The Discussion Of Secret Law

In the UK jurist Maine writing the masterpiece of ancient law, through the investigation of the early human law, puts forward the human law in early once existed a secret phase. Although Maine was not in the theory of detailed argumentation, but in China, its influence on legal history and law fields, is unexpectedly strong a few into the basic law knowledge, and by the Chinese law for granted. However, with the progress of China's level of academic research in Chinese history, and the jurisprudence, we have enough accumulation and research results, so that we may, according to law the general principle of Chinese legal history through the investigation,and the early situation, review questions in this statement in China. Because academic usually think in the spring and autumn period XingShu irradiation in the molten ding marks the end of the secret law, this article mainly surrounds the event and then do the analysis. The main conclusion is that although in view of the situation with Chinese law the secret law exists in early Chinese law on the surface, but the truth is, this is merely "echo" on the surface of the early Chinese law: the situation is much more complicated than the secret law, which can generalize or view. From the casting of penalty statutes before the tripod, Customary law for early human law and general principles of law and the law system, we think before XingShu casting in irradiation, the statutes not only exist in China before the tripod and, but also we had Publishing the system of traditional law, and further, the so-called secret law is applicable to view a misunderstanding: at least since history begining, China's law is no secret, Chinese law being the secret law simply cannot survive; At the same time, to which the Shuxiang's opposition, it was only a new law published by Zichan, which was crime and punishment corresponding .This paper includes three parts which are introduction, text and epilogue.Introduction mainly is a simple explanation for this to solve problems, especially in research methods or in the aspects of demonstration's "pursuit".Text consists of four major components. The first part is mainly to ask question, to comb and analysis related literature, and illustrate the purpose and significance of writing. From the perspective of structure, this part of the main task is to explain"what the problem is". As said, in the ancient law the view of secret law was put forward by Maine, and China law scholars think that the secret law generally also exists in early stage of China law.But this paper thinks that this needs to be further behind, and the truth may be far from it. The second part is mainly to analyze the views about this problem Chinese scholars having. Although there are many different parts among these view, but the basic similarity exists: in China before irradiation is advocated, there is a secret law of China; It can be seen from the Chinese scholars about this problem of fundamental knowledge and the bottom line.The third part is the more important part, mainly illustrating the so-called secret law statement or view is not able to explain the situation of China by three different aspects. First, there are plenty of genealogical literatures that can prove, in China, before Zichan, there were a number of statutes,and they had been announced .This publishing was a traditions and institutions. These geneological literatures are large quantities, and the evidence is basically can assure you.This is a problem in the research that cannot ignore or simple evaded. Therefore, it needs a reasonable explanation we can accept. Second, even if we don't talk about these documents, as for they did not exist, setting up this view of secret law is difficult. Because we all know, the early human law is the customary law, later the customary laws generate the statutes . The customary laws, just as its name implies, are inseparable relationship to habits, or as parts of the habits. This habit or practices, they are very difficult to keep secret. In fact, the customary law is neither possible nor necessary to keep secret. Finally, as we know, historically, as the legal standard in the human,being recognized or making by the government,after that the government keeps them secret and do not let people know.there is not this precedent. The nature of the law determines this. As is known to all, with the guidance law is standardization, according to law people can predict behaviors of ourselves and others, and further more know that to this behavior, what the kind of country is. Of course, there is the premise of publicity. Anyhow, due to the overwhelming evidence of this series, we have to think the common expression of jurisprudence of China that the law is the so-called secret state before XingShu, are not accurate, Then, in that kind of human legal development process, the law of the "secret" is not a popular phase.Maine's basic rule of law concerning development is not the law about the fundamental principles of legal development, even if it exists, it has nothing to do with China. Therefore, we can roughly think, for China, in our Sandai period, or at least the western Zhou dynasty, the statutes already exist, and they have been announced. But we cannot help asking ,in that case ,what did actually Shuxiang oppose?So, we come to the major part - part 4. In fact, both pointing the existence of written law of China before Zichan and explaining theg were already announced are relatively easy, but the key is, If we claims this viewpoint, so how we do explain the powerful letter from Shxiang. This paper solves this problem from the basic principle of jurisprudence aspect, this can explain the two aspects that seem very contradictoy. According to modern legal theory, legal regulations are the main and basic elements of statute law,and they consist of the legal consequences and behavior patterns in two parts. If we explain the ancient Chinese law according to this theory, we can say before casting criminal Ding to Chinese law, the behavior pattern and legal consequences of two parts do not been combined, there is their own.The behavior pattern which is represented by the customary law the courtesy marks, because of its customary law properties, so even no state has promulgated also everybody knows. Part of the legal consequence of the existence shows through the way of punishment to the penalty (or punishment book), as these penalties create for the country, so they should be published by the State. In other words, ordinary Chinese people living in Western Zhou Dynasty, by the customary law, although were aware their actions were right or wrong, illegal or not, and koowed the various types of criminal penalty through the penalty books issued by the State, but a particular crime should be subject to any specific kind of penalty, it is not clear.Finally, the paper mainly summarizes all above,besides that,also pointing out a new kind method of jurisprudence research. If this viewpoint of the paper in logic can be established, the general "showing" of methodology nature perhaps is the most important.