Chapter 31 An Outline of Research on Chinese Legal and Social History
1. Research objects of Chinese legal and social history The alarm bell of "historical crisis" sounded in the early 1980s has not yet been lifted.The imminent sense of crisis has aroused the high vigilance of historians, and turned it into a powerful motivation to expand their research horizons. A number of masterpieces have been published in the fields of cultural history, social history, and mentality history.For researchers of legal history, the journey of the 21st century cannot be said to be smooth and smooth, and crises and challenges in research concepts, research horizons, and research methods still exist.Only by facing the crisis squarely and daring to meet the challenges can we make breakthroughs and continuously produce new ones.Carrying out the research on the social history of Chinese law will be one of the countermeasures to overcome the crisis and meet the challenge.
Previous studies on the history of Chinese law mostly took the history of the political system as clues, and took slave society, feudal society, capitalist society, and socialist society as unit time periods. History textbooks are sufficient evidence.This method of dividing history according to class forms originated from the discussion of Chinese social history in the 20s and 30s of the 20th century (which is different from the concept of legal "social history" discussed in this article), and it emerged to meet the needs of revolutionary struggles. It is the reflection of political struggle in the ideological field. From the late 1950s to the end of the "Cultural Revolution", the special status of "class struggle" pushed the study of "historical allusion" and blindly serving politics to the extreme.In order to meet the needs of class struggle, historiography focused on the formation of the Han nation, the division of Chinese history, feudal land ownership, peasant wars, and the "five golden flowers" of capitalism.The division of historical stages and the determination of the focus of historical research have caused the study of legal history to fall into a simple rut: the development of legal history is synchronized with the development of social nature, and the division of stages is the division of social nature; the country is a class As a tool for oppressing another class, law is the superstructure and an integral part of the state, so it is a tool for class oppression; the definition of the function of law focuses on safeguarding the interests of the ruling class and oppressing the ruled class.The clues running through legal history are the political and military events that lead to the rise and fall of dynasties, and the class oppressive function of law is an enduring research topic in the field of legal history.
As we all know, almost every dynasty since the Xia and Shang Dynasties has a lot of written records about laws.As a traditional jurist, you can only care about what is written in the legal provisions, that is, how much it is worth at face value, but as a legal historian, you should not only pay attention to its provisions, but also pay attention to what is the motivation for the legal provisions and their actual functions. How big is it, what is the effect of practice, and what factors are affecting the function of the law, that is to say, how big is the actual purchasing power of the face value of the law.
Marxism always believes that human beings must first meet the basic material needs of life, including life styles such as food, clothing, housing and transportation, before they can engage in other activities.In history, the law was an important part of national politics, but the law did not always revolve around the ruling class or individual emperors, but rather the norms of people's daily life behavior, the basis of social organization, and the reflection of the people's mentality.The existence and development of law is inseparable from the largest social object—the middle and lower class people, the ever-changing social life, the slowly changing social structure, and the people's obsession with law.When studying the history of Chinese law, if one does not turn the perspective more to the social life of the middle and lower classes of society, and to the most basic social structure that affects legal changes, it is difficult to get out of the box of political system history.
There are many reasons for the emergence or demise of laws and regulations, but internal factors play a decisive role, that is, whether the "soil" on which it depends has changed or not.This soil is social structure and social life.Cultural rules and regulations must be compatible with the society in which they live in order to survive.The ancient Yanzi said: "Oranges grown in Huainan are tangerines, and those grown in Huaibei are oranges. The leaves are similar, but the taste is different. So why? The water and soil are different."
Marc Block (Marc Block) also said: "The little acorn can only grow into a towering tree if it encounters the right climate and soil conditions (these conditions are completely outside the scope of embryology)."
Without suitable climate and soil conditions, oranges will lose their taste and acorns will not be able to grow.As with Orange Oak, so with the legal system.
A famous European legal sociologist pointed out: "The focus of legal development is not on legislation, not on legal science, nor on judicial decisions, but on society itself."
Law change has a problem that no country or government can avoid, that is, what kind of new law will be established after the old law is broken.Because the certainty of the law determines that it can not only place a new law in a society and culture, but also consolidate and strengthen the old norms through the reorganization of the social and cultural order.To abolish a law, a new law that is more suitable for the times, social environment, cultural atmosphere and even political order must be created at the same time. Laws will gradually withdraw from the stage of history, and new laws will prevail in society and gain wide recognition and support from society.
Otherwise, "destroy the old and establish the new" will become a "castle in the air". In the history of Chinese law, there has always been the problem of "creating the new" and "breaking the old".However, whether the "new" law can be established or not often depends on whether the "new" law adapts to society, culture, and politics; even if it is to transplant foreign legal culture, it must have the soil and climatic conditions to make it take root.
The emergence of a certain law can declare the demise of a legal system, but it cannot indicate the arrival of an era of radical legal change, the completion of the task of modernizing the legal system, or the realization of a country ruled by law.
For example, the birth of the "Daqing Criminal Law" in the late Qing Dynasty marked the disintegration of the traditional Chinese legal system. Since then, China's legislative work has been imitating the modern Western legal system. By the time of the Nanjing Nationalist Government, the modern legal system with the Constitution as the fundamental law was basically perfected.It stands to reason that China should begin to step into the track of modern rule of law, but we know that the effectiveness of law should ultimately be reflected in its impact on the entire society.The above-mentioned legal system has not brought China into the ranks of a democratic constitutional government and a country ruled by law. On the contrary, under the cover of a seemingly sound legal system, it has continuously cultivated new autocratic politics.In my country, the perfection of legal provisions is far from being able to explain the arrival of a society ruled by law. As some scholars pointed out, "In the history of constitutional codes or constitutional government in the world, although there are many examples of constitutional codes promoting constitutional government, there are also many countries where constitutional codes are formulated. , and politics on the right track is always a phantom that cannot be turned into reality. Our constitutional history of more than 30 years is the most ready and recent example. Most people in the government should also learn enough historical lessons, that is, China's problem It can't be solved just by black words on white paper..."
Why is this so? It may be easier to find the answer if we examine the law in the context of society.
In my opinion, the history of Chinese law is not only the history of the legal system and legal thought, but also the history of the interaction between law, social structure, and social life, that is, the history of legal society.The definition of social history of Chinese law is: to study the history of the relationship between Chinese law and Chinese social structure, social class, social life and social mentality, with the purpose of revealing the internal relationship between Chinese legal development and Chinese social change, and exploring the history of Chinese legal evolution law.
Carrying out research on Chinese legal and social history will help to broaden the research horizon of Chinese legal history, enrich the research content of legal history, promote the updating of research methods, and make Chinese legal history full and three-dimensional.Carrying out research on the social history of Chinese law will also help reveal the internal relationship between Chinese law and social development, explore the historical trajectory of legal development, and reveal the root cause of the sluggish pace of modernization of the Chinese legal system.
2. The "long period" of history and the value of law in the study of Chinese legal and social history refers to "the positive significance or usefulness of law reflected in the relationship between the subject person and the object law. That is to say, only when the law The law is valuable only when it meets or can meet people's needs and forms a value relationship between people and law. The value and value of a legal system depend not only on the performance of the legal system, but also on a certain The subject's need for such a legal system depends on whether the legal system can meet the needs of a certain subject and the degree of satisfaction."In other words, the value of the law depends on the degree to which the law is suitable for a certain subject.As a certain subject, people are socialized people. The degree of people's needs depends on the degree of social development. The development of society is reflected in the various needs of people, and the legal value can only be reflected in people's needs.
How does the law meet human needs?This naturally involves the judging of legal value.There has always been ambiguity in legal circles as to what standard should be used to measure the legitimacy of the law itself.
There has always been a debate between natural law and positive law in Western jurisprudence.The theory of natural law formed since ancient Greece believes that: natural law represents the harmony of nature, so it is perfect and always correct; while positive law is due to the limitations of human cognitive functions, or self-interest affects the will of legislators, There are inevitably many disadvantages, so positive law must obey natural law, and its legality must rely on natural law to test. Positive law that does not conform to natural law is not legal, that is, "evil law is illegal." Positive law schools believe that law is law, "evil law The two propositions of "Yifa" are tit-for-tat from theoretical framework to practical experience.In traditional Chinese society, from the slave society, "the time will be wounded, I and you will perish", the peasants in the feudal era shouted "do justice for the sky", the bourgeoisie in the era of the bourgeois revolution announced the "natural human rights", and the proletariat "shattered Slogans and determinations such as "all old state machinery" and "implementing the liberation of all mankind" are almost all proofs of the victory of natural law.However, the "mob", "rebellion", "heresy", "counter-revolution" etc. from the mouth of the monarch or the official have vividly displayed the majesty and helplessness of positive law in the record book of history.
In my opinion, the political value of law is relative, and the historical value of law is eternal, that is, the law that adapts to the development and progress of society and the progress of human civilization can be regarded as "good law" and "stones from other mountains can be used to attack jade." The "long-term" historical research span proposed by social historians undoubtedly provides a durable yardstick for measuring the historical value of law.Fernand Blaudel, the second-generation leader of the French Annals School, in view of nearly a hundred years of historiography up to his time, "except for man-made dynasties and individual long-term interpretations, almost all of them focus on 'major events'. The political history of the center, the content and phenomenon of historical research are all short-term phenomena, pointing out that traditional historiography only pays attention to political, military, and diplomatic changes, but it cannot last long, and people can only see its erupting flames, so this kind of Changes are only the superficial level of history, "it is the most fickle and confusing period." The truly meaningful historical research should focus on the deep movements of history such as economy, population, social structure, and culture. This kind of movement is hidden. Slow, often cyclical, but determining the general direction of history.The long-term period is to target these movements.He advocated examining history with a long-term perspective.As a result, a new way of historical narrative emerged in the field of historiography, that is, the so-called "situation", "cycle" and "cycle" narrative methods, and there is even a "century-old trend" narrative method.This period is a slow passage, sometimes close to stillness.Starting from this semi-static deep layer, thousands of layers produced by the cracking of historical time can be easily understood; everything is transferred from the semi-static deep layer.Each "current event" contains a different primordial movement and a different rhythm: today's time begins both with yesterday and the day before yesterday, and with the distant past.They attempt to reveal, from the vagaries of political events and their episodes, solid states of unbreakable equilibrium, irreversible processes, uninterrupted regulation; Phenomena, cumulative evolutions, slow saturations, and some still, silent gigantic substrates buried under countless events by the chaos of traditional narratives.
For a relatively static society, the law is often advanced, and in a certain social period, it can effectively regulate social life and social structure.A relatively static society is in absolute motion, and its development and changes are "long-term".Facing the ever-changing society, the change of law appears rigid and slow.Changes in many elements of society, such as social structure, social life, and social mentality, are generally not reflected directly through changes in legal provisions. Emergence may also be resisted and blocked unless they are powerful and specific."In Chinese history, dynasties changed frequently, and the cycles ranged from decades to hundreds of years.
Almost all the superficial and direct reasons leading to the change of dynasties can be attributed to political, military, and diplomatic events. After the emergence of each new dynasty, a corresponding legal system must be formulated.These legal systems have their own characteristics of the dynasty.However, whether it is the Han Dynasty or the dynasties established by ethnic minorities, some basic principles or fundamental trends of traditional Chinese law, such as the monarch deciding the law, ritual punishment, etc., focusing on punishment, combining ritual and law, and Sinicization trends, etc. reflected in many laws.Behind the political, military, diplomatic and other factors, what are the most critical factors that dominate the nature of Chinese law?The "long-term" investigation method of social history can be regarded as a shortcut.
Social structures and social life itself are in constant change, though modestly and not always dramatically, but one thing is certain: they are always changing.The resulting Chinese traditional "customs and customs" and "ethics and ethics" are quite stable, sometimes even static and conservative, and the period of change is quite long.As customs change, the law changes with it.People often say that "laws change with time" means that they change with fashion, that is, with social structure and social life.For example, from the opposition of rituals and laws in the Spring and Autumn Period and the Warring States Period to the high degree of unification of the spirit and practice of rituals and laws in the late Song and early Yuan Dynasties, there has been a long history of more than a thousand years.During this period, the social structure, social life and social mentality have been changing slowly, deeply affecting the legal system.
Looking at the development of Chinese law, one of the important clues running through it is the history of the relationship between etiquette and law (or morality and punishment).During the Spring and Autumn Period and the Warring States Period, the opposition between ritual and law began to change after the Han Dynasty, and basically ended in the Tang Dynasty through the Wei, Jin, Southern and Northern Dynasties.However, judging from the implementation of Gangchang Mingjiao and the implementation of etiquette and law, until the Song Dynasty, the spirit of etiquette and law had not completely penetrated into social life and ethical structure, and the basic necessities of life of social members, the communication between men and women, and ethical concepts were basically in a free and open social atmosphere. , such as the dissolute appearance of scholars in the Wei and Jin Dynasties, the informality of Cao Cao, the extravagant and open clothing of the Tang Dynasty, and the "regardless of reading" of marriages in the Song Dynasty, etc., are not in line with the etiquette norms and spirit of later generations.The issue of women’s chastity, which can better reflect the spirit of etiquette, actually did not discriminate against widows remarrying before the Song Dynasty.The so-called "Han and Tang style" refers to the style of freedom and openness to some extent.Cheng-Zhu Neo-Confucianism, which elucidates Confucianism, also prevailed after the Song and Yuan Dynasties. Zhu Xi's Neo-Confucianism was denounced by the government as "false learning" in the late Southern Song Dynasty (banned by the Qingyuan Party in 1196). It was many years (1313) that Zhu Annotation of "Four Books" was designated by the Yuan Dynasty as a compulsory book for imperial examinations.Cheng Zhu's philosophical thoughts adapted to the general trend of division and unification after the Song and Yuan Dynasties and became the official philosophy, which is very popular.Although it is said that "Tang law is consistent with rituals", the high degree of unification of the spirit of ritual law, the system of ritual law, and the practice of ritual law occurred after the end of the Song Dynasty and the beginning of the Yuan Dynasty.The entire development process of traditional Chinese law cannot be summarized by the staged feature of "integration of etiquette and law".
For another example, the direct cause of the revision of the law in the late Qing Dynasty was the "recovery of extraterritorial jurisdiction." The most notable achievement of the revision of the law was the formulation and promulgation of the "Daqing Criminal Law".Its appearance is a turning point in the decline of the traditional Chinese legal system and a milestone in the modernization of the Chinese legal system.The reason why it can take root in China is of course inseparable from the motive of recovering extraterritorial power, but its soil and climatic conditions were provided by the changes in social structure, social life, and mentality of all social classes in the late Qing Dynasty. These changes began in the middle of the Qing Dynasty. It started, and at the end of the Qing Dynasty, this momentum continued unabated, and the separation of etiquette and law became a fixed trend.Under this premise, a group of new legal "elites" with a way of thinking very different from the traditional legal "elites" emerged to preside over the revision of the law. Coupled with external opportunities such as "taking back consular jurisdiction", it was finally completed under certain political pressure.To analyze the separation of rites and laws in the late Qing Dynasty, we have to trace back to the evolution trend of social structure, social life, and social mentality since the middle Qing Dynasty.
Therefore, the study of Chinese legal history should not only focus on short-term and sudden events, but also broaden the time period and focus on finding the root and law of legal evolution.
3. Social Structure and Chinese Law Social History Research Yearbook School puts "structure" at the top of the "long-term" issue, and believes that the so-called structure refers to an organic and rigorous relationship formed between social reality and the people and a fairly fixed relationship.There are structures which, by virtue of their long existence, are constants which are transmitted from generation to generation and which are continuous: they impede or influence the progress of history.Other structures disintegrate more quickly.But all structures have the function of promoting and hindering the development of society.It can be imagined how difficult it is to break the ideological limitations of certain geographical patterns, biological views, and productivity limits (spiritual frameworks are also limited by long periods of time) (for example, geographical restrictions and vast cultural fields also have the same stability and survival. sex).British Hobsbawm also believes that: "The history of society is the knot between the general pattern of social structure and change and the specific phenomenon that actually occurs, and this is true regardless of the logical scale of geographical or chronological research. of."
In traditional China, the patriarchal clan structure is the most basic social structure, centered on patriarchal power, and adjusting the relationship between clan and family members has become the main responsibility of traditional law.The reason why Chinese traditional etiquette is enduring is that it fits well with the structure of our country's social hierarchy and patriarchal clan spirit.For example, Chen Yinke said that since ancient times, there have been theories that violate the three cardinal principles and six disciplines in our country. For example, Buddhism has spread and prospered in China, but the theory of principles and disciplines left over from past generations in China has not been shaken because of it. It is said that the social and economic system on which it relies has not undergone fundamental changes, so it can still be used as a place to stay.”Mr. Qu Tongzu also pointed out that "the main characteristics of ancient Chinese law are manifested in the concept of familyism and class".Since the Zhou Dynasty, in the system of etiquette and law, the protection of the interests of the clan has been placed in an important position.The legacy of the law maintaining the clan system continued until the end of the Qing Dynasty.But the meaning of clan has not been set in stone throughout history.In the pre-Qin period, the whole country and family were integrated to form a typical patriarchal country, which was a period when patriarchal blood and national politics were highly integrated, manifested as the patriarchal clan system; from the Warring States period to the Qin Dynasty, the patriarchal system was destroyed; From the Han Dynasty to the Sui and Tang Dynasties, the clan system was restored, and the era of clan and gentry clan system appeared; after the Five Dynasties, the gentry gradually withdrew from the historical stage, and the form of clan changed accordingly. The society after the Song and Yuan Dynasties was dominated by bureaucrats. The background of bureaucrats has several classes, which tend to become civilians and become the basic cells of society. The bureaucratic clan and the clan of gentry constitute the main form of clan.The modern family system began in the Song Dynasty.The spirit of the previous patriarchal clan tradition has been shaken, but it is not abolished, but the center of gravity has shifted downwards, and it has become a common folk "family system".
Clans are changing, and the laws regulating clan relations are also constantly changing. Generally speaking, the spirit of national laws and clan laws is basically the same, and both are to create a social order based on the principle of hierarchical ethics.The national law is the extension and guarantee of the clan law, and the clan law is the supplement and refinement of the national law. The combination of the two jointly maintains autocratic rule.Only by comparing the evolution of the clan structure with the changes in the law can we fully grasp the function and status of Chinese legal clanization in maintaining the autocratic regime system.
The national structure is based on the regional social structure, and the law is one of the important links between the regional structure and the national structure. Many national laws in China are complementary to regional customs, local customs and other customary laws, or they are inseparable. Conflict and compromise coexist, dependence and rebellion co-exist, and official law and local sentiment, reason, and customs often form a three-dimensional judicial picture.Strengthening the research on the relationship between law and regional social structure is beneficial to analyze the characteristics of Chinese social structure as a whole.The relationship between rural community structure, township community structure, minority community structure, etc. and legal control, etc., are worthy of research.
Taking the rural social structure as an example, China is a large agricultural country. The rulers of all dynasties have paid attention to controlling farmers by using political institutions at all levels.How to construct the rural regime in a legal sense is a major issue that haunts the rulers of all dynasties.In these power structures in the legal sense, some systems, such as the Baojia system, have existed in the countryside for a long time.This grassroots political organization, which had been formed during the Spring and Autumn Period, lasted until the eve of liberation, and experienced a long period of time.To understand the historical household registration management system, taxation, and rural power structure, the Baojia system is an element that cannot be ignored.
The research on the Baojia system should not only pay attention to the existence and history of the Baojia system, the characteristics of the Baojia, the reorganization of the Baojia, the laws and regulations of the Baojia, the operation mode of the Baojia, and the household registration survey, but also pay attention to the relationship between the social members living inside and outside the scope of the Baojia and the Baojia. , such as the main body of Baojia members (including rulers, administrators, and ruled), the identity and legal status of Baojia chiefs, rulers and Baojia, farmers and Baojia, modern political groups or parties and Baojia, etc., linking with Baojia Combining social members with the practice of the legal system, we can see its actual effects through the system itself.
Examining how the law regulates the structure of township communities will give us a better understanding of issues such as rural society, commodity economy, and civil society.For example, according to the general popular view, people in ancient China were afraid of going to court. "No lawsuit" is the ideal social order among the people. The ideal means of "order" is enlightenment, not prison.But this is only a general conclusion, far from covering the characteristics of the entire Chinese rural society.For example, in the Huizhou area of the Ming and Qing dynasties, there were a large number of "marriage certificates", surrogacy documents, succession documents, and commercial contract documents, which can generally be regarded as documents for labor sales and business exchanges. To a large extent, it is supported by "contract and reason", even among relatives.This is closely related to the environment of Huizhou and the fact that many Hui people go out to do business. It is a feature that distinguishes Huizhou from other regions. Because of this, Huizhou became a well-known hometown of merchants in the Ming and Qing Dynasties.
The study of the relationship between the laws of the Han nationality, the laws of ethnic minorities, and the social customs of ethnic minority regions is of great benefit to the understanding of the integration process of different legal cultures in the big ethnic family and the diversity of Chinese legal culture.
In short, exploring the relationship between law and regional social structure can establish a multi-level research system and form a multi-dimensional perspective for the study of legal history.
4. Research on social class and Chinese legal social history "The movement of all progressive societies is a movement of 'from identity to contract'."
This is a famous quote from Maine, England.
To be more specific, any society that transforms from tradition to modernization must go through the process of transforming from an identity society to a contract society, but there are priorities in terms of time and intensity.Traditional Chinese society is a typical status society. Its longevity and vitality are second to none in the world.Traditional Chinese law plays a vital role in maintaining social order of identity.In traditional Chinese society, slave owners and slaves, peasants and landlords are two opposing classes, and there are several other classes.The two opposing classes are not monolithic either.Within each class, there are several levels. People with different social identities form different social classes and play different social roles.When we analyze classes, we must not only see the two major blocks of opposing classes, but also see their multi-layered nature.We are more in favor of changing the "class" in the sense of adapting to the needs of "class struggle" to the "class" in the sense of "class" for understanding, and conducting a comprehensive analysis of the object of legal norms.
This was the case with the landlord class in ancient China.Landlords at different levels have different legal status.If we only divide political privileges, that is, whether they belong to the official rank or rank, the Chinese landlords generally include wealthy landlords and commoner landlords, also known as "identity" landlords and "non-identity" landlords, or "rank" landlords and non-identity landlords. "Grade" landlord.But in terms of economic status, occupational characteristics, and social functions, the hierarchy of this class is far more complicated than this.For example, in the landlord class during the Qin and Tang Dynasties, there were emperors, clan nobles, noble bureaucrats, gentry (or aristocratic families), disciples, assistant officials, folks with noble ranks, tyrants, and non-identity landlords among the common people.Among the landlords in the Song and Qing dynasties, there appeared gentry landlords and common people landlords.As landlords, they have differences in the privileges of exempting tax and service, hereditary privileges, the right to be an official, the right to private households, and the right to control public opinion.
Changes in the status of legal norm objects often become a symptom of social change.For example, in the untouchable class, legal provisions often restrict the activities of the slave class. In fact, in traditional Chinese society, the untouchable class has several levels besides slaves.In the Qing Dynasty, the ranks of untouchables included slaves, servants, beggars, fishermen with nine surnames, prostitutes, happy households, tenant servants, servants, companions, and officials.Legal identities are different at the same level. Among slaves, there are slaves who buy and sell slaves, who take refuge in slaves, and who are not native slaves;The rights and obligations of all untouchables are strictly restricted by express laws or customary laws. They cannot intermarry with their loved ones, and cannot participate in normal political and social activities without a special license from the government.However, the legal status of the untouchable class also changes in different periods, which can affect the social order, reflect changes in personal attachment relationships, reflect the needs of social relations and productivity development, and reflect the trend of social development.For example, the limited exemption of untouchables during the Yongzheng period was basically consistent with the weakening trend of the traditional affiliation relationship after the implementation of dividing the people into the mu.During the period of the provisional government of the Republic of China, regulations such as the prohibition of buying and selling people and the abolition of the slavery system heralded the advent of a new historical era.
Legal objects are divided into different social groups according to gender, occupation, position, age and other conditions.The legal status and life behavior of social groups are important factors that affect the functioning of legal society. Research on the history of legal society should pay attention to this.For example, in terms of gender groups, the legal status of men and women around the world has undergone a process of change, especially for women.Changes in the rights and obligations of women groups often reflect the degree of civilization and progress of a society or a country.In most countries in the world, the legal restrictions on women's groups were once stricter than those on men's groups, including their marriage rights, property ownership, official rights, voting rights, education rights, social rights, child custody rights, and work rights. and the right to life, etc.In traditional Chinese society, women are especially restricted by etiquette.Today's Chinese women have already enjoyed the same legal rights and obligations as men, which was not the case in traditional China.Legal history scholars still need to pay more attention to the legal status of women in history, the degree of fetters on women by traditional etiquette, the social role of women in various periods, and the relationship between women's personal liberation and the transition from traditional Chinese law to modern law.
In addition to the objects of legal norms, among the judicial subjects, there are also many social groups worthy of our dissection and analysis.In Chinese history, legal operations were dominated by government actions, and legislative, judicial and other actors were mostly presided over by the state or government officials.However, in judicial practice, there are still many intermediate acts performed by unofficial persons.They do not belong to the formal establishment of government agencies, but play a pivotal role in effectively putting legal norms into practice.Without an understanding of the overall appearance and activities of these social groups, a comprehensive grasp of the judicial situation in history is bound to be lacking.For example, the group of lawyers who are indispensable in today's judicial practice has appeared in the Spring and Autumn Period according to historical records, such as the generation of Zheng Guodeng Xizi and so on.During the Ming and Qing Dynasties, townships were also called "litigators". Ordinary people were afraid of going to court, and litigators were afraid that there would be no lawsuits to fight.Some unscrupulous litigators often find excuses to start lawsuits, and even collude with the government, which not only eats up the plaintiff, but also harms the defendant.
The term "bad litigator" or "litigator" is their nickname.The source of personnel, living conditions, activity rules, and influence on the trial of cases should all be included in the field of legal social history.For another example, the group of “shiye” (also known as muyou, shogunate, mubin, aide, etc.) in the Ming and Qing dynasties was closely related to judicial practice. They were different from private litigators. Qiangu and clerk affairs have no official positions and belong to miscellaneous personnel.However, its role in local judicial practice should not be underestimated.In the Qing Dynasty, all the governors and governors, as well as the magistrates and county magistrates, had to hire masters to handle government affairs. There was a saying in society that "there is no government office without curtains".Criminal, civil, and economic cases handled by the local yamen almost all go through the hands of the master, who can be called a "judge who is not a judge." effect.Similarly, the composition of lawyer groups in modern times, their relationship with clients, judicial institutions, judicial officials, etc., their political and social status, their role in judicial practice, etc. should all be studied in modern times. More attention should be paid to the judicial system and judicial practice.
V. Social life and research on Chinese law and social history Montesquieu said in "The Spirit of Law" that "the law formulated for the people of a certain country should be very suitable for the people of that country." "It should It is related to the degree of freedom that the political system can tolerate; it is compatible with the religion, sexuality, wealth, population, trade, customs, habits, etc. of the residents"... In a word, the law should be in harmony with politics, society, and customs.
Famous jurists or legal sociologists such as Durkheim and Henri Breuer also pointed out that law is changeable and diverse like social groups, and it more or less perfectly expresses the will of social groups; Like language, art, religion, etc., it is a reflection of social life, and it cannot be separated from other social phenomena that are closely related to it.They both see law as a reflection of society, and that law should "fit" people's social lives.
Many features of Chinese law are influenced by social life.Social life is mainly divided into two categories: social material life and social spiritual life.As far as material life is concerned, an important function of "rituals" in the traditional Chinese legal system is to "prohibit chaos and stop disputes." This is determined by the lack of social wealth and the unequal ownership of wealth among social members. In the case of social division of labor, social occupation, and social status, there are high and low levels, and people's unequal ownership of social wealth will follow.In order to maintain this level of difference and prevent order disorder, we must start with people's daily material lifestyles, use strict etiquette norms or etiquette systems, limit the consumption standards of people of different levels, and control their material life.
Political events are changeable and material life develops slowly. "From the variability of politics to the slowness characteristic of 'material civilization', the levels of analysis become diverse: each level has its own unique breaks, and each level contains with its own peculiar divisions; the closer one approaches the deepest level, the greater the rupture."西周时期提出的“礼不下庶人，刑不上大夫”之原则说明，针对社会生活方式的“礼”所规范的客体主要是社会上层人士，刑罚适用上也具有等级性。秦汉以后，随着礼与法的逐步融合，礼法规范的客体逐渐下移。 《唐律疏议》已在第二十六条《杂律》中出现了“舍宅车服器物违令”等规条。明清时期，《大明律》、《大清律例》中，《礼律》已单列一部，“仪制”、“祭祀”则分别对社会成员的物质生活方式作了一揽子规定。加上明通礼、清通礼、会典、各部则例、会典事例等颁布施行，上至皇亲贵族，下至贱民阶层，生活方式都被礼法制度严密规范。学界以往对礼法与社会上层如皇室贵族等生活方式的关系注意较多，对礼法与社会中下层生活方式的关系的研究相对不够。而广大社会中下层的生活方式，又是促进法律变革的强力动因。
传统中国社会，民众物质生活方式诸如衣食住行、婚嫁丧祭、人际交往等，都在礼法规范之内。专制政府多以“安上全上、莫善乎礼”为指导，强调礼法在社会生活中的“辨等威”、“议数度”的作用。“等威”、“数度”突出表现在人们物质消费上的上下、尊卑、贵贱差别上。统治者企图凭借一种“文化优势”来维护自己的特权地位，即通过种种文化方式，使得被统治者能在心理上接受他们的统治，并且产生这样的观念，即现存的任何权威甚至剥削方式都是一种自然演进的产物，他们的权威也是不容置疑的。因此，特地制定了一套衣食住行、婚嫁丧祭等物质生活等级规章，依靠独特的标志来显示自己的权威，防止任何对其“优势”构成威胁的行为。谁要是违背礼法，随时都会受到制裁。
政府制定并推行礼法，除了“辨等威”另一个重要目的就是通过教化形成一种俭朴、守成的社会风气。生活俭朴了，就符合统治者的礼法标准；生活奢华了，就是“民风浇漓”与礼法要求格格不入。
它与专制政府推行的崇本黜末措施相配套，在礼法制度宣传实行得比较好的地方，民众生活方式基本处于俭朴、循礼的状况；物质生活的俭朴循礼，又使人们的传统伦理观念进一步增强。物质条件越是低下，人们就越容易崇拜祖先，崇拜权威；社会生活方式的变化越是缓慢，礼法强制功能和教化功能就愈突出，社会生活的惯例也就更易与法律保持一致，产生相应的法律效应。这样，“专制国家的礼仪和风俗就较少改变。风俗较为固定，所以就近似法律”。
在社会生活中，即便是细微的生活方式，有时一样能浓缩社会大背景、映现社会变革、体现民族矛盾等轰轰烈烈的历史活剧。如衣冠服式、身体发肤等，今天看来只是个人生活习惯，反映了民众社会生活情趣，历史上有关礼法制度却常常将此类习惯行为变为强制性行为准则，演化成分辨民族文化的标志。“披发左衽”在孔子时代是汉人分辨夷狄的重要标识；剃须发，秦汉间为刑罚制度之一；剃发留辫，为清代满人征服汉人的一种手段；剪辫发，易衣冠，清末民初则成了革命的象征。这些日常的生活方式贯穿于历史变迁之中，折射出法律状况。法律史研究不应遗忘这些能因小见大的社会生活细节。
社会精神生活，是指民众表达喜怒哀乐情感、寻求精神寄托、参加社会交往的行为方式，包括宗教信仰、文化娱乐、祭祀祈祷等生活方式，是民众应该享有的自由，反映了社会成员的生活心态。然而，在传统中国社会，这些精神生活方式无不受到法律规范的制约。律文或例文中的“亵渎神明”、“禁止师巫邪术”、“禁止迎神赛会”等禁条，都为控制民众的精神生活而设。由于精神生活内容丰富多彩，而礼法条文相对稳定，于是，皇帝谕旨、例文、地方行政法规等，都相继成为制约社会精神生活的法律性规范。
法律控制精神生活的效能主要取决于精神生活与法律的适应度。
如果社会精神生活的发展与法律要求基本一致，两者之间就能保持相应的协调性，法律的常规功能就能得到很好体现。反之，法律的常规功能就会受到削弱，代之而起的将是超常规权力。法律规范与精神生活之间制约与反制约、控制与反控制的关系，法律条文的可操作性程度，官僚机制及皇权在司法实践中的作用等问题，从社会成员的精神生活与法律的互动中较易获得答复。
如政府常常鼓励祭神，并在礼法制度中，规定了无数大大小小的祭祀对象及祭祀方式，试图垄断信仰权力，控制民间私自祭神及相关的娱乐活动，在整顿社会风气的同时，对民众的精神生活也造成了不少负面影响。清朝前期就出现过类似的情况，民间许多祭神活动迷信成分极大，耗财颇多，政府加以禁止，起到整顿社会风气之实效。然而，对于许多民间流传已久的正常娱乐活动如“瓦舍”、“博戏”、迎神赛会以及正常宗教信仰活动如妇女入庙烧香等也一并取缔，士民百姓本来就很贫乏的精神生活更加单调无味。民众娱乐生活中，只剩下与礼制思想相符的忠孝义节之类的项目。
专制政府利用礼法控制精神生活，抑制民众的自然欲望，旨在培养传统道德情感，用忠孝仁义礼智取代其他杂念。民众的人身自由进一步丧失。正如严复曾经在评论礼法对精神生活的影响时所说的那样：“法律之所禁，皆其事之害人者。而风俗之成，其事常关于小己，比如妇女入庙烧香，又如浮薄少年，垂发复额，至种种衣饰好尚，凡此皆关风俗，皆关小己，为民上者，必不宜与聚赌讹诈之类等量齐观，施以法典之禁，何则？烧香束发，人人皆有行己之自由也。”
法律对精神生活控制越是有力，传统的生活观念和生活方式越是占据上风；一旦法律失效，专制政府往往采取超越法律程序的行政手段，实施监控，正常的司法手段被行政行为所取代。如孔飞力《叫魂》一书中解析的“叫魂”习俗，本是一种民间迷信活动，属于民众个体生活行为，一般不会成为社会化的活动，构不成对社会、政治体制及专制皇权的威胁，甚至够不上“师巫邪术”一类的法律惩禁。然而，这一个体习惯在清朝乾隆三十三年（1768年）因为人为的推波助澜而引起了一场全国性大恐慌，从而暴露出盛世之下的一系列危机，如民众精神依托的多样化、官僚君主制中常规控制发生障碍、帝王控制权的鼎盛与衰落、司法运作中正常程序紊乱等。作者通过对“叫魂”这一普通习惯作精细描述，并由此递进到司法运作与社会控制的高度，凸显了专制社会后期皇权在司法运作中的作用及传统司法运作手段日渐式微的趋向。
法律制度的发展，很大程度上受制于社会生活的变化。随着物质生活方式和精神生活方式的变化，法律只有不断调整与社会生活的关系，才能适应时代，应用于社会。例如，传统礼法规定的服饰、轿舆等级规格，到了清末已失去实用价值，因为国门大开后，新款洋货潮水般涌进，民众喜新厌旧，纷纷使用新式的车马服饰，有关礼法制度因失去规范的客体而形同空文，已无存在必要，有关制度不废不行。
同样，当精神生活呈现出普遍的反礼法趋势时，“法不责众”的定律经常得到应验。如礼法所禁止的妇女入庙烧香、观剧看戏，乡镇民众迎神赛会等事宜，清朝中期以后比比皆是，禁不胜禁。统治者如乾隆帝等，干脆网开一面，听之任之。无形之中，宣告了相关制度的废止。社会生活方式始终如暗流潜动，缓慢地推进法律变革。
六、中国法律社会史研究方法思考关于中国法律社会史的研究，中外历史学者、法律史学者均有力作问世。瞿同祖的《中国法律与中国社会》堪称中国法律社会史研究的经典之作。专题和断代研究方面，也有不少专著和论文，显示出作者们观察法律与社会之间关系的独特切入点和较深的研究功力。但无论在选题的广泛性上，还是在研究手段的多样性上，已有的研究与“法律社会史”这一庞大命题的要求尚有很大差距，仍需要多视角、多层次、多领域加以探讨，具体说：首先，要加强对中国法律社会史的理论研究，不断开辟新的领域。法律社会史的研究领域非常广阔，法律与社会各阶层尤其是社会中下层的社会生活、法律与区域社会结构、法律与社会群体生活等，都需要进一步开拓研究。
其次，要引进相关学科的方法，更新研究手段，借鉴研究成果。
法律社会史既是法学与史学的结合体，又处于两者的边缘，具有较强的跨学科性。在研究方法上，应以法学理论为基础，以社会演变为线索，多从相邻学科取经。目前，在许多法律社会史的课题开辟上，社会史学者往往走在法学者的前头。历史学者不断挖掘考证、整理利用资料的功夫值得我们借鉴。
再次，要重视资料的挖掘、整理和利用。法律社会史资料除了正史资料、官方文献，地方档案、碑刻、族谱、契约文书、方志、笔记文集、小说戏曲、田野资料、口碑资料等，都应纳入搜罗范围。两类资料中，前者粗略笼统，后者具体细微；前者偏重上层社会，后者偏重中下层社会；前者政治倾向突出，后者大众化色彩浓厚。从事法律社会史研究，对后类资料要给予足够重视。国内外已有不少学者在这方面用功颇多，并取得相当的成绩。不过，这在整个法律史研究队伍中所占比例甚小，若有更多学者加入这一行列，成果会更加丰硕。
总之，中国法律社会史研究只要注意微观研究与宏观整合结合，精细描述与理论升华结合，扎实史料与多学科方法结合，中国法律史研究园地必将更加绚丽多彩，鲜活生动，法律史的研究成果也将越来越多地走出象牙之塔，接近大众。
Notes:
Notes: