The Study On The Traditional Thought Of No Litigation In The Qing Danasty

Traditionally, an ideal pattern of social order was one without ligitation. Non-litigation was, therefore, the ultimate political goal of a society, which provided guidance for its judicial activities.This paper includes two parts. The first part is about the reasons of the Non-litigation. As a psycho-cultural product, the idea of non-litigation was deeply rooted in the social reality. Non-litigation in Qing Dynasty was both a discourse of order and a discourse of morality centred upon the king's subjects. It survived the psychological and experiential tests of the whole society in terms of operation cost, and won the public's full trust. While combing the development of the idea of non-litigation, this paper offers a comprehensive examination of the cost in the maintenance of order, vigorous litigation and lawsuit burden, from the perspectives of the emperor who made a royal claim of harmonious social order, the officers who was the chief architect of monarchy, and the mass that passively participated in the building of a harmonious order of the royalty doctrine. Of course, the autocratic monarchy played an important role in the formation of bureaucratic system. As an indication of political aspiration for order, non-litigation became the Order Complex of the officers who constructed the social harmony under the guidance of monarchy. During the interplay between ideaology and society, the need for order molded the characters of Chinese culture. On the contrary, the culture rooted in different schools of thoughts created the atmosphere of non-litigation, establishing the thought about the order of royalty doctrine.The investigation of the development of non-litigation in this paper moves from the perspective of culture typology to that of social history. The traditional thought of non-litigation expressed the officials'expectation of a harmonious order; however, the ideal political concept could never equate moralizing with the historical fact. In fact, there were many factors that not only forced the officials to mind their own subsistence, but also became the social background where civilian-loving officer considered the living ability of the common people, such as the explosion of litigations under the pressure of the order of the royalty doctrine, the officials'limited administrative qualifications against the rigorous administrative rules and poor adaptability, people's heavy litigation burden, the manipulation of pettifogger and petty officials, the cruelty of punishment and the rigidity of traditional law. Furthermore, these factors even caused people to elude the law in the dual social order, and tinted non-litigation with a moral color. All this nourished the dispersion and the public trust of non-litigation. Meanwhile, the whole society tried every means to flee collectively lawsuit in a reasonable but passive choices.However, non-litigation was an political expectation. Obviously, quelling the litigation was the best way to achieve the political goal. Because of the non-litigation as the political ideal, this article focused on the efforts of traditional officials in the technical research and in the moral guarantee during the course of achieving the non-litigation. On the whole, judicial requirements included the principles of seeking the non-litigation, quelling the litigation previously, making moralization into the litigation, giving people convenience and saving trouble firstly in the culture of official admonitions in the Qing Dynasty. Researches on the traditional culture of official admonitions reveal that the thought of quelling the litigations was the theoretical system that included the multilevel sections, multiple ways and all kinds of political trickery of governing people. This theoretical system needed not only to persuade the people to quell the litigation but also to punish evil, praise kindness, distinguish the false and even intimidate the people to creat a safe litigation environment and quicken the interrogation for people's convenience and saving trouble.In the process of oyer, we found that traditional officials tried their best to quell the litigation according to the refutation, hearing and settlement. Traditional officials were committed to the classification of litigations, building mediation mechanism and making the hearing principles that included sympathy, reason and law according to the various intermediation resources in the traditional society. On the one hand, for achieving this committment, these traditional officials, in view of constructing professional ethics, promoted the formation of psychology identity in the people-based culture in all respects which were political, social and ideological. On the other hand, from the reverse perspective, they cultivated people's belief in law, retribution and officials'reputation.In order to explain the real state of non-litigation in detail, this paper chooses the litigation invovling the competition between the power of patriarch and the stateliness of imperial power in Qing Dynasty as a case study to recreat the situation where the government of Qing Dynasty kept and constructed the harmonious order in the clan society. Protected by the stateliness of imperial power, the rules of the clanism which aimed at stopping litigation and dispute in traditional ethical law was synchronously contained by the latter's high press and governance. The legal bound of the rules embodying intimacy in primate relationships, such as reducting the penalty of theft and injury from theft between the relatives, tolerating and concealing crimes between kinfolks and the maintenance of the patriarchal quasi judicial power, was defined constantly. Thus much principles that originally belonged to clan autonomy was adopted into national law. From it we can find that Qing Dynasty's construction was based on the strictlyly coping with frequent events which badly effected order. The hardship and struggle towards the realm of non-litigation was not only a kind of protection of cultural pattern which made people subjected to kingdom but also a cover on the base of deconstruction concerning the matter that power coped with right.The effort of the excellent official's fulfilling the thought of non-litigation in traditional society represented undoubtedly the acme that the culture of traditional judicature and the bureaucratic politics could reach. Its state and degree of practice can become an epitome of the operation of the bureaucratic politics. The traditional thought of non-litigation reduced the strain of judicial resources effectively in political system of the royalty doctrine, and satisfied the Oder Complex of the monarchy to construct a harmonious order. However, the ineffective implementation of the rule of morality and the defects of ruling by man made the principle of governance with no litigation impractical. It will in no way accelerate the realization of a harmonous society. On the contrary, those factors weakened people's legal awareness, made the power further wrap the individual rights and reduce the order to be more chaos.