Seeking "Li" From "Fa":the Legal Philosophy And Method Of The Scholar-officials In The Southern Song Dynasty

Based on the practical needs of judgment in criminal and civil proceedings and the knowledge-seeking spirit in Neo-Confucianism,the Southern Song Dynasty scholar-officials reflected on the legal origin system,legal value objectives and judicial methods,and established legal philosophy and judicial methods with distinctive characteristics of the times.This process of knowledge exploration can be called “seeking‘Li’ from ‘Fa’(refering to law and judgment)”,which means seeking general principles in law and judgment,and in turn apply and implement this legal principle into judicial practice.These knowledge exploration of the scholar-officials in the Southern Song Dynasty occurred in the historical legalization process of the virtuous official’s judicial judgment mode.In the Han and Tang Dynasties,the knowledge background of judgment was the so-called “article-abiding” doctrine,which emphasized strict adherence to the statutory laws.At that time,the mainstream of judicial judgment mode was cruel officials(Kuli)instead of virtuous officials(Xunli).In the official history books,the judges who strictly abide by the statutory law are the representatives of “legal scholar”.During the Song Dynasty,monarchs and scholar-officials on the one hand inherited and carried forward the law-abiding tradition in Han and Tang Dynasties,and emphasized that the cases be judged according to law,on the other hand,they reflected on the harm of the judgment model of cruel officials,denounced the cruel officials who were excessively strict in law,harsh in punishment and abusive in crimes,opposed the cruel officials who fawned on monarch and abused the statutory laws,and called for virtuous officials who can interpret the law independently,and give attention to both norm systems of moral discipline and statutory law.By reinterpreting the meaning of “legal scholar”,the monarch and minister of the Song Dynasty established the virtuous official as the orthodoxy of judicial judgment mode,and promoted the revival of virtuous official’s judgment.Corresponding to the legalization process of the virtuous official’s judicial judgment mode in the political and legal world,the thinkers in the Song Dynasty,especially the Southern Song Dynasty,launched a reflection on the legal nature and rank relationship of the two norm systems of moral discipline and statutory law.Zhu Xi,a Neo-Confucianism scholar in the Southern Song Dynasty,with the basis of Cheng hao and Cheng yi’s thought,interpreted “Li” as the moral and ritual discipline contained in Confucian classics,and explained “Fa” as the statutory law formulated by national government.Since that,Zhu Xi established a dualistic legal norm system in which “Li” and “Fa” are all law,and “Li” is higher than “Fa” on the legal hierarchy.He also established the law application principle of abidding by “Fa” at ordinary times but citing “Li” as contingency.In the intellectual circles of the same period,Neo-Confucianism in the Southern Song Dynasty focused on citing“Li”.However,academics in eastern Zhejiang lay particular stress on abiding by “Fa”.Their differences of purpose are slightly similar to the disputes between natural jurisprudence and positivist jurisprudence in modern period.On the whole,both of them recognized the value origin status of the moral and ritual discipline,and the relative independence of the statutory law.Zhu Xi’s dualistic normative theory of “Li-Fa” accorded with the internal logic of Confucian culture,which attaches great importance to moral propriety,adapted to the needs of judicial practice,and gained the mainstream status in the academic and political fields in the middle and late Southern Song Dynasty.From the perspective of modern legal origin theory,“Li”(the moral and ritual discipline)in the context of the Southern Song Dynasty sometimes belongs to “the cognitive origin of law”.In this case,“Li” only provides a content rationality for the implementation of “Fa”(the statutory law),but does not include the authority of national legislation.At other times,it belongs to “the effective origin of law”.In this case,the scholar-officials tried to reserve the power to interpret and even create laws by citing “Li”.In the regular application procoss of “Li”,the Confucian moral and ritual discipline transformed and substantialized as law with national legislation authority.Scholar-officials in the Southern Song Dynasty generally attached importance to administrative and judicial affairs.They were not only keen on collecting and disseminating judgment papers,but also emphasized the study and practice of Confucian values through judicial judgments.This interaction between philosophy thought and legal system is the trend of the Southern Song Dynasty.Behind the normative construction of the “Li-Fa ” normative system of the scholar-officials,there is not only their value concern for the result of the judgments,but also a demand for knowledge of judicial methods.In referee practice,they used the word “Fa Li” to refer to the statutory laws and regulations,and the word “Li-Fa” to refer to both moral discipline and statutory law.They have placed their trust in the legal justice concept,which announced that “observing Li and abiding by Fa is just”.The need for justice and goodness had promoted the call for judicial methods.In the process of reflecting judicial proceedings,these scholar-officials criticized“excessively sticking Fa” and advocating “clearly understanding Li”,emphasized grasping the essence of the law and the method of legal interpretation.Therefore,“Li” in the legal context of that time can not only refer to the moral and ritual norms contained in Confucian classics,but also point to the value of justice and goodness,as well as judicial methods.In legal activities,these scholar-officials referred to facts with “shi” and “qing”,referred to laws with “Li” and “Fa”,consciously divided the factual issues and the legal(normative)issues,and conducted knowledge reflection on them,establishing the thinking mode of judgment in criminal and civil proceedings.These scholar-officials referred to the thinking process of evaluating the facts of the case by legal norms with the words of “Qing Li” and “Qing Fa”,which constituted the linguistic basis of legal reasoning at that time.In addition,these scholar-officials understood the division system of Ju and Yan with“suitable on Qing” and “reasonable on Li”,which means clear cognition of facts and correct application of laws.They Called the judgment document “Yin Yi” “Shi Li”,refering to legal facts,which consisted of the cause of matter(fact)and the legal basis(law).It can be seen that these scholar-officials’ conscious distinction between factual issues and legal issues has been implemented into the national judicial litigation system.In terms of factual issues,the Southern Song Dynasty scholar-officials made extensive epistemological reflections on the factual determination of judicial proceedings around “Shi”,“Qing” and “Shi”.They realized that due to the existence of judicial corruption,the factual statements made by both parties and petty officials,and the government’s determination of facts may not only conform to the truth,but also deviate from the truth.To make a proper legal evaluation,it is necessary to make the factual cognition conform to the facts of the case.Stimulated by Cheng hao and Cheng yi’s thought of “Studying things and seeking Li(refering to truth)”,the Southern Song Neo-Confucianism scholar-officials put forward the factual cognition theory of “seeking the truth of things”,which requires that officials should be vigilant against petty officials’ fraud,identify the factual statements of the parties concerned,attach importance to all kinds of evidence,and use textual research methods to obtain proper legal fact cognition.In terms of legal issues,the Southern Song Dynasty scholar-officials formed legal beliefs for officials and the public around the Neo-Confucianism proposition of “observing Li and abiding by Fa”.Neo-Confucianism in the Southern Song Dynasty,especially Zhu Xi’s theory,used the word “Dui Yue” to describe the normative application of scholar-officials in judicial judgment.“Dui Yue” meant to face the Heaven or the God,while Neo-Confucianism interpreted “Heaven” and “Li Fa” mutually.That is to say,it teaches the scholar-officials to consciously pursue moral discipline and statutory law with the attitude of respecting God or Heaven.As a result,the judging activities in proceedings hosted by these scholar-officials consciously showed objectivity and universality.As for the common people,the Neo-Confucianism scholar-officials carried out the education of moral discipline and statutory law(“Li Fa”)by the teaching announcement.Through the combination of persuasion and intimidation,they convinced the common people that “Li”(the moral and ritual discipline contained in Confucian classics)and “Fa”(the statutory law formulated by national government)are both effective laws(“the effective origin of law”),thus transforming the Neo-Confucianism academic theory of “Li Fa” dualistic legal norms into people’s legal beliefs,and laying a social foundation for the application of legal norms in judicial judgments.Based on the distinction between factual issues and legal issues,the scholar-officials in the Southern Song Dynasty systematically constructed the value goal and reasoning method of judicial judgment.Neo-Confucianism in the Southern Song Dynasty,especially Zhu Xi’s theory,preached “seeking Shi” and “seeking Li” in the political and academic field.“Li” refers to both the descriptive reason why it si and the prescriptive rule that ought to be,while “Shi” refers to both the truth of fact and the goodness of value.Thus,seeking“Shi” and “Li” means the unity of two value goals: seeking factual truth and valuable goodness.In the judicial judgment,these scholar-officials repeatedly emphasized“distinguishing right(Shi)from wrong(Fei)”.Thereby,The value appeal of truth and goodness promotes the progress of macro judicial methods linking factual and legal issues.A group of scholar-officials put forward the theory of judicial methods,the outstanding representative of which is Hu Ying’s slogan,which announced that “to investigate the actual situation,then rely on documents;to distinguish the justice result,then abide by the law”.This is the Southern Song Dynasty expression of “taking facts as the basis and law as the criterion”.In the referee practice,the judicial methods had been developed concretely by these scholar-officials.First,“Qi Kan” means exploration and agreement,and “Zhao Dui” means investigation and comparison;They widely appeared in judicial documents in the Southern Song Dynasty,reflecting the appeal of the Southern Song Dynasty scholar-officials to analyse the facts by law.The judicial method meaning of it is equivalent to the word“Subsumtion” in European jurisprudence.Secondly,the specific judicial methods in the Southern Song Dynasty can be generally classified into three categories: “those which can find law”,“those which can find legal case”,and “those which are hard to handle”.The former two correspond to modern legal methods such as deductive reasoning and analogy reasoning,while the latter actually refers to legal continuation by citing Confucian classics and moral discipline.The third method is equivalent to the value measurement in modern jurisprudence.From the perspective of the judicial methods system,“Qi Kan”“Zhao Dui”(Subsumtion)is mainly embodied in “those which can find law”,which corresponds to routine simple cases,while “those which can find legal case” and “those which are hard to handle” correspond to complex and difficult cases.The former one embodies abiding by the law at ordinary times,while the latter two reflect citing the moral and ritual discipline as contingency.This judicial methods system is the concrete implementation of Zhu Xi’s law application principle.Scholar-officials in the Southern Song Dynasty were keen on seeking “Li” from “Fa”,and endowed “Fa” with the meaning of legal norms,values and methods,which was closely related to the prosperity of Neo-Confucianism at that time.From the perspective of Neo-Confucianism in the Southern Song Dynasty,the normative and methodological implications of “Li” have yet to be explored.As far as the dimensions of judicial norms,there are two ways for the “Li” of Confucian moral and ritual discipline to be materialized into law in the Southern Song Dynasty.Firstly,the constitutional conventions in official disputes,such as the official discipline,institutional responsibilities,and so on.Secondly,the “imperial clauses” in civil disputes,such as emphasizing the difference between the respect and inferiority,and taking the punishment after teaching.Both of them are based on Confucian moral and ritual discipline,and at the same time have the authority of national laws,which belong to the “the effective origin of law” in the context of Southern Song Dynasty.This reflects that the Southern Song Dynasty Neo-Confucianism established “Fa”by siting “Li”,and sought to regulate the state power and social life in a unified and rational way.In addition,Neo-Confucians in Southern Song Dynasty deeply thought about the relationship between “Shi” and “Li”,“Qing” and “Li”,“Xin” and “Li”,which showed the Neo-Confucianism basis of the judicial method system in Southern Song Dynasty.Firstly,Neo-Confucianism,especially Zhu Xi’s theory,had digested the “Shi-Li” thought of Hua Yanzong and other Buddhist sects.It provides a basis for the distinction and agreement between “Shi” and “Li”(facts and norms)in the Southern Song Dynasty judicature.Secondly,the Southern Song Neo-Confucians used the five hexagrams about judicial litigation in the Book of Changes(Shihe,Bi,Feng,Lv and Zhongfu)to expound the thought of clarifying “Qing” in judicature.This not only emphasizes the verification of the facts of the case,affirms that the application of law should fit the facts;but also emphasizes the need to grasp the ethics and propriety in a specific situation,and to measure whether the enactment of laws and the adjudication of judicial proceedings are fair by citing “Qing Li”.The emphasis on “Qing Li” reflects Chinese people’s unique justice view based on moral emotion: as a fact,people’s natural emotion and life needs are legitimate before all social rules.Thirdly,As the two great Neo-Confucianism scholars in the Southern Song Dynasty,Zhu Xi and Lu Jiuyuan had some dispute on the the relationship between “Xin”(mind or heart)and “Li”(truth).This influenced their views about judicial litigation.Zhu Xi emphasized the intellectual rationality of law,while Lu Jiuyuan’s philosophy of the mind advocated “the heart to distinguish right and wrong in fan lawsuit”,and emphasized the just intuition of judges.The two thoughts are both opposite and complementary,but the intellectual spirit of Zhu Xi’s theory dominated the core of judicial methods in the Southern Song Dynasty.Based on the analysis of the legal philosophy and judicial methods of the Southern Song Dynasty scholar-officials,we can grasp their legal contribution from four aspects:(1)The legal philosophy and judicial methods of them present the structure of “Li ontology”.That is,they take “Li” as both legal norm,justice and judicial method.Their reasoning mode had profound characteristics of Zhu Xi’s Neo-Confucianism.(2)The legal philosophy and judicial methods of these scholar-officials abstracted and implemented just ideas such as caring for the sufferings of the people and protecting the interests of civilians,especially the weak,which reflected the consolidation of Confucian values.(3)The legal philosophy and judicial methods of these scholar-officials reflected the endogenous systematic appeal of legal origin and judicial methods in Chinese culture,which reflected the development of legal knowledge rationality.(4)The formation of the legal philosophy and judicial method of scholar-officials in the Southern Song Dynasty is concentrated in the book forming process of Qing Ming Collection,which is closely related to Zhu Xi’s later followers such as Zhen Dexiu and Liu Kezhuang.For Chinese law and jurisprudence since Song Dynasty,the legal philosophy and judicial methods of these scholar-officials constituted important knowledge resources and jurisprudence paradigm.