After Qin Shihuang proclaimed himself emperor, he advocated "everything depends on the law", [1] thus raising the banner of "rule of law" to manage the world. Until today, the rule of law is also a very attractive proposition, and the legal society is the ideal social realm that people strive to pursue. Did totalitarian emperors practice the rule of law thousands of years ago? What is the rule of law? Is Qin Shihuang's "everything according to law" the rule of law? This will help to understand China's traditional thought of rule of law.
one
In order to understand this problem, it is necessary for us to start with the origin of China law, otherwise it will be difficult to correctly understand the specific connotation of Qin Shihuang's "rule of law".
When it comes to the origin of law, different nationalities have different situations. As far as China's legal system is concerned, it is a special product of China's ethical culture, so the concept and content of our "law" are branded with this culture everywhere.
Before the Warring States Period, there was no concept of "law" in China society. Tracing back to the primitive society, to be exact, in the era of "Five Emperors", it was "virtue" that regulated people's social behavior. The ancient book says: "Five Emperors Use Virtue" [2]; "The way of Yao and Shun is filial piety" [3] refers to this situation. After the end of primitive society, in Xia, Shang and Zhou Dynasties, "courtesy" replaced "virtue" and gradually formed the important principle of "governing the country with courtesy". Why can "courtesy" replace "virtue" to regulate the social behavior of social members at this time? The ancients once said this sentence, which is called "adult gift" [4]. Judging from the news revealed by this sentence, there is no doubt that "ceremony" originated from the hereditary system after the country came into being to ensure the private ownership of power. We think this explanation is very consistent with historical reality.
Since then, in the long historical period (specifically from Xia Dynasty to Spring and Autumn Period), as a special tool to regulate the behavior of social members after the emergence of the state, "ceremony" seems to have played a legal role. However, we say that "ceremony" and "law" are essentially different, and the ancients made a very clear distinction on this point. The ancients explained it this way: "philosophers are forbidden before generals, and legalists are forbidden after themselves." [5] On the surface, although both of them are norms for the behavior of social members, "courtesy" emphasizes the constraints on people's behavioral motives; And "law" emphasizes the restriction on the result of human behavior. Therefore, the former pays attention to the role of education and the self-discipline of actors, while the latter is a social compulsory measure imposed by the state on actors. Therefore, "ceremony" is more similar to the ethical category of "virtue" than to "law". History has proved that "courtesy" really originated from the original "virtue", but after sublating some contents of the original "virtue", it injected unprecedented class content and placed it in the position of national ideology. This is the reason why Xia, Shang and Zhou dynasties are called "a society ruled by courtesy".
People may ask, don't countries like Xia, Shang and Zhou have similar law enforcement methods? That was not the case. On the contrary, in a country with class oppression as its content, it is unthinkable that there is no such coercive means as law. However, as we know, the formation of China state is a road for a blood clan to conquer other blood clans, which is different from the Greek democratic country in which the nobles and civilians in the original clan fought and finally the clan civilians won. The Greeks emphasized the "Constitution" and its human rights, while our initial national laws were mainly all kinds of extremely cruel punishments imposed by the conquerors on the conquered. We have a special name for this kind of punishment-"punishment". The so-called "heavy punishment with a soldier, followed by an axe"; Medium punishment, sawing with a knife, followed by drilling; Fine punishment with a whip. "However, in the Xia, Shang and Zhou Dynasties, due to the principle of' softening China with virtue and intimidating foreigners with punishment' [7],' law' or, more correctly,' punishment' did not become the main tool to regulate people's social behavior in theory. However, a nation accustomed to oppressing other nationalities will sooner or later impose the means of oppressing others on its own people. According to historical records, only in the Western Zhou Dynasty, the rulers trumpeted "being wise to protect our health and being cautious about punishment" [8] and were busy throwing out "nine punishments" and "Lu punishments" to "intimidate the people". Isn't this very telling? Here, we want to emphasize that historically, China's legal system did not protect people's rights from infringement from the day it appeared? Liver? Kang Mumo said that a J nephew was uncomfortable. nbsp
Great changes have taken place in society during the Spring and Autumn Period. In this great change, the traditional "ceremony" can no longer be used to regulate the behavior of social members, so the society is in an unprecedented disorderly state. In the tempering of blood and fire, people are thinking about a problem: how to rebuild social order? To this end, during the Warring States period, various schools competed to throw out their ideas in this regard. Among them, a set of theories provided by Legalism School aroused the special interest of autocratic kings of Qin State, such as Qin Xiaogong and later Qin Shihuang. The starting point of legalist theory is "omnipotence of violence" and "absoluteness of monarchical power". Under this premise, this school advocates that punishment, once an auxiliary means of "ceremony", should be promoted to the leading position of regulating the behavior of social members to replace the "ceremony" that is gradually failing. Legalists call the "penalty" they reformed "law". Although this kind of "law" spares no effort to emphasize "inaccessible, not too expensive and divorced from the law" [9], it is by no means a constitution or a private law, but a military law and a criminal law adapted to the state of the Warring States War. In a word, it is the only tool for autocratic kings to realize the national will by violent means. It can be seen that this kind of "Fa" with China characteristics has penetrated into it since its birth.
two
As we said, Qin Shihuang strongly advocated that "everything depends on the law." However, "everything in the world, big or small, depends on the world." [10] Is there a paradox of "attacking the shield with a spear" in Qin Shihuang's thinking? No, for Qin Shihuang and his followers, the two are not only not contradictory, but also unified. Because Qin Shihuang thought he was the embodiment of "law". He is a legislator, a judge and a ruler. In short, he represents the trinity of national will. Therefore, "everything is in accordance with the law" or "everything depends on the top" is completely the same thing for Qin Shihuang and his followers, and there is no difference at all. For him, "rule by law" means "rule by man" and "rule by man" means "rule by law". There is no antagonism between them. Only from here can we truly understand Qin Shihuang's "rule of law".
It is not surprising that Qin Shihuang was able to embark on the road of "rule of law". Examining the special situation in the Warring States period, we know that although a hundred schools of thought contended at that time and put forward various political theories, by the end of the Warring States period, the fierce struggle between the "seven heroes" clearly told people that only the "rule of law" could save troubled times. Therefore, at this time, "the rule of law" has almost become an overwhelming and powerful social trend of thought. Even Xun Kuang, a Confucian master whose duty is to carry forward "benevolence and righteousness", openly crammed "rule of law" into his theory to meet the needs of the times. As for his lofty disciples Han Fei and Li Si, abandoning Confucianism can better illustrate the ethos of this era. Qin Shihuang was bathed in such an atmosphere of the times, which naturally influenced him.
In addition, in the long-term power struggle of the "Seven Heroes" in the Warring States period, Qin finally gained an absolute dominant position, especially at the beginning of Qin Shihuang's accession to the throne, which became an irreversible foregone conclusion. This dominant position clearly marks the victory of Qin's "rule of law" since then. There is evidence in history that almost all monarchs since Qin Xiaogong were "legalists". The formation of this tradition is not because the emperors of Qin were born with the rule of law, but because Shang Yang's political reform made the rule of law deeply rooted in Qin, and formed a systematic, stable and operable system in all aspects of social field. This system restricted and dominated the will and behavior of Qin emperors, making them unable to deviate from the established track of Qin's "rule of law".
However, we must not ignore human personality, especially the important influence of the personality of an autocratic king with absolute power on the historical process. If we can assume the course of history, we assume that Lv Buwei, the biological father of Qin Shihuang, became the monarch of Qin State (which is entirely possible). Can there be such a dark situation under Qin Shihuang after reunification? We said, definitely not. We know from Lv Chunqiu, which reflects Lv Buwei's political thoughts, that Lv Buwei actively advocated and implemented an enlightened monarchy, opposed cruel laws, allowed the liberalization and diversification of ideas, and tried to implement a decentralized system ... These thoughts were basically in direct opposition to Qin Shihuang's political thoughts. The problem is that in 22 1 BC, it was not Lv Buwei who became the emperor of Daqin Empire, but his illegitimate son Qin Shihuang.
According to historical facts, we can clearly understand that the personality formation process of Qin Shihuang and Lv Buwei is different. Qin Shihuang, influenced by the special cultural environment of Qin State since childhood, became an out-and-out legalist figure, thus showing a strong spirit of "rule of law". He eagerly read the legalist theory, praised Han Fei, the master of legalism, absorbed all the legalists in the world, and resolutely followed the "absolute monarchy" and. In addition to looking for the basis of these manifestations in the tradition of "rule of law" in Qin State, we must never ignore the personality strength of Qin Shihuang himself. The "rule of law" with China characteristics often needs an iron bowl figure, a political and military strongman! In the eyes of China people, an approachable and emotional king, or a compassionate and weak king, simply cannot undertake the important task of promoting the "rule of law". Qin Shihuang just did not have such a king! His painful experiences in his youth, twisted family life, the humiliation his father and mother gave him, and his premature understanding and mastery of the interior of the palace ... all these will inevitably prompt him to stop believing in the kindness and honesty of human beings. In this way, he naturally approached the preaching of "evil human nature" by Xunzi and Han Fei, which made his interpersonal relationship have nothing but "benefit" and "harm". Father can abandon him for life, and mother can humiliate him for pleasure, not to mention others! His mentality was seriously unbalanced in inferiority complex, and his reason gradually matured in hardships. The unbalanced mentality yearns for balance, so reason points out the only feasible way for him, which is to pursue absolute power tirelessly, that is, to enslave others mercilessly. He thinks that only in this way can he compensate for his painful mental loss. Therefore, he forced the strings of his feelings to stop vibrating from his early youth, which was in line with the Legalist theory of "strictness and lack of kindness" [1 1]. As a result, Qin Shihuang's cold-blooded character and the needs of the times finally found the best combination point.
Furthermore, for Qin Shihuang, he loved "rule of law" infinitely, which was the most full expression of his strong will, dominant will, possessiveness and power desire. This "rule of law" was really effective in his later unified war, and this unprecedented "extraordinary work" gave him great psychological satisfaction. Make him more convinced that "rule of law" is omnipotent and "universal" truth. Since powerful enemies can bow to their knees under his strong will and superior will, how can millions of unarmed people be just? Therefore, after the establishment of the Qin empire, Qin Shihuang was determined to spread his "rule of law" to the whole world, so as to use this ruthless weapon to drive people all over the world to serve his personal will at will.
The question is, in the eyes of Qin Shihuang, why does the "rule of law" have such a powerful force?
That is, he believes that the greatest strength of "rule of law" lies in its "severe punishment and severe law". After the unification of the world, the fundamental reason why he regarded "full-time punishment" as the guiding ideology of the Qin Empire in handling state affairs was here. However, "severe punishment doctrine" is not the patent of Qin Shihuang. In fact, it has always been an important theoretical pillar of Legalists. Shang Yang advocated "replacing punishment with punishment, although severe punishment is acceptable" [12]. The so-called "heavy punishment doctrine" means heavy punishment for minor crimes, that is, creating deterrence by terrorist means and driving the people to follow the example of the ruling class. But it must also be pointed out that, firstly, Shang Yang advocated "severe punishment" supplemented by "generous reward". Second, while advocating "severe punishment", Shang Yang did not forget the moral basis of "severe punishment", that is, "except punishment". However, Shang Yang's "severe punishment doctrine" changed quickly in the later political practice of Qin State, and his "severe punishment and generous reward" gradually evolved into "severe punishment and light reward". On the eve of Qin's unification of China, Qin Shihuang's ideological mentor Han Fei was already advocating "severe punishment and less reward". He said: "Heavy penalties and less rewards, love the people, and return to the people after death; More rewards and less punishment. If you don't love the people in the world, the people will not die. " What does he mean? Here, Han Fei is nothing more than deliberately shifting the focus of legalists and highlighting the role of "punishment" on the premise of adhering to the "reward and punishment theory" of combining benevolence and righteousness. But Han Fei is a rationalist after all. To this end, he also warned: "Those who use rewards will lose people, and those who use punishments will not be afraid." [14] That is to say, rewards and punishments must have a reasonable limit, beyond which rewards and punishments will lose their function. Unfortunately, in the monarchical totalitarian theory constructed by Han Fei, this reasonable voice was so weak that it was completely ignored by Qin Shihuang. "Severe punishment doctrine" came into the hands of Qin Shihuang, and its moral foundation and reasonable limit were completely thrown out of the cloud nine. Qin Shihuang did not advocate "punishment by punishment", nor did he advocate "heavy punishment with heavy reward" or "heavy punishment with little reward", but advocated "full punishment with heavy punishment without reward"! This extreme thought was vividly expressed by Li Si, the political designer of Qin Shihuang. He said: "The famous holy Lord and King have been in office for a long time, but those who are only good at the interests of the world are no different. They can judge and supervise their responsibilities at will, and they will be severely punished, so the world dare not commit crimes." [15] From the trajectory of "rule of law" in the alienation of Qin State, it is not difficult to see that "rule of law" has completely deviated from its original intention of "saving the chaos of the group and eliminating the disaster of the world" [16] and has become a cruel and barbaric ruling tool for the dictator Qin Shihuang to "raise the wrong group" and be enemies of the people.
The "rule of law" has undergone such a tragic qualitative change that we still need to look for it in the internal paradox of legalist thought. Legalists' political ideal is to find an iron king with the idea of "rule of law" and let him clean up the mess in the world. This bloody king should be such a hero: he can enslave the people by the most brutal, cruel, hypocritical and insidious means, and then liberate them. According to the Legalists, if the Huanqu area is to be "stable", Hai Xian County is to be "clear" and the whole people are to be "rescued", the world must first endure the slavery of this "savior"! It is the absurd paradox of legalists that created Qin Shihuang, an unprecedented totalitarian. In order to create this kind of hero, Legalists desperately advocated "autocratic monarchy" and totalitarianism of monarchs, hoping that this kind of hero could save the world from extinction and make the world cool. Where do they know that once the infinite absolute power above the society falls into the hands of heroes, it will not only become a tool for heroes to satisfy their personal desires, but also the shackles that enslave ordinary people will not be opened, on the contrary, this pair of shackles will become heavier!
Qin Shihuang belongs to this kind of hero, and his "rule of law" is a heavier shackle for the people who are eager for "liberation".
three
The fifteen-year rule of the Qin Empire was one of the darkest times in China's history, which was entirely caused by the "rule of law" of Qin Shihuang's "full-time punishment".
According to historical records, Qin Shihuang had a special liking for "black". He thinks black is an auspicious color. At the command meeting in the year when he unified the world (2 1 1 years ago), he personally stipulated that "color is still black", that is, "clothes and flags are all black" [16]. Qin Shihuang liked black so much, except that it was deduced from the mysterious theory of "the theory of the end of five virtues" of Yin and Yang in the Warring States period. Psychology believes that the psychological reaction to color is the externalization of one's values. People with different interests have different preferences for red, orange, yellow, green, cyan, blue, purple and white synthesized by these seven colors. Because different colors can have different aesthetic tastes with people. Interestingly, few people like black through the ages. Because black is considered an ominous color. Black is the darkness after light is swallowed up, and it is terror and destruction. But it is precisely because of the symbolic meaning of black that Qin Shihuang has a special liking for black. For Qin Shihuang, he was too familiar with the darkness: isn't the hostage life in Handan, Zhao a dark and horrible place? Qin's court life is not dark and horrible; The bloody reunification war that lasted for decades, especially the darkness and terror; His weak and sickly body is often threatened by death, which makes his spiritual world full of darkness and terror. In a word, his life is always accompanied by darkness and terror. Darkness killed his childhood and took away his joy. Hey? Complaining about your pants and sword? Do you worship and compare with male models? As for the shore, I want to transport my eyes to the grave, so I don't have to worry about line 8. What about leeches? Rude? Hemorrhoids? What's the matter with you? Qin Yi hemorrhoids? Are you crawling quietly? Rebellion? Fade? What's the matter with you? Di Zhi Zhi? Resist controversy? Floating k? Lucky? What happened? (5) What's the matter? nbsp
Now all the subjects of the four seas fall at his feet, anxiously expecting the emperor who killed thieves in Xingyi [17] to give them happiness, peace and light after the war. But Qin Shihuang didn't think so. He thought that only he was qualified to stride across out of the dark and enjoy the bright bath, and those sentient beings had to stay in darkness, terror and destruction in order to build an eternal empire for him. Starting from this arbitrary idea, he immediately established a "water morality" at the end of the unified war, and his attitude was firm. Everything is in accordance with the law, benevolence and righteousness, and then the number of five virtues. Therefore, the ideological hegemony of [18] is "rule of law".
Since then, Qin Shihuang's "rule of law" has become a hanging sword, hanging over the heads of tens of millions of subjects of the Qin Empire at all times, forcing them to build magnificent palaces according to their absolute will, build luxurious Li Mountain tombs, catch up with the Great Wall of Wan Li, extend in all directions, expedition to Xiongnu and South Vietnam, tour the country, look for elixir of life, kill innocent people indiscriminately, and burn books to bury Confucianism. ...
The only function of this hanging sword is to "severely punish". We only need to look at the creepy names of "Fa" in the Qin Empire, which is enough to make people despair. As far as the death penalty is concerned, there are slaughter, execution, abandonment, fixed killing, buried alive, giving death, beheading, cutting waist, chiseling, lacing tendons, strangulation, laparotomy, clan punishment, five punishments ... As for other punishments, it is too numerous to mention. The reason why there were so many punishments at that time was creepy, because only in this way could the atmosphere of "black terror" needed by Qin Shihuang be created, and those who were shrouded in the haze of "black terror" could reach what Reese said, "How dare you try to figure out" [19], thus making the subjects of the empire become humanoid beasts driven by it!
Of course, we need to point out that the laws of the Qin Empire mentioned above have existed since ancient times, and most of them were not initiated by Qin Shihuang. And these laws are not without descendants. With a little observation, it is not difficult to find that in China's autocratic society for thousands of years, the "rule of law" with this "severe punishment and cool law" as its content is almost irreplaceable. If we look at it from this perspective, there seems to be no reason for us to condemn Qin Shihuang alone. Indeed, as long as absolutism exists, the haze of "black terror" will not dissipate, the real rule of law will not be realized, and so on.
However, we have to mention Qin Shihuang's "rule of law" in particular, because under Qin Shihuang's rule, "rule of law" has been absolutely transformed into a national ideology, its despicable purpose and cruel means are rare, and its openly hostile nature is really abhorrent. If several emperors in the future know a little about the principle of "civil and military ways, one is loose and one is loose", then Qin Shihuang is even more superstitious about "violence is omnipotent" and thinks that any idea of his can become a reality under the banner of "rule of law". Based on this, he actually used the way he used to deal with the enemy on the battlefield to deal with the people under his rule. Under the control of the idea of "rule of law", he deliberately created an atmosphere of terror. He regards the people as dirt, and he regards the law as a whip and a butcher knife that can be abused at will. In order to satisfy his endless absurd and ugly selfish desires, the law in his hand is not only a tool to stop crime and ensure social stability, but also a tool to create "crime", which is rare in history.
In order to create "crimes" and "criminals", he not only "fully punished" and made "punishment" absolute, but also "punished without reward", which pushed "severe punishment" to the extreme and made the already harsh Qin law more severe. For example, after the establishment of the empire, strict laws such as the Hypothesis Law, the Book Burning Order, the Book Carrying Order, and the Defamation Law were successively promulgated to imprison their own thoughts. In addition, the existing criminal law has increased the punishment. For example, the "Defense Law" before Qin's reunification stipulated: "If it is delayed, it will take three to five days. ; Six to ten days, one shield; After ten days, I am armor. " [20] In the hands of Qin Shihuang, it was actually changed to "when it is lost, it will be cut by law." It's appalling.
There are good things in the world, and there must be bad things. Qin Shihuang's implementation of "heavy punishment and severe punishment" and "rule of law" is useless only by himself. Fortunately, in authoritarian politics, it is not difficult for a dictator to find a pawn to implement his own ideas. At that time, those bureaucratic groups transformed from military landlords and intellectuals were the biggest comprehenders of his spirit and active promoters of policies. "Profound bureaucratic management" is the most appropriate and fair evaluation of the bureaucratic group of Qin Empire in past dynasties. To what extent did the "advanced bureaucrats" of the Qin Empire reach? According to historical records, a bloody standard was set at that time, that is, "the murderer is also a loyal minister." [22] So what about the specific implementation of this standard? There is a record in Historical Records Biography of Zhang Er and Chen Yu: There was a Fan Yangling mausoleum at that time, which was in office for ten years. "The father of the murderer, the son of the orphan, the broken foot and the head of the deaf are countless." However, how dare a loving father and son? Everyone in the stomach (referring to Fan Yangling) is afraid of Qin Faer. "A small county magistrate is so cruel in the Qin empire, not to mention other officials at all levels. In this way, under the shadow of "black terror", the Qin Empire became a big prison of "corrupt officials who were violent, punished excessively, worried and bored the people, fled to the deep mountains, turned into thieves, took clothes halfway, and broke the prison for thousands of years" [23].
In this big prison, Qin Shihuang deliberately and constantly supplemented a batch of unpaid and unproductive labor with "criminals" as the main force. According to the will of Qin Shihuang, under the pressure of bureaucrats at all levels, they kept sailing to the places where Qin Shihuang needed them most. It is hard to imagine that under the "rule of law" of Qin Shihuang, everyone has "sin" and everyone is equal before the law, which is transformed into equality before punishment. The result can be imagined. Qin Shihuang's "rule of law" finally pushed most people of the Qin Empire to a desperate situation, but it also laid the groundwork for the demise of the Qin Empire.