Recovery And Reflection Of Tradition Of Qinglifa From The Perspective Of Modern Rule Of Law

Although “Qinglifa” is formally from modern study of law,substantial discussions around the symbol is closely related to the Chinese traditional legal culture,which shows important effects connecting ancient and modern of the symbol as a proposition of philosophy of law.Consequently,with the background that academics reflect subjectivity of research,those discussions about “Qinglifa” are real value for considering the dilemma lacking of own theory.However,there is difference between synthetic and independent concept in the use of “Qinglifa” for about thirty years,which against the further study and consensus.By analyzing the use of “Qinglifa” in China judgement online,it could be seen that synthetic concept has own insurmountable logic defect and it is necessary to use independent concept to overcome logic dilemma.Meanwhile,it could be indicated that constructing juridical rationality is core of the independent concept by reviewing formers’ studies.Because of history,document and other backgrounds,the Qian Long period of Qing Dynasty is a good sample for inspecting the tradition of “Qinglifa”.Opinions represented by Zongzhi Huang and Shuzo Shiga are divided on Counties’ self-care cases which were judged by Qing or law,but it is no dispute in mainstream view included them that felony cases were judged by law.“Lifting the heavier to weigh the lighter.” By inspecting these lawsuit documents recorded by Board of Punishment from the Qian Long period of Qing dynasty,it could be seen in felony cases considered as judging mainly by law that judges also insisted on pursuing substantial rationality against law partly.In the guidance of “the balance between Qing and punishment”,by applying four juridical skills included analogy,flexible rule,substatute born in case and legal interpretation and three special systems included expanding participation,special reminder and adjustment of result,judges cured the imbalanced relation between Qing and punishment to achieve construction of juridical rationality.In the eyes of rationality,the tradition of Qinglifa indicates a kind of constructional pattern in which rationality is separated from legality.In this pattern,the judges at different levels were responsible for construction of rationality and the justification for legality was transferred to the emperor,which reflects the specific of conviction and sentence,the balance between crime and punishment,the open of judicial adjudication and the prospective of judicial point.Taking the pattern into the traditional context,based on the cultural structure of “heaven-emperor-the common”,judges’ behaviors seemingly against law could be explained coherently.Because felony cases are correspond to the high-level power of final adjudication even the highest power of emperor,in the closed loop of “heaven-emperor-the common” without absolute authority,the two sides make the emperor and the bureaucratic who need to justify the legitimacy of governing and the common who concern and value punishment on account of own interests reach a potential agreement,which forms the abundant appearances of Qinglifa in felony cases.However,faced with the tradition of Qinglifa in the eyes of modern jurisprudence,there are many points in which violating the principle of legality is obvious against the fundamental rules and spirits of modern rule of law.Essentially,the source of conflicts lies in the different understanding about “human being” in tradition and modern.“Human being” is a kind of “subjects” in traditional context,lacking of the thoughts and systems of limiting power and guaranteeing right,it is an inevitable choice to violate law for achieving juridical rationality in individual cases in “parent-officials lawsuit” formed in the status of “subjects”.Nevertheless,based on “human being”,the fundamental junction,and the significant historical turning point from “subjects” to “citizens”,together with these systems of limiting power and guaranteeing right generated from thoughts,these conflicts between the tradition of Qinglifa and modern rule of law could be limited in rule of law context in contemporary China and the positive could be further developed.Meanwhile,the logic of tradition of Qinglifa has not disappeared in modern rule of law featured by formal rationality instead of public opinion,administration and other powers influencing justice still in contemporary juridical practice,which makes contemporary justice necessarily face the tradition of Qinglifa.By comparison about different patterns relating to constructing rationality and legality in traditional and modern justice,with several hot cases in recent years,it doesn’t mean that legality will be sacrificed in the tradition of Qinglifa emphasizing substantial rationality in spite of the inevitable choice for contemporary justice pursuing formal rationality.Return to the concept,standing on the modern rule of law,Qinglifa could be finally defined as a process in which the judge constructs juridical rationality according to law.Seemingly the definition is simple,which actually implies the important historical turn and evolution from tradition to modern.Especially the expression,the judge acts as subject and the law works as juridical foundation,reflects the essential spirit of limiting power and guaranteeing right from modern rule of law,meanwhile the construction of juridical rationality as the coherent core of Qinglifa adequately embodies the essence of the traditional legal culture.Under the background of concept,as a kind of “the higher tradition”,the characteristics of the tradition of Qinglifa is more meaningful for contemporary juridical practice.On the one hand,because of the specific of conviction and sentence,the judge should pay more attention to facts of individual case and strengthen the demonstration from “Qing” to “crime”;hard cases ask for a kind of balanced perspective to find legal basis rather than ossification of syllogism on account of the balance between crime and punishment.For these requirements,not violating the legality,the judge could achieve it by the higher juridical reasoning based on the expanded discretion.On the other hand,the open of judicial adjudication emphasizes that there should be access to juridical democracy and professional knowledge;because of the prospective of judicial point,the judge should take a kind of thought towards the future for reasonably making judgments.For these nuts,the legislator should make these informal constructional means of rationality turned into legal system by institutionalized ways in order to provide accessible legal paths for the judge.Thus the abstraction for “Qinglifa” could better solidify consensus to make research further,meanwhile responding to the subjectivity in Chinese study of law.Especially taking “human being” as junction,Qinglifa could link tradition and modern,and the core,construction of juridical rationality,could positively function under the premise of the subjectivity of people.