The Formalization Of Traditional Judicature Of Ancient China

This article chooses Ligou' legal thinking as an example,to study the whole culture feature of the Ancient China,and also talk about some other ancient philosopher.Legal thinking of Ligou is different from other scholars of Song Dynasty.He created the idea of "??"and"??",improved the legal thinking of "etiquette" of Ancient China.The new idea can reflect the formalization of the ancient law system.This essay also learns the feature of ancient legal system,and to compare it with the "khadi justice" which has been depicted by Max·Weber.About this area,most of the scholars believed that,the feature of the Ancient China legal system is substantive rationality and formal irrationality.This essay chooses the idea of Ligou,to research the formalization of the ancient legal rules,in order to give some more specific speculations.The article focus on the philosophy of Ligou,and to analyze the innovative perspectives,such as“??”?“??”?“??”.“????”and so on.After studied all of the aspects,and compared them with the ancient thinking of law and actual cases of the Song Dynasty,this article drew a conclusion that the legal system of Ancient China showed an incline of pursuing the formalization of judicature.This article believes that,according to Ligou's legal thinking,we can find that the cases of Song Dynasty also reflect the tendencies of formalization.And this is depicted the formalization of the ancient judicature.The content of the formalization of Ancient China includes three factors,first,the constitution of the formalization.Ligou adds the criminal rules and the etiquette regulars to the concept of "etiquette",the whole feature of the context is formal.The concept of "etiquette" also the same as the concept of "??" or the "moral principles",they are all formal principles.Second,the formalization of the programs,The ancient judges only used moral principles to trial when the case belong to hard cases,and then they would add the moral principles to the laws,in order to give the justice,fond the best way to give a moral judgment.Third,the formalization of the moral principles.How to interpret the ethical rules of the concrete cases is depending on the ethical balance of the judges,but they should not interpret it by their own emotional feelings.There were some principles to use the moral rules,the way is to change the content of the principle,at the same time,the whole picture is remaining the same.The way to change the principle is according to"?"and "?",with the main purpose is to keep the balance of "?".That is the new idea of "??"or changed etiquette,which is different with the "?" depicted by Mencius.The Ligou's ideas combine the moral and law principles.In the civil cases.The judges used the moral principles with the consideration of the formal program.They must consider the concrete regulations of law first,and then the principle of"?" as subsidiary.In the criminal cases,the judges used the moral principle only when the cases are belong to hard cases.All the programs were controlled by the formal constitution of the "etiquette",to remain the harmony of the law and the principles.All in all,the theory of Ligou depicts the characters of the ancient legal system in Song Dynasty,combining the principle of morality and law,creating the harmony system of substantive rationality and formal rationality.Legal thinking of Ligou refutes the concept of "khadi justice".