On The Legalist Tradition In The Mainstream Legal Thinking In The Song Dynasty

Generally speaking, Confucian legal thought is considered the core of the traditional Chinese legal culture. However, the dissertation holds that elements of Legalism, which traces back to pre-Qin period, also could be found in the Chinese legal history. Taking Song Dynasty for example, the dissertation conducts an overall review on the mainstream of the legal thought in the Song Dynasty, to prove in it the existence of the elements of Legalism, and gives a deep analysis into the reason why the elements of Legalism could be accepted by the Confucian legal culture, which had dominated the whole region of legal thought in Song Dynasty.The dissertation consists of four parts, and it goes as follows:Part one is a prelude, which mainly presents the main opinion of the dissertation :In the law and legal thought of Song Dynasty, Legalism also exists and plays an important role, which is decided by the historical condition and the shortcoming of the Confucian legal thought. Also, this part gives an explanation to elements of Legalism and the mainstream of Song legal thought, thus shaping the scope of the research in the dissertation.Part two tries to confirm the existence of Legalism in Song Dynasty, the proof of which lies in three respects: Firstly, the rulers in Song Dynasty put great emphasis on the role played by law in governing, to ensure the stability and peace of the country. Secondly, compared with the proposition held by the Confucian that the nobles and officials of higher rank should be given preferential treatment in judicial practice, strict and equal implementation of statute was also stressed in ideological field in Song Dynasty. And lastly, severe penalty were suggested to punish the criminals in order to prevent more crimes from appearing. All of those had originally been the proposed by the scholars from Legalism and opposed by the pure Confucian scholars such as Confucius and Mencius in pre-Qin period.Part three probes into the historical condition in Song Dynasty and the Confucianism itself, to try to explain the reasons for the existence of Legalism in this period. The dissertation holds that the worsening condition of politics,economy, society and foreign affairs forced the ruling class and intellectual circle to find a new way out. On the other hand, they found that the Confucian political theory had fallen into troubles, which leaded to great problems. For example, Confucian legal thought believed that all men could been educated well in moral, therefore, it insisted that the most effective way of admiriistrating the county and reducing crimes is to carry out education across the country. However, the rulers found that there were always a number of people who were not likely to be educated well, and not willing to accept the education and to follow all the moral principles. The problem how to treat such kind of citizens could not be solved by the Confucianism only, it still needed the help from Legalism. As a result, the elements of Legalism found its place in the popular legal thought.Part four discusses whether the elements of Legalism had dominated the making of legal policies, and the answer is negative. In addition, the appliance of Legalism in Song Dynasty starts another question, that is: Whether the Legalism could, to some extent, benefit the Rule of Law in China today?...