Chapter 46 Chapter Six

If it is said that there was no rule of law in Chinese history, I am afraid that some people will raise objections: Isn’t the legalist governance during the Warring States period the rule of law?Isn't the law regulating the people running through the entire ancient history of China like a red thread? However, the rule of law referred to in this article is not the rule of law, nor the legal management of feudal autocracy, but the democratic rule of law in the modern sense. Just as feudal autocracy is characterized by the rule of man, democratic constitutionalism is characterized by the rule of law.Here, we need to compare legalist governance, feudal legal management with modern democratic rule of law.

Legalists' political theory was based on feudal centralization, and they advocated that the monarch should be "arbitrary". In the chapter "Book of Shangjun Xiuquan" it is clearly pointed out: "The ruler is the one who controls the power." Starting from the dogmatism of the monarchy, and later developed, the Legalists even advocated that the monarch should kill the ministers exclusively. "Han Feizi·Wai Chu Shuo" advocates that admonishing ministers who have different opinions should be "eliminated if they are not powerful enough", and should be killed "without pain".Advisers can be killed, but who can't be killed?It was the joint efforts of generations of legalists who pushed feudal autocratic centralization to its peak and extreme.Since the legalist rule of the country and the implementation of severe punishments and laws are likely to lead to retaliation, and because they "encourage" the monarch to kill people at will, the legalist ministers always "shoot their own feet with stones", and each of them ends up with no good end.Strictly speaking, Legalism belongs to the theory of wartime system; once the country is unified, the rulers mostly adopt Confucianism to govern the country.Since the fall of the Qin Dynasty, the Western Han Dynasty has only respected Confucianism. Although the traditional rule of law still survives, there is no much "market". During the "Cultural Revolution" period, only one voice was allowed to criticize the law and Confucianism in the whole country. The planned economy was too centralized, and the suppression and crackdown on veteran cadres and intellectuals were in essence a reflection of the autocratic rule of the Legalist wartime system.

Of course, ancient Chinese society also had a traditional rule of law that was different from legalist governance.This rule of law is called the Chinese legal system by Western scholars. It began to take shape in the Qin Dynasty and was completed in the Sui and Tang Dynasties. The masterpiece; it continued to develop and gradually disintegrated at the beginning of the 20th century, but its influence still exists today.The main characteristics of the Chinese legal system are: 1. The emperor is above the law. The emperor combines all the powers of the country in one person, not only the legislator, but also the judiciary and enforcer.The feudal dynasties of the past dynasties had laws to govern officials and the people, but no laws to govern the monarch.The power of interpretation, approval and execution of all laws is in the hands of the emperor.The emperor can establish the law with one word, or abolish the law with one word, and his edicts, decrees, edicts, edicts, etc. also have the highest legal effect.

Second, the law is not equal. The emperor is not bound by the law, since ancient times.In addition, the law is quite flexible, and everyone has different identities, and the punishment for breaking the same law is also different.Treating nobles and bureaucrats, they even grant various immunity privileges. 3. The Confucianization of law - the combination of ritual and law. As a special law, Confucianism's principles and teachings regulate all aspects of social life. The so-called "virtue governs punishment" and "going out of rites into punishment" is a major feature of feudal law.Dong Zhongshu even created the judicial tradition of "judging prisons by classics and righteousness", adjudicating with the righteousness of "Spring and Autumn", putting Confucian classics above the law.Traditional laws only involve public affairs such as administration and criminal affairs, while civil affairs are controlled by traditional ethics and customs. There are no private and civil laws on family and trade.After the Song Dynasty, family regulations, township regulations and civil agreements also became a supplement to national laws.Hegel said in "Lectures on the History of Philosophy": "For the Chinese, the moral obligation itself is the stipulation of laws, laws, and orders."

Fourth, the integration of administration and justice.The central judiciary cannot exercise its powers independently, but is only a vassal of the emperor; the local judiciary is also managed by the administrative agency, and the highest chief executive is the highest judicial officer. They all belong to one person—the feudal emperor. The core content and principle of modern Western democracy and legal system is to restrict power by power, and strictly implement the separation of powers in legislation, judiciary and law enforcement.The modern rule of law is associated with democratic constitutionalism, which essentially reflects the will of the public rather than the will of individuals or certain groups. It is the basis of all social life and public power.The law is "God", the will of God.It is above everything else, and all power, including state power, is placed within the scope of the law. Even the king, president, and prime minister are subject to its constraints. They must abide by the law and exercise their powers only within the scope permitted by the law.All are equal before the law, and no one is above the law, nor has any privilege to escape or lessen the judgment of the law.An important feature of its internal mechanism is that judges serve for life, judge independently, and are not subject to interference, sway, or influence by any force; in order to establish judicial justice and judicial trust, the judiciary enjoys absolute authority in law, and whether power is truly restricted by law depends on In the end, they must accept the test of the judiciary.

It can be seen that the Chinese legal system has a long history, but it is not strictly a modern rule of law. Its autocracy, brutality, and arbitrariness are consistent with the feudal regime, and a kind of rule of man has been implemented for a long time. The so-called rule of man means that "government depends on the people", which mainly depends on the ruler's personal talent and personality appeal, and people are above the law. Without the prerequisite of "people", "law" will lose its effectiveness; The only way to rationalize its politics is the ruler's personal conscience discovery and self-restraint, and its ruling method is mainly based on violence and power, supplemented by moral education.This political method is doomed to policy incoherence and regime instability, which is the root of the periodic turmoil in China's feudal society.

Alienation is an unavoidable feature of a government of man.Officials in the rule of man model are the rulers and dominators of the people, and have the functions of managing and educating the people.In the process of exercising their powers, they gradually integrate fame, fortune, and power into one body, and have noble privileges higher than ordinary people.The official position has become a gleaming "magic wand", and having an official position means having everything.As a result, a social group psychology that regards officials as the foundation and officials are humble and the people are more expensive-"official standard" was formed in this way.The official position emphasizes official power, belittles civil rights, puts the officials first and the people as servants, putting the cart before the horse, and the official position is slowly alienated in this way; while those who hold official positions "once they get on the dragon gate, they are worth ten times", self-inflated, facing the superiors. A slave is a slave, and the next is a master. There is no equality of personality, castrated by power, and completely loses "humanity".Therefore, people under the rule of man have become so alienated that it is difficult to find a real, pure, capitalized person!

Under the rule of man model, nepotism, hypocrisy and flattery, bloated organization, overstaffing, conformity to the old ways, crony strife, mediocre officials in power, tyranny of relatives, and eunuchs as disasters must form many bad habits and disadvantages. The most closely related to the rule of man is the phenomenon of corruption that caused the most headaches for the feudal emperors.There have been laws to severely punish corrupt officials in the past dynasties. Zhu Yuanzhang even took those corrupt officials who were sentenced to death to the "leather temples" set up in each prefecture, state, and county to peel their skins, and filled the peeled skins with straw, lime, etc. Then hang it next to the public seat of the yamen as an example to others.But corrupt officials are always "successful", repeated repeated prohibitions, one is more corrupt than the other.The root cause lies in the flaw of the feudal law itself under the rule of man - the people have no legal rights.Officialdom is a "black box" operation, political opacity, only top-down linear constraints, no bottom-up universal supervision.Apart from sighing, watching, and praying, the people have nothing to do about corrupt officials. It is no wonder that the awareness of honest officials has risen to some kind of devout worship similar to religion among the general public.

The rule of man is a unique political phenomenon in ancient Chinese society. It is not only a political thought or a political system, but a historical tradition formed over a long period of time. The ancient Chinese civilization was an agricultural civilization based on the natural economy. Farmers took the family as the unit and engaged in individual production and management activities.The long-term continuation of this kind of economy, on the one hand, was restricted by the level of productivity. From the Spring and Autumn Period and the Warring States Period to the end of the Qing Dynasty, ironware was always the main production tool in the countryside; The policy of emphasizing agriculture and suppressing business is exactly that.More than 90% of farmers are fixed on a piece of land and isolated from each other, leading a self-sufficient farming life, so there is no need to establish legal systems such as civil law and commercial law to regulate social relations and behaviors between people guidelines.In other words, the social rule of law lacks the soil and conditions for its birth.

The democracy and the rule of law in Western society were closely linked with the prosperity of business and the development of commodity economy from the very beginning.Taking the ancient Greek civilization, the source of Western civilization, as the Greek peninsula is surrounded by mountains and seas, the large-scale development of agriculture is limited, and the economy is mainly maintained by colonizing overseas and engaging in commercial activities.The commodity economy disrupted the original blood clan system, and different clans lived in mixed places, and only through joint consultations among members of society could decisions on local affairs be made.Gradually, a political mechanism was formed in which different interest groups compromise with each other and check and balance each other, and the minority obeys the majority. This is the early prototype of the modern Western democratic system.

From the above, we can find the different origins of the two laws in China and the West. Chinese laws are designed and formulated by "sages" or the country subjectively. It is a top-down, mandatory "tool for governing the people". , its purpose is to arrange the status among social members, and then return to their own positions and live in peace and contentment; while the West is spontaneously produced by social members from bottom to top in their interactions with each other, and has the nature of a convention. The task of a natural protection layer recognized by the public is to determine the equal rights and obligations among members of society and to protect individual freedom under the rules. China's commodity economy is underdeveloped, so there is no civil law with commodity economy as its content.It is civil law that fully embodies the value of the rule of law, in which human rights, ownership, and equal rights are the prototypes of modern citizenship; the concept of social contract, the spirit of equality and freedom, and the awareness of individual sovereignty in civil law are the social and cultural sources and foundations of constitutional rule of law. It can be seen from this that it is difficult for the social soil determined by Chinese historical traditions to spontaneously give birth to modern constitutionalism and the rule of law.That is to say, in terms of philosophical thinking, it was not until Huang Zongxi in the late Ming and early Qing that he had any real sense of democracy.He pointed out in "Ming Yi Dai Fang Lu" that the laws after the Qin Dynasty were "laws of one family" and "laws of illegality" rather than "laws of the world", so "the closer the laws are, the more chaos in the world will be born. in the law".However, the understanding of all thinkers in history did not go beyond the basic category of feudal rule of man. Even though the invasion of the great powers after the Opium War had hit and weakened the sovereignty of China's feudal state, it did not constitute an impact or damage to the internal autocratic regime. People with lofty ideals in modern times attracted the "fire" of the West to pursue democracy, science, and freedom. Even for them, democracy was not the real goal of political reform, but a means to enrich the country, strengthen the army, fight against imperialism and save the nation.Since then, calls for national salvation have been overwhelming and overshadowing the enlightenment of democracy until the national liberation in 1949 AD. During the "Cultural Revolution" period, cultural nihilism destroyed the little bit of democracy and the legal system that had been accumulated with great difficulty. Until today, when we have learned from the painful experience, we have paid enough attention to the governance principle of separation of powers in Western countries and used it as a reasonable administrative management model for reference. Can the foreign democratic constitutionalism and the rule of law be transplanted and grow into a towering tree? Democracy is certainly not perfect, nor is it the best ideal political system, however, it is the best political system for mankind so far. The rule of man will be abandoned by modern civilization and democracy and the rule of law. In fact, when Emperor Taizong of Tang pushed the feudal rule of man to its peak, it was time for future generations to seriously reflect on the unattainable loss and decline, and change to a "living method". Even so, the Tang Dynasty is still a distant ideal society and a splendid dream of civilization in the hearts of Chinese people.When the Chinese nation's democracy and the rule of law are on the right track, and the feudal rule of man is a historical relic that will never cease, we will look back at the traditional rule of man and the pinnacle of feudal prosperity created by Emperor Taizong of Tang Dynasty, and feel the greatness, strength and masculinity of the Tang Dynasty. Maybe you will get some unique and profound enlightenment from another angle, get a kind of eternal and sacred light and spiritual power of endless struggle.