Chapter 15 1. Illegal law

The trouble with the empire is the centralization of power, and the trouble with the centralization of power is with the emperor. We know that in terms of its development trend, the empire is not general centralization, nor is it general centralization, but the concentration of the power of the world in one person.This person is the emperor.From the reduction of feudal vassals in the Han Dynasty to the dismissal of prime ministers in the Ming Dynasty, the process of continuous centralization of power in the empire was actually a process of continuous strengthening of imperial power.Therefore, Emperor Wu of the Han Dynasty wanted to establish another internal dynasty, Song Taizu wanted to take back his military power, and Qing Yongzheng wanted to set up another military aircraft, that is, no possibility of threatening the imperial power was allowed.This often makes people mistakenly think that the empire implements the rule of man, that is, the emperor's "one-man politics".This point of view has a large market both in academic circles and in the private sector.

But this is not true. There were many emperors in Chinese history, but not all of them were masters of the country.For example, there were thirteen emperors in the Eastern Han Dynasty, and they practiced as adults? ? ?There are only two of them, namely Emperor Guangwu Liu Xiu and Emperor Ming Liu Zhuang.The remaining eleven weak crowned ones, Emperor Xian Liu Xieming is a puppet, so it can be counted, there are only ten.Among these ten, four did not live to be ten years old.Among the other six, only Zhang Diliu really made a difference? ? ? , Others either enjoy the country's days short, or are useless.However, after Emperor Zhang and before Emperor Xian, the Eastern Han Dynasty still had a lifespan of 101 years.If the emperor must be the one who monopolizes the power, how can we maintain it for more than a hundred years?Another example is Zhu Yijun, Emperor Wanli of the Ming Dynasty, who also succeeded to the throne as a child.After becoming an adult, he ignored the government for many years.If the imperial system is the emperor's "one-man politics", how will we spend the past forty years?

In fact, ancient Chinese politicians almost never endorsed the rule of man.It is undeniable that ancient China did have the idea of ​​"emphasizing people and despising laws".Because no matter how good the law is, it needs people to implement it.No matter how good the people are, the law is useless. This is called "the rule of man but no law" (there are only people who can govern the country, but there is no law that can govern the country).However, no matter how good a person is, he must die.As soon as a person dies, his politics will end. This is called "if a person survives, his government will act, and if a person dies, his politics will cease", or "when a person dies, his politics will cease".If the country wants long-term peace and stability, of course we cannot place our hopes on this.What's more, people have good, evil, virtuous and foolish, not all "governing people".Even wise men and sages will inevitably neglect a hundred secrets, and inevitably lose a thousand worries.Wouldn't it be dangerous if the life and death of the country depended on one person?Therefore, the way of rule by man can only be a special case, not a rule.It tends to happen in times of turmoil and pre-empire times.Because at that time, the country's laws and disciplines were in decline, and a lot of waste was waiting to be rejuvenated, so there had to be super-strong figures to turn the tide.However, just like "getting the world immediately, you cannot rule the world immediately", a rule of man can create a country, but it cannot rule the country.It is unreliable to rely solely on personal charm and prestige to govern a country.In fact, "Let the people rule, and all talk about governance" (Volume 3 of Wang Fuzhi's "Du Tong Jian Lun"), and the empire could not simply talk about "rule by men."

The rule of man is a product of the tribal age.In the tribal era, a person became a leader and a manager by relying on his personal charm and ability.It is precisely because of his high ability, fairness and integrity that everyone voluntarily obeys his leadership. This is what Liu Zongyuan said in "On Feudalism" "obedience to those who can break the straight".At this time, what the leaders get is the kind of respect from the heart.What society obeys is also their personal will and personal decision-making.This is "rule of man". The state is a semi-mature state form transitioned from the tribal state and the tribal state alliance, so it also partially retains the legacy of the rule of man.Especially in the Spring and Autumn and Warring States period, the world was in chaos, the rituals were broken and the music was broken, and all the heroes rose together to compete for the Central Plains.In the whole world, there is no absolute authority, nor is there a unified law.To unite the ethnic group, survive and die, and defend the country and the family, it really requires the personal ability and charm of the leader.Therefore, it was also an era of heroes.Even until the end of Qin Dynasty, it was like this.When reading Chinese history, the previous stories are always better than the latter, and this is the reason.In fact, in a "small country with few people" society, the rule of man is not necessarily bad.As long as that person is "ruling people", the effect may be much better than the rule of law.

In the age of empires, the rule of men can no longer be relied on, because empires are a complete and mature form of state.A nation differs from a clan in three ways.First, the clan divides the people according to blood, and the country divides the citizens according to the region.Second, the clan governs society by personal charm and prestige, while the state relies on public power.Third, the basis for the clan to handle affairs and quell disputes is custom, while the basis for the state is law.This is what Engels told us in his book The Origin of the Family, Private Property and the State.By virtue of public power and laws, the smallest clerk in an empire may have greater authority than all the organs of gentile society put together.But as Engels said: "The most powerful princes and the greatest state dignitaries or commanders in the civilized age may also envy the most ordinary clan chiefs who enjoy the indisputable respect that is not obtained by coercion." . "That's the difference between a clan and a nation.

The Qin and Han Dynasties and subsequent empires basically met the above three conditions, especially the first one.The so-called "replacing the state with counties and counties" is actually "replacing blood relationship with regions".The people are no longer "tribal peoples" and "citizens of the state" who are distinguished and divided according to blood relationship, but "household Qimin" who belong to the empire and manage according to regions (counties).In this way, China after the Qin and Han Dynasties should be a society ruled by law.Because after the prestige of the individual is gone, the only thing a manager, leader, or ruler can rely on is power; the only thing he can rely on is law.Moreover, as Engels said: "Because of this law, they enjoy a special sacred and inviolable status." ("Family, Private Ownership and the Origin of the State") According to this, the empire should implement the rule of law.

However, it is only "should". On the surface, China has long had "law", and the empire has always had "law".It has laws (laws), codes (classics), judges (Tingwei), courts (Ministry of Punishment), law nets (soap officials), law grounds (execution grounds), law halls (yamen), and advocates. The school of "ruling the country by law" (Legalists) seems to be a "country ruled by law".It's a pity that this method is not the same.The law in ancient China is not so much a "fa" (contract law) as a "law" (criminal law).Its main task is to stipulate how officials and people should deal with offenders, and it also proposes some solutions to civil disputes.As for the rights and duties of citizens, there is no talk.Besides, there was no concept of "citizen" at that time, only "subject".A subject is a subject.Disobedience (including committing rebellion and stealing chickens and dogs) will be punished.To convict, there must be a size.So there is "law".Obviously, governing the country according to such criminal laws is not so much "rule of law" as "rule of law".

This is far from the real law and the rule of law.The law in the true sense is the "law of the whole people", that is, all citizens with independent personality and free will (or their representatives elected freely and voluntarily) through full discussion, democratic consultation and mutual compromise. "Social Contract".Such things never existed in traditional Chinese society.Whether in the age of states or in the age of empires, there were no citizens, no independent personality and free will.There is a relationship of personal dependence between people.The son is attached to the father, the wife is attached to the husband, the inferior is attached to the superior, and all people are attached to the emperor.The emperor "proclaimed the constitution of heaven", and his word was the law. Where did the "law of the whole people" come from?Even Liu Bang's "Three Chapters of the Covenant" are nothing more than terms determined by one party to be implemented by the other party, not the result of democratic negotiations between the two parties. It is not so much a "covenant" as a "stipulation".Such a law, of course, can only be called an "illegal law."

Under such conditions, it is clear that there can be no real rule of law.The true rule of law has a principle, that is, "everyone is equal before the law".Can this be done in Age of Empires?The people sue the officials to hit 50 boards first, what is this called "equality"?Ordinary people go to the yamen to file a lawsuit, they have to kneel on the ground to listen to Hou's dissatisfaction, and they have to "slap their mouths" if there is a slight rebuttal. What is "equality" called?That's right, in ancient China there was a saying that "a prince who breaks the law is as guilty as the common people".Not to mention whether this can be done or not, and at the same time there is still "no punishment for a doctor, no courtesy for a common man", even if it can be done, it does not prove that "everyone is equal before the law" at that time.If the prince breaks the law, he must commit the same crime as the common people, but what about the emperor who breaks the law?Same crime but different crime?For example, if you kill someone to pay for your life, and you borrow money to pay back the money, why does the emperor never pay for his life when he kills someone?In fact, the emperor could not break the law at all, because he himself was the law.It is not illegal for the emperor to kill people, because it represents the country. "Unity is the country", "Unity is the law", so why do we need the law?Therefore, many laws and codes in ancient China are nothing more than a piece of paper, and at most they are used to deal with ordinary people and send nerds away.If such a system can also be called "rule of law", it would be a joke in the world!

In fact, Guan Zhong, the originator of Chinese Legalism, made it clear a long time ago. "Guanzi·Renfa" says: "The rule of law is the ultimate way in the world, and the practicality of the sage." The first sentence is very plausible, as if it advocates the rule of law, and puts "law" in a very high position.But then it showed its feet.It turns out that this supreme "law" is actually just for the convenience of the kings (the sage's practicality).Therefore, there are three relationships between man and law.If there is legislation, Guan Zhong calls it "living the law"; if there is law enforcement, Guan Zhong calls it "abiding by the law";It is the king who makes the law (the king who gives birth to the law), the officials who enforce the law (the subject who obeys the law), and it is the people who are subject to the law (the law follows the law and the people).If no matter who (monarch, minister, high or low, high or low) can have legal awareness, obey the law, and act according to the law (all follow the law), then that is governing the world.

So, isn't this "the king and his ministers, high and low, all obey the law" mean "everyone is equal before the law"?no!The so-called "all follow the law" means that the monarch has the power to legislate, officials have the obligation to abide by the law and have the power to enforce the law, and the people have the obligation to obey the law honestly.Obviously, in front of the "law" of Guan Zhong and others, the monarch, his subjects, officials and the people are not equal.The king has only rights but no obligations, and the people have only obligations but no rights. Officials are somewhere in between. They have a little "right" to the people, but only "righteousness" to the king.Of course, it is not objective to say that the king has no obligation at all.The king also has an obligation, that is to be able to govern the country according to the "law" established by himself. Don't count on what you say, don't follow the rules you set, let alone ignore the rules, that's all.It can be seen that although it is said that "all follow the law", how to "follow" is different; what "follow" is is also different.The "obedience" of the people is the "law of the king"; the "obedience" of the king is the "law of self-reliance".Is this also called "equality"? In fact, the "law" in ancient China has always been realistically and appropriately called the "law of the king", that is, the law of the emperor's dictatorship.In other words, as a mature country that relies on public power and legal regulations to manage society and handle affairs, the empire values ​​power more than laws.Their "laws" are only to ensure that there are no obstacles to the exercise of power. At most, they require the ruler to have a charter when exercising power, which can "regulate the exercise" (follow the law).This kind of "law" is not so much a law as it is a rule, a standard, a law, and a discipline.This one. Second, since these "laws" are "laws of the king", they are certainly not "laws of the people", and they will not consider the clauses that protect the rights of the people.What those "legalists" have to consider is how to protect their own rights and power; they are more concerned about how to suppress rebellion and punish disobedient ministers.Therefore, their interest in "criminal law" is far greater than that of "civil law".If there is any "civil law", in their eyes, it is nothing more than "laws governing the people"; and the so-called "judiciary" is nothing more than "listening to prison", or even just an opportunity for them to blackmail.That being the case, those people who are only intimidated but not protected by any means will treat these "laws of the people" in the same way they treat the government, and they can only avoid them in fear. However, even such a "law" is considered unreliable.Confucius said, guided by government orders and regulated by criminal laws, the people dare not commit crimes, but they have no sense of shame (government is based on the way, punishment is equal to punishment, the people are free and shameless).Guided by morality and regulated by etiquette (Tao is based on virtue, and uniformity is based on propriety), then one knows shame and is willing to submit, that is, "shameful and dignified" ("The Analects of Confucius").Therefore, even if legislation is made, morality and etiquette must be written into it, and it should be used as the program and foundation (for example, the Tang Law’s opening statement clearly states that “virtue and etiquette are the foundation of politics and religion, and criminal law is the use of politics and religion”).That is to say, the rule of virtue is the foundation, the rule of law is the end, ritual is the outline of the law, and the law is the purpose of the law.Obviously, neither the rule of law nor the rule of man is recognized.The rule of virtue is what the empire and its thinkers advocate. So, what about the "rule of virtue" of the empire?