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Signification Of Confucianization Of Ancient Chinese Criminal Law

Posted on:2007-04-09Degree:DoctorType:Dissertation
Country:ChinaCandidate:H T ChenFull Text:PDF
GTID:1116360182491382Subject:Legal history
Abstract/Summary:PDF Full Text Request
Since the 1940s Mr. Qu Tongzu has put forward the conception of the Confucianization in the criminal law of ancient China. A common understanding of this concept in academic circles has been established and the concept has been widely used in various types of textbooks on the history of the Chinese legal system even though people still hold differing opinions about this. But what is Confucianizaton? And what is its connotation? There is lack of systematic and specialized research about whether or not Confucianization should have a canonical and experiential standard. From the perspective of Qi Confucian and Lu Confucian ideological systems, and , based on the development of ancient Chinese criminal law from the Han Dynasty to the Tang Dynasty, this thesis reviews canonical and experiential research in an attempt to give a definition and to summarize the Confucianization of ancient Chinese criminal law.The primary viewpoints and conclusions are as follows.The major propositions of Pre-Qin Dynasty Confucianism centered around "humanity", "righteousness" and "rites". All of them are essential parts of pre-Qin dynasty Confucianism. Therefore, Confucianization in ancient Chinese criminal law, in essence, was a process in which the core conception of "humanity, righteousness, and rite" and some closely related propositions were gradually implemented and carried out. In the opinion of pre-Qin dynasty Confucian scholars, humanity, righteousness, and rite are the generalization and reflection of "the original goodness of human nature" and moral attributes of humans. Thus, the process of confucianization of ancient Chinese criminal law equated to the humanization of criminal law. In considering this humanization, the topic focuses on its following aspects: treating humans as humans, not as things;stressing that the practice of humanity is the foundation of the rhythm of prosperity and decline in families and countries. There are still more . People's moral practices in daily life are the basis for thriving families and countries. The inner stability of feudal families is the foundation of stability for feudal countries. In the combination of the politics of feudal familiesand of countries with social feudal orders of seniority in human relationships, the emperor should be restrained in order to protect the people. The relationship between emperor and ministers should be governed by rite, righteousness and moral regulation. Government based on virtue is the essential requirement for running a state;moreover, criminal law is a supplementary means to realize government by virtue.Dong Zhongshu, a representative figure of Qi Confucian thought in the Han dynasty, flaunted the banner of Confucianism, but actually, his ideological system was an inheritance and development of the Yin Yang theory of Qi Confucianism. According to Qi Confonfuciansim, the standard which demonstrates the Confucianization of ancient Chinese criminal law has three features: limit the sacredized monarchical power under rites and law;ministers should be obedient to the emperor and allow the public power to be used at the discretion of emperor or king;exercise national power and limit government behavior according to mutual promotion and restraint between the five basic elements(wood, fire,soil, water, metal) recognized by Confucian thought. So, the standards of Confucianization of ancient Chinese criminal law has two facets: one is the standard of humanization in pre Qin-dynasty Confucian (Lu Confucian), and the other is the standard of predestined imperial power of Dong Zhongshu(Qi Confucianism).The development of ancient Chinese criminal law from the Han dynasty to the Tang dynasty has two major clues. One is the filial piety, was the so-called " father is the guide to his son", which not only became part of criminal justice but also was thoroughly implemented in legal practice. The other is that "peerage can absolve from punishment" which in rites of Zhou dynasty, was constantly expanded and emphasized, and, in the end, realized through the institutions of "discussion, petition, reduction, ransom, pledge and remission ." The two changes in this period, can be generalized as "humanization" and "hierachicalization". The former is that, the filial piety in the principle of "separation of the close and the distant" became part of law;the latter is that, the loyalty in the principle of "separation of the noble and the humble" also became enshrined in law. However, the humanity and rites, or "separation of the close and the distant" and "separation of the noble and the humble" was Qi Confucianism existing in the Han dynasty other than Lu Confucianism from pre-Qin dynasty. In Qi Confucianism, "filial piety", also called "the father is the guide to the son", means that son should be absolutely obedient to his father. Thefather's humanity is like the heaven's humanity, and the son should obey his father's will and shouldn't disobey it so long as the father brought up his son. Furthermore, the son couldn't be allowed to challenge or detract from his father's rights. In Qi Confucianism, loyalty means "the emperor is the guide to his subject". Subject could enjoy special privileges derived from monarchical power only if they yielded to and served that monarchical power whole-heartedly, and made achievements for emperors. The so-called "peerage absolve from punishment", in essence means "monarchical power absolves from punishment." Rites of Qi Confucianism of in the Han dynasty, maintained the inviolably hierachical order of imperial authority. The relationship between emperor and subject aimed to keep autocratic rule derived from imperial power. The will of the emperor is holy and inviolable. Anyone who breached the emperor's will would be punished severely.The development from the Han dynasty to the Tang dynasty, was a process of Qi Confucianism being advocated and recognized, and, at the same time, these precepts in the Qi Confucianism continually became part of law. When Qi Confucianism in the Han dynasty was translated into institutions, only monarchical power and autarchy were left from the original ideas which was somewhat equal to the concept that "the emperor is the guide to his subject", or "imperial power is inviolable." As for "the father is the guide to his son" or "the husband is the guide to his wife", these two principle are merely additional regulations to control relations between family members in a feudal patriarchal society. These regulations, one hand, were geared for social need;on the other hand, they also laid a solid and extensive foundation of social ethics for keeping the autocracy of imperial power. From "filial piety" to "loyalty", from "humanity" to "rite", this is the deep-seated logic of the development of ancient Chinese criminal law from the Han dynasty to the Tang dynasty.In summary, the purpose of the ancient criminal law was, in actuality, to maintain the dignity of imperial power. Therefore, we could generalize the historical evolution of ancient Chinese criminal law from the Han dynasty to the Tang dynasty in this way: the criminal process evolved from "filial piety" to "loyalty" of Qi Confucianism.
Keywords/Search Tags:confucianization of criminal law, Qi Confucianism, humanization, predestined imperial power, from "filial piety" to "loyalty"
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