I would like to ask the legalists' legal thoughts and characteristics in the dispute over etiquette and law caused by the reform and revision of laws in the late Qing Dynasty.

On March 11th, the 28th year of Guangxu (1902), the Qing government issued a decree to amend the law, and then ordered the establishment of a museum to amend the law and appointed the Minister of Justice. At that time, Shen Jiaben, assistant minister of the left punishments department, was appointed as the minister of law revision, presided over law revision affairs, and sent U.S. Secretary of State Wu, who was familiar with European and American laws, to assist in law revision. Under the auspices of Shen Jiaben, the Qing court sent personnel to Europe, America and Japan to inspect the legal system. Shen Jiaben said: "I was ordered to amend the law in order to make clear the unimpeded implementation of legal rights, especially considering things and choosing the good." . ..... After inspecting the beginning of Japanese legal reform, he sent people to France, Britain and Germany for many times, adopted the excellent theories of western European legal circles, imported them into Japan, and then called all the leaders to compile the whole code. Under this understanding, the principle of legalism with the aim of "learning from Chinese and foreign countries, learning from ancient and modern times", "model power" and "5" has also been basically established. In the thirty-second year of Guangxu (1906), Shen Jiaben and Wu, ministers of law revision, formulated the first law in the process of law revision, which was also the first one-way procedural law in the history of China. Although the Criminal Civil Procedure Law is compiled by combining punishment with people, it is strictly different from the traditional old law. After the law was submitted to the Qing court, the Qing court ordered provincial governors to "observe the situation and carefully study whether there is any deviation, that is, analyze the article and give full play to it according to the facts." "However, legislators never imagined that when the law came out, it was almost unanimously refuted by governors and generals everywhere. For example, Lin Juvenile, Governor of Guangxi, said: "There are still difficulties in compiling new criminal and civil procedure laws in Guangxi. Cover vulgar and stubborn people, rely on the law to control driving, and smell it as a favor. If the new law is promulgated, it will be exaggerated, not enough for external treatment, and there will be no infighting at the beginning, and the next department will know. " (7) Yuan Shikai, governor of Zhili, said: "There are several new criminal and civil procedure laws, please reconsider. "Being Zhang Zhidong is the most violent refutation of the new law, and he completely denies the criminal and civil procedure laws in the draft of the new law. For example, the father and son are not rich, men and women are equal, the lawyer system, the jury system, the abolition of the comparative law, and the provisions on the time limit for complaints were all refuted one by one, and then this new law was abolished by the Qing government. This is also the beginning of the "debate on etiquette and law." It can be said that the revision of the law in the late Qing Dynasty was accompanied by the "debate on etiquette and law" from the beginning. The criticism of the Criminal Civil Procedure Law directly contributed to the formation of two schools of ethics and legalism in the legal reform in the late Qing Dynasty, which led to a long-term "dispute over etiquette and law". Although the Criminal Civil Procedure Law was stillborn before it was published, another influential code, the Great Fresh Criminal Law, was promulgated. Because the new criminal law embodies the spirit of the separation of law and ethics, this code is inevitably attacked by the ethical school headed by Zhang Zhidong, and the "dispute between ethics and law" has entered a climax stage. The focus of the debate between the two sides is whether it is necessary to determine whether adultery without husband and children and grandchildren violate religious order constitute crimes, whether the provision of "nominal crime" should be retained or abolished, whether "keeping relatives" should be included in the criminal law, and whether children and grandchildren can exercise the right of legitimate defense against their elders. Legalists represented by Shen Jiaben, Wu and Yang Du had a heated debate with Confucianism represented by Zhang Zhidong and Lao Naixuan. 1. Confucianism criticized the new criminal law. The Confucian school thinks: "China has always attached importance to regularity, so the legislation is particularly serious because of its unreasonable name. "Therefore, the clause" named practice, righteousness is crime "is greater than ethics, which is the root of traditional ethics, so it cannot be ignored in the new criminal law. As for "supporting relatives", Confucianism believes that this is an important way to promote "benevolent government" and encourage filial piety, and it cannot be excluded from the new law. Regarding the issues of "rape without a husband" and "rape of relatives", Confucianism believes that "rape of relatives" is a problem of "committing a great crime in ethics, so the old statutory crime is extremely serious" (10). The new criminal law should not only respond, but also make special provisions. As for "children and grandchildren violate religious orders", Confucianism advocates that "children and grandchildren have the right to be punished by grandparents and parents, which is really the normal track of filial piety". ⑾ On the question of whether children and grandchildren can exercise the right of self-defense against their elders, Confucianism believes that according to China's traditional ethics, "every parent exists in the world", and children and grandchildren can punish their parents and grandparents like Shun Di, and there is no so-called "self-defense". 2. The response of legal school to Confucian criticism. Legalists represented by Shen Jiaben resolutely refuted the criticism and criticism of Confucianism. Shen Jiaben said in "Notes on Learning Books and Learning Labor in the Draft of the New Criminal Law": "When compiling the transcript of the judgment, it should be explained in the crime of false accusation, and there is no need to make another article. ""(sin keeps relatives) The ancient law of raising innocent people ... is worth discussing and discussing here. If this law is not included in the draft, it does not seem to violate moral norms. "(Relative rape) this kind of animal, solid lovely ethics, but, for personal evil, harm to society, the old law is too strict. ..... Three-level fixed-term imprisonment is roughly equivalent to exile in the old law, but it seems too wide. It should be stated in the judgment, and there is no need to separate one. "⑿" (children and grandchildren violate religious orders) is a matter of education, so it is necessary to run a work-study school and so on, and use macro education. There is no crime, and it does not have to be stipulated in the criminal law. A woman without a husband commits rape, which is not a crime in European law. ..... This matter is related to corruption, so don't try to educate it, and don't put it in the criminal law. Confucius said:' Controlling Qi with punishment' and' Governing Qi with courtesy' are two different things. In Qi Li, there are many facilities that can be restricted unless they are announced in the air. Later generations don't talk about education, and punishment is a service. Isn't that what saints mean! " [13] It can be seen that the core of the debate between the two factions is whether to uphold the traditional spirit of the old law of "combining etiquette with law, and making the ceremony long and the punishment heavy, and making the punishment clear". Or adopt the spirit of western France with western bourgeois humanism as the core and freedom, rights, equality and human rights as the value orientation. The local ministers of all provinces unanimously opposed the integration of the spirit of western law into the new law, which led to the loss of etiquette spirit. They believe that the "Three Cardinals and Five Permits" is the foundation of China for thousands of years and should not be easily abandoned. Ethics can be abolished, the new law is feasible, ethics cannot be abolished, and the new law is not feasible. Right and wrong cannot coexist, and etiquette must be consistent. [14] Confucianism has been clinging to the "etiquette" and constantly putting pressure on legalists, demanding that the Qing court rewrite the "Big Fresh Criminal Law". Under the intervention of the central government of the Qing court, the Legalists were forced to make concessions, and Shen Jiaben resigned as the minister of law revision, losing the trust of the Qing court. The "dispute over etiquette and law" ended in the failure of legalists. Some scholars believe that this kind of failure is doomed, because legalists accepted western theories, simply "adopted" western legal values, actively carried out legal reform and revision, attempted to improve legislation overnight, and did not localize the legal culture. The author thinks this view is still debatable.