to vote, political participation, residence, speech, publication, assembly and freedom of belief; Emphasize that men and women enjoy equal rights before the law; The National Equality Thought of Five Nationalities (Han, Manchu, Mongolian, Hui and Tibetan)
2. Protect people's personal freedom (prohibiting trafficking in human beings and Chinese workers; Replace the master-slave relationship with the employer-employee relationship)
3. Protect people's property rights ("the weight of property equals life")
4. Advocate the adoption of laws to ban smoking and gambling.
Four. Advocate the establishment of bourgeois democratic judicial system
Emphasize that the judiciary is an independent organ (judicial independence) and judges evaluate it; Prohibition of torture and corporal punishment; There should be no net punishment; Trial level system (four-level and three-level trial level system); Advocate the establishment of a lawyer system to protect the right of defense of the parties.
The reformists are obviously revolutionary Democrats, so their influence is deeper.