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On Confucianization Of Law In Ancient China

Posted on:2014-01-10Degree:MasterType:Thesis
Country:ChinaCandidate:S Y ZhangFull Text:PDF
GTID:2246330395994742Subject:Law
Abstract/Summary:PDF Full Text Request
The spirit of Confucianism ran through thousands of Chinese feudal legal systemwith abundant contents, distinguishing features and clear evolution creating a systemof one’s own and thoroughly. The ancient China Confucianism contains abundantethics and sociological view of law with broad and profound features. As the core ofChinese legal culture, etiquette established explicit standard for social regulation andbehavioral pattern. The thesis is divided into3parts, as following:Part1is about the basic sociological view of law from Confucian school.Confucian school was established during the Spring and Autumn Period by Confucius,and after several transform and development by generations of Confucians, blendingwith Legalists, Taoist school and the Yin-Yang School, developing into an ideologicalsystem focused on superiors and inferiors. Confucianism includes content from manyaspects, and legal thought is an important aspect, mainly including two points: firstly,“moral governing”; Secondly,“rule by rites”. The concept of “ethics” originated fromthe Western Zhou Dynasty, the ruler of the Western Zhou Dynasty put forward thecriminal thought of “emphasizing virtue and being cautious with penalty” whichinherited the thought of destiny punishment meted out by God from Xia Dynasty andShang Dynasty. Pioneers of Confucianism made corresponding reform andcompensation to “ethics” on the basis of “ethics” from the Western Zhou Dynasty,considering “kind to people” and “putting benevolent government into practice” asthe basic way of gaining support from people. Confucian “moral governing” insisted“nurture” and rejected killing without education, which relatively emphasizedmorality and influencing function and despised laws and its enforcement function onthe relationship between laws and morality. The concept of “etiquette” originatedfrom the Western Zhou Dynasty, and “etiquette” was the generic term of series ofwords and deeds rules and spiritual principles maintaining patriarchal clan systemgrades in Chinese ancient society. In the Western Zhou Dynasty, etiquette of ZhouDynasty permeated into every domain of the society, playing the role of adjustmentwidely. Confucians of later generations inherited and developed etiquette system of the Western Zhou Dynasty and in some content “etiquette” was considered the centreof Confucianism. The relationship between etiquette” and “law” experienced thechange from opposition to becoming one, embodying the inner laws of Chineseancient law’s development. The centre of Chinese ancient behavior rule system was“etiquette”, and the content mainly formulated compulsory standard for people inclass and grade, which ruled what people should do and what people were forbiddento do. As for the grasp of Chinese ancient law confucianization, etiquette will have anintact meaning as long as it is combined with laws.Part2is about the process of Chinese ancient law confucianization, mainlydivided into several following historical phases: firstly, legal situation during theinitial period of Chinese feudalism, in this period, Confucianism was popular since itsthought was easier to adapt economic and political conditions of the society at thattime than Legalists. The second period was Han dynasties during which laws mainlyrealized confucianization by the form of “judgment by Chunqiu” and judgment byChunqiu was also called the trial of righteousness” which was the special judicialsystem during Emperor Wu of Han dynasty.“Judgment by Chunqiu” was guided by“conviction according to motivation and circumstances”, with foundation of“distances and status” and criterion of Confucian’s spirit. During this period which isthe initial phase of Chinese ancient law confucianization, Confucianism influencedlegislative guiding principles in feudalistic law and concrete judicial act. The third isThree Kingdoms of two Jin, South and North Dynasty, and during this periodfollowing Qin and Han and followed by Sui and Tang, we inherited legal traditionalculture of Han dynasties and many laws absorbed Confucianism so as to quicken theprocedure of Chinese ancient law confucianization. Firstly, legislation was guided byConfucianism focused on “etiquette”. Secondly, the standard functions of “etiquette”were legalized. During this period, confucianization developed further, and standardlegal form, scientific and reasonable legal code system, clear and brief decree werethe developing periods of Chinese ancient law confucianization. The fourth periodwas the Sui and Tang dynasties. Laws in Tang Dynasty, as the highest level ofChinese laws, reached the peak in Chinese Feudal society. Laws in Tang Dynastysummarized the experience of the Western and the Eastern Han Dynasties, Three Kingdoms, two Jin, South and North Dynasty, and on the base of absorbingConfucianism, it gave exact explanation on main legal principles, but also morequotation from Confucian school as clause, combining etiquette and law perfectly.“Punishment according to etiquette, combine with the law and etiquette” was thehighly summarization of Tang Dynasty’s etiquette and law, and “Being established byritual principle” was mainly embodied on three aspects: the guiding thought that“ethics and etiquette as the base of politics and religion; penalty was used for politicsand religion” and reflection of identity of “levels of gentle and simple, differencefrom close and distant”, as well as the penalty system of “using penalty to keep fair,and simple articles”. Tang law represented the highest level of Chinese ancient lawconfucianization, as well as the combination with Confucianism;“combine with thelaw and etiquette” marked final done of Chinese ancient law confucianization.Part3is meaning of Chinese ancient law confucianization for modern legalsystem construction, broad and profound Confucian culture forging thoughts ofChinese, after the development and perfection by Confucius, Menci, Hsun Tzu, TungChung-shu and other Confucians legal thoughts of Confucian school forming thelegal thoughts such as “moral governing”,“rule by rites”,“Rule by Men” and so on.Today we gain nutrition from the ancients’ wisdom again, which has strong meaningof mirror for modern legal system construction.
Keywords/Search Tags:Moral Governing, Rule by Rites, Law Confucianization, Modern Legal SystemConstruction
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