The Early Western Han Dynasty Huang-lao Doctrine Of Legal Thinking, Research, And The Rule Of Law Practice

The early stage of the Western Han Dynasty is an important period in the history of Chinese legal ideology. During the few decades, the official legal ideology changed from Legalism to Confucianism and the orthodox Feudal legal ideology was gradually formed. The Huang-Lao school of thought was the turning point of this great change. The Huang-Lao school was a sect of the Taoist school. It emerged in the middle period of the Warring State Period and became popular in the beginning of the Han Dynasty. "Silk Manuscripts of Huang-Lao","The Four Chapters of 'Kuan-tzu'","the Bamboo-Slip Wen-tzu",etc. are the comparatively reliable materials for our current study of the Huang-Lao school of thought. According to the above historical documents, the legal ideology of the Huang-Lao school in the Warring States Period could be summarized into three points: to combine Taoist school and legalism, to use punishment and rewards simultaneously and to use proprieties and laws simultaneously. The Huang-Lao school held that laws evolved from Tao and it is the embodiment of the natural laws of Tao in the field of social politics. Governing the country by law was the essential way for the Taoist school to realize governing the country without doing much. It discussed such problems as the origin and features of law, legislation and judicature and expounded and proved the existence of law from the philosophical aspect. It compared punishment and rewards with yin and yang (negative and positive principles). It believed the Dao of Heaven to be the basis for punishment and rewards and pointed out punishment and rewards were indispensable means of rule by law. The Huang-Lao school also advocated that rule of proprieties and rule by law are both means to realize governing the country without doing much. Under the signboard of letting things take their own courses, the Huang-Lao school absorbed views of both rule of proprieties and rule by law and mixed the theories of Confucian and legalist schools into the Taoist philosophical system and formed a mild doctrine of rule by law.Not believing in moralizing education, the legalist school held that rewards and punishments are the only effective means to govern the country. The Qin Empire carried out a violence policy of severe punishments for minor offences and thus greatly intensified social contradictions. As a result, the Empire soon collapsed. The early Han Dynasty inherited the numerous harsh laws from the Qin Dynasty and was deeply influenced by its practice of severe punishments. The rulers of the Emperor Gao's reign realized the harmfulness of the Qin's administration and began to take reform measure to reduce its bad influence. To avoid following the same disastrous road to ruin, they reflected on the Qin administration, sought suitable theories for running the country and finally chose the Huang-Lao theory as the guiding political theory. From Emperor Hui to Emperor Jing, the legal ideology of the Huang-Lao school greatly influenced the practice of rule by law of the Han Dynasty. First, the Han Dynasty promulgated comprehensive laws and formed strict legal systems, trying to regulate all social life under the law. Second, the Han Dynasty abolished some harsh laws and punishments and lenient policies were encouraged in the practice of law. Third, it issued a series of decrees to restrict exploitation and to rejuvenate the people. Fourth, It educated the people through setting examples of morality and remitting punishments, and etc. The legal ideology of the Huang-Lao school also greatly influenced the legislative activities of the early Western Han Dynasty. Under the guidance of the Huang-Lao theory of using both propriety and legalism, laws of the Han Dynasty were reformed under the essence of the rite systems. Propriety and law began to fuse together, for example, the law to protect the family ethics morality, the determination of punishment according to relationship by birth, the reducing and remitting of punishments to the old, the young, the sick and women, and preferential treatment to royal clan, officials, and people with a title of nobility.The early stage of the Western Han Dynasty is the important period during which orthodox feudal legal ideology was formed. Confucians of the early Han Dynasty, represented by Jia Yi, Lu jia and Dong Zhongshu, learned extensively from all other scholars and established a new Confucian system of the Han Dynasty that was different from the Confucianism of the pre-Qin period. During the reign of Emperor Wu, this new Confucianism took the official philosophical position of the Huang-Lao thought and occupied this official position of legal ideology for a long time since, forming the orthodox feudal legal ideology. During the formation of the new Confucianism of the early Han Dynasty, Jia Yi, Lu Jia, Dong Zhongshu, and etc. greatly absorbed the ideas of Huang-Lao Thought. They drew on the experience of the Huang-Lao philosophical concept and ways of deduction. They proved the value of moralizing education by means of the Tao, De and letting things take their own courses of the Taoist school. And they found the philosophical basis of the Confucian moralizing education. Among them, Dong Zhongshu was most successful in absorbing and reforming the Huang-Lao Thought. He reformed the the Huang-Lao theory of yin and yang, punishment and morality into the theory of morality first and punishment second, which was of great significance in history."Huinan-tzu" is the summary of Huang-Lao Thought. Its legal ideology is a sum-up of the legal ideology of the Huang-Lao school since the pre-Qin period. Its legal ideology could be divided into the following parts: the legal concept of Tao's governing the law, the legislative concept of governing the country without doing much, the judicative concept of governing the country without doing much, on the origin of law, the relationship between law and political trickery, puissance, the relationship between law and propriety, music, benevolence, righteousness. The legal ideology in "Huinan-tzu" centered round letting things take their own courses, but ideological trend of each chapter in the book is not identical and contradictions appear on many concrete issues, for the book was accomplished by many people.