The Ritual Of Withdrawal

Accompanied by the ancient classic order crash, the philosophers debate over china’s governance system, the main issue is the struggle of Confucianism and Legalist (法家) The core issue is whether the institutional form fits with the sentiments.Since the establishment of the Qin and Han unified dynasties, the national foundation is Legalist’s thought, Confucianism dominated with Legalist supplemented gradually become the guiding ideology of the state governance system, the Legalist’s legal system beginning Confucianization course. The law can actually become a concentrated expression of the traditional Chinese debate of treatment order. Since modern Chinese and western contact, The civilization degree higher western powerful impact Chinese management system, make the management system massive conversion. Country-led nature of this transition lead to this conversion performance a more legislative rational guidance system transplantation. The core elements of the transplantation management system is constitutionalism.Confucianism,Legalist and constitutionalism as three types of core elements of the national governance system,formed a violent confrontation in the chinese modern law changes. Since this changing, the core idea of the problem also gradually transferred to the wrangling between confucian with constitutionalism.Since the Middle Ages, traditional Chinese law Code punishment is based on the principle of confucianism as the main legislative thinking. This expression distinct reflected the Confucian scholars’s ideal system,that is in the admittion of Legalist’s regulation system in codes with confucian moral codes limiting. Scholars The reason of scholars’ confidence is due to its view that Confucianism is the most profound and most complete reflection of the people sentiments. The core principles of Confucianism is statue and relatives, and between the monarch and parents, there are closely inter-relate. Reflected in the law is the special provisions of the monarch and relatives. In the classic, ritual oringin of "the saints according to the situation of the people",and "changes along with the time" principle, In a way, the monarchy era law’s vitality is realized through the change of ritual.Around the law,monarchy people and scholars have an organic connection in order to achieve comprehensive management of social. This to be reflected in the the Existing Criminal Law which is the last tradition law.From then, as an important symbol of constitutional government, human rights thought began to enter the law code by a destroied way.Since the preparatory constitutional Edict published, the law revised into the institutional framework of the constitutional,and monarchical gradually overflow Confucianism. The new generation of scholars which transformation from the traditional gentry completed the introduction of Western legal thought by the formation of docking with the trickery of Shen Han under the slogan of seek strong and prosperous consciously or unconsciously. This process is accompanied by section discrete level of thought appeared in modern China, made the confucian losing its constitutional requirements and control of criminals, and thereby accelerated the reduction of moral codes in the law. Accompanied by the unanimous appeal of the ruling and opposition parties, constitutional-Bureaucracy-the law was introduced into China as a set of institutional forms. The idea behind is unity of the civilized state system and the New Draft Criminal is a product of this process. Countries and intellectuals conspiracy completed the introduction of the Western system of governance, the sentiments of the people consider getting nothing anchored in the national system form.According to the draft which is transportation, the traditional Confucian and new scholars all think that are supposed by his own identity principle of high order disposal. Zhang Zhidong,as the leading of confucian, criticise the draft by vitual point, following LaoNaixuan and ChenBaochen. In practical terms, the delete of traditional analogy in new draft is a destruction of the whole management of confucian, and as the vision of moral codes, new draft reflects the constitutional principle based on the equal conception is weight imbalance and is not suitable for Chinese people. And in the new draft believe in the constitutional countries’ identity of system, The system connotation in the traditional confucianism begins to be pull away, and becomes just having the moral significance.The monarch and relative provisions especially become the core of the struggle. This process can be divided into three stages:in the late qing dynasty the debate is around the relative provisions under the no doubt monarchy, acommpanied the change of the monarchy, the relatives provision are change also after the Xinhai revolution.The monarch and relative provisions are completely clear in1928. Meanwhile, in the seemingly clear division of the steps, monarch and relative provision related closely in the traditional moral codes appeared from time to time. But the end result is still the mischief from criminal law but recede. In the republic of China, due to the introduction of the whole western six law system, with the constitution as the core around the legal system in the form of governance, were almost all technical and legal debate, about the ethical code provisions also transformed into "good customs" technical expression.Problem is that, with western legal knowledge system extrusion the original principle of moral codes, the former law attention people and then limit the dimension of the monarchy under the background of the old moral codes and legal as an organic whole are also loss.But the new national law and morality’s inner association dose not really set up. In the modern law of operation system, the solution about principle of the nations involved resort to the constitution relief or general principles terms, paid more attention to public sentiment is relying heavily on interpretation of department law. But the political chaos render the YueFa can’t really realize. The foundation of the state is not stable.Frosty the constitution and its western set of human nature and social assumptions are lack Chinese characteristics so as hardly attend to the custom. In a word, the thought foundation of modern Chinese system forms are not firmly. In the process of traditional China to modernization, the purpose of bringing in constitutional governance system was solutions the problems of alienation between the system and custom in tradition china, however, because of considering the moral codes and constitutionalism as an opposition both, the result is not resolved but sharpened the problems.