The Origination Of Legal Confucianism In China

The process of China legal Confucianism originated from Han dynasty, a numerous of articles were discussed focusing on that issue, but most of them using fusty treatise, lacking of developed and systemic research basically. This article inspects the specific process of gradual Confucianism of Han dynasty's legal philosophy based on comprehensive material and deep analysis. It concentrated on analyzing the specific aspects of Han's law which was influenced by the Confucianism including the principle of legislation, jurisdiction and people who enforced the law.At the beginning of Xihan, the governors regarded as Qin's crucial governing then realized that Qin adopted and applied the Legalism philosophy of which Shangyang and Hanfei were represented, taking no use of Confucianism philosophy and also abusing penalty concluded Qin dynasty into the end promptly, then they began to consider which mode should be taken to regulate the society. Legalism philosophy put emphasis on "Everything should comply with the law", "Deeming the placeman as teacher", "Taking the law as religion", respecting the combination of law and political right,"Everything should be determined by the emperor", and applying the severe penalty. However, come along with Qin's mortality, Legalism philosophy lost its past glory then quite the stage of the history.Since the former empire just ended, Xihan couldn't set up a new legal system during one day. Liubang's "Three commitments couldn't defense the enemy" So he commanded Xiaohe to "make nine articles which were adopted from the appropriate laws" regarding previous Qin's law. We can say that the Nine-article Law succeeded Qin's law directly which was marked on the Legalism philosophy inevitably. The Legalism philosophy did play an actual role in the institutional area but in the ideology area it was no longer be respected. Under the circumstance of the reality, at the beginning of Han, the joint philosophy of Taoism and legalism called Huanglao philosophy attracted more attention. Huanglao insisted doing nothing, restricting law and reducing tax which were suitable for the social reality at that time. It contributed a lot on the economic recovery but it's more negative, also it's not an effective method to strengthen the power centralization and fulfill the country rich and powerful, therefore the Confucianism philosophy back to stage and occupied the dominant place became a historical certainty.That process is gradual. Before HanWudi, the Huanglao philosophy occupied the dominant place, Confucians and Confucianism got little attention. During Emperor Gao's governing, hadn't discussed the learning of dominating the country yet, the importance placemen were all come from military power during the Empress Xiao, Hui, Lv period. "Emperor XiaoWen preferred the advice from the placeman who in charge of law" "Xiaojing never appoint Confucians."On the other hand, the clue of Confucianism arouse again. At the beginning of Han, Confucian Lujia proposed that "what to be used when regulating the country in the peaceful period" the ruler changed the attitude of Confucianism. Lujia wrote emphasized that valuing the Confucianism mortality standard can become an effective method to achieve the goal of a stable society. It is said that "every article he wrote made Emperor Gao praised." Since then the Confucian began to be valued. After that, a philosopher called Jiayi proposed that only Rites can help the country became stable and making people rely on the emperor. But he didn't discard the Legalism, "only if no reward for the good and no punishment for the wickedness", these theories make a preparation of strengthening the function of Rites. After four proposals were approved by Emperor Wu, Confucians played a role as placemen in the court. Thus, the Confucianism was deemed as the dominant philosophy, the law in China towards to the Confucianism.Confucianism became the dominant philosophy in China after Dong Zhongshu's proposal of "Discarding all other philosophies , respecting only Confucianism" was adopted. But the "Confucianism" thus adopted was already different from the Confucianism before the Qin Dynasty. In this system, the Confucianism is the main theme, but it was also combined with ideas of the Legalist, together with ideas from Taoism, Ying-Yangism, and even theology. It has two main themes. First, the theory of the fusion of the celestial entities and the human being gives the emperors power inherited from God, which in turn generates the Three Commandments doctrine. Second, the emphasis on Morality, only use Penalty as a subsidy. Morality is Yang, and Penalty is Ying; God favors Yang, not Ying; Morality not Penalty. So the rulers should rely on Morality to rule the country, and use Penalty as a complement.The orthodox feudalistic Confucianism was established at Han Dynasty, under the ruling of Emperor Wu, but it was challenged by other philosophies including Legalism. In 81BC in the YanTie convention, the Grand Sensor Sang Hongyang, debated with the Elitism scholars, which was regarded as the last debate between pre-Qin Confucianism and Legalism. They dissent in many different areas. Legalism emphasizes law, procedure, and power. "Mannerism cannot prevent evil, but Penal Law can stop violence." On contrary, Confucianism thinks education on morality is essential to governance of the country. "If education is successful, there's no need for Penal Law." Legalism emphasizes strict enforcement of law, and advocates involving relatives in a criminal proceeding; Confucianism supports restraint on criminal penalty, advocates privileges for relatives. Also, it opposes an objective perspective of conviction based on facts, instead it focus conviction on mens rea. According to this theory, a criminal offense is not criminal if the intention is good; a legal act is criminal if its intention is malicious. Legalism focuses on Legal means, Confucianism focuses on the ruler. In summary, Sang Hongyang's faction takes after Legalism, the Elites takes after the orthodox theory of Dong zhongshu. The intensity of the debate is an indication that philosophies other than Confucianism didn't totally disappear. Afterwards, in Emperor Xuan period, the legal enforcers were still predominately characterized by its Penal Law function.As it should be, Confucianism occupies a brilliant position in the philosophy area, but for the institutional judicial practice, legalism still taking effect. In company with trialing and defining law according to the , the promotion of adopting rites the Confucianization is unstoppable. The result of the whole process is lots of Confucian-officers were made directly offering a plenty of human resource for the legal Confucianism.The process of legal Confucianism in Han dynasty inducts the moral legal philosophy into judicial practice, legislative process, specific legal department and judicial officers gradually, made a rigid foundation for the legal Confucianism in the following WeiJinNanbeiChao period. By Tang dynasty, inducted the combination of Rites and Law, the process of legal Confucianism was accomplished.