Lecture Nine: The Contemporary Significance of Chinese Legal Culture
Chinese traditional legal culture has gone through more than 5,000 years of historical development, and has never been interrupted. As to this, no other ancient civilizations can stand side by side with Chinese legal history. Thanks to the long history of the development process without interruption, the accumulation of Chinese legal culture is very deep, with very rich content. It can be called as a treasure in the treasure house of Chinese culture. We should better explore the essence of Chinese legal culture, giving it full play in the great cause of establishing the rule of law with Chinese characteristics, as this is a significant wealth heritage from our ancestral ancient sages, and it’s the most important and abundant historical resources with the highest practical value. This is the first topic that I want to talk about.
Secondly, traditional legal culture is influenced by China's national conditions, because it is born on the soil of the Chinese nation, and its development has been affected by national conditions, so the traditional legal culture has been deeply marked by the national conditions, then what are the national conditions in ancient China?
First of all, ancient China is a country of agriculture, so there are also agriculture-oriented elements in the legal culture. In other words, the legislation about agricultural production, the land and taxation legislation connected with agricultural production are all important content in Chinese legal culture. In addition, another characteristic of the national condition in ancient China, is being influenced by Zong Fa system (the patriarchal system) and it pays much attention to Lun Chang (ethics). Lun Chang (ethics) refers to the relationship between father and children, husband and wife and between siblings, which is the most significant social relationship. In Lun Chang relationships, there is also content of Li (Rites) from Confucianism, such as the ceremony code, basic norms of Li and the rights and obligations in Lun Chang relationships. When these rites are combined with legal rights and obligations, this is what we call the combination of Li (Rites) and Law, which forms ethical law of ancient China, and the rule of ethical law is the rule of ethical law in ancient China. In this aspect, the ethical law of ancient China is a significant part of traditional legal culture, which is different from legal cultures of other civilizations, therefore the ethical law is also obviously marked with China’s national conditions.
For another example, the Chinese nation has always been advocating harmony and held the belief that harmony is precious, which is the principle of actions and dealing with people. It is because the Chinese nation advocates harmony, so that since Han Dynasty there has been mediation and arbitration of cases in the judicial area. When it came to the Tang Dynasty, using the mediation to quell litigations gradually became a kind of social morality.
Speaking of harmony, it’s not only about the harmony between people and the harmony between people and society, but also the harmony between human and nature. In other words, the problem of ecological balance merits more attention, which is also prescribed in the laws of ancient China. In spring and summer, everything is growing therefore it is forbidden to cut down forests, kill the fish and turtle or clog the waterways, to keep the spirit of vigor in helping the growth of everything. In judicial area, it is also noticed that the death penalty should be executed according to the change of four seasons, meaning timely execution. This is based on the Yin Yang and five elements from Confucianism, according to which the execution time of death penalty should be decided with the consideration of seasonal changes. Spring and summer are the seasons when everything is growing, therefore death penalty should not be executed; only in the autumn and winter, when everything is bleak, austere and chilly, death penalty can be executed. This is called execution according to the season. From the notice of natural ecological balance to execution according to the season, actually they all indicate the theory that man is an integral part of nature, which is a very significant and valuable part of ancient Chinese philosophy. And when applied to the laws, it is manifested in the protection of ecological and natural balance in legal culture, therefore the execution of death penalty should be adjusted to the change of seasons, which is generally but not absolutely the case. For instance, in Sui Wen Emperor's later years, he wanted to kill someone in June, but the minister advised him that according to ancient maxims, execution of death penalty should not be in June of high summer, and suggested to postpone the execution to autumn or winter. However, Sui Wen Emperor stubbornly persisted in his opinion and insisted to kill in June. And he also made his reason that there is thunder in June which can hurt people, then as the Emperor, why can’t he kill people in June? In this way, he was actually breaking the law with his intention, therefore Sui Dynasty only witnessed two emperors: Sui Wen Emperor and Sui Yang Emperor, and then came to the end. Then what is the reason for that? It is because Sui Wen Emperor who began to establish the rule of law in his early reign, started to breaking the law in his later years. As the ones abiding by the law would be strong, but he broke the law and the one breaking the law is supposed to lose, then as a result, Sui Dynasty only lasted twenty years before its demise.
This is to say that some officials had resigned from office and went back to their native hometowns, but when there were cases or disputes, the resigned official would be the one providing suggestion and mediation. Therefore, using mediation to solve disputes gradually became a kind of social norm in the Tang Dynasty.
In the Qing Dynasty, the mediation in litigation was in various forms, such as Tang Shang mediation—mediation by the judge, and Tang Xia mediation—mediation in private, like the mediation among relatives and neighbors complementing each other, therefore mediation became a primary choice in civil cases, including minor criminal cases. In this regard, if mediation can solve the case, then it would be the primary choice. Therefore, in the Qing Dynasty, mediation in litigation was also very popular.
The above points are all related to national conditions, and the agriculture-based economy paid much attention to Lun Chang (ethics) relationship, the combination of rites and laws, and was oriented towards harmony. There are also other aspects of Chinese national conditions, which I will not discuss now. But China’s traditional legal culture was born on the soil of Chinese nation, and its development was determined by national conditions, therefore its characteristics and the characteristics of each era are actually the reflection of national conditions, indicating the development change of historical eras. This is the second issue.
The third issue is about the role of traditional legal culture in today’s innovative rule of law with Chinese characteristics. Can the legal culture serve as historical reference? If yes, what is the reference significance? Here I will give a simple example.
One is that "if those who carry out the law act according to law, then the state will be strong, but if those who carry out the law does not act pursuant to law, then the state will be weak", which is also mentioned by President Xi Jinping in his speech. This maxim was said by Han Fei Zi in the Warring States period, who studied and summarized reasons of rise and decline of states before the Warring States period, and came to this conclusion that if those who carry out the law act according to law, then the state will be strong, otherwise if those who carry out the law does not act pursuant to law, then the state will be weak. Although this is based on experiences before the Warring States period, the conclusion has been recognized by later generations. This conclusion is also considered to be realistic and consistent with historical development of the reality, but two things merits some attention: for those who carry out the law, the law must be good law, and good law means the law can reflect needs of social development, the basic interests of the people's demands, and also reflects some of the disciplines owned by the country. There are good laws and bad laws, while the good laws are those accepted and supported by the public, reflecting social and historical development and national progress. In Song Dynasty, there was a well-known politician who was also a thinker and writer, called Wang Anshi, he once said, "enforcing good laws in a country, then the country would obtain great governance; enforcing good laws in the whole world, then the world would obtain great governance". This illustrates the function of good laws, therefore, for the state to be strong, those who carry out the law must act according to law, and the law here must be good and just laws.
In addition, there is another condition that the law enforcement officials must be upright officials. The law needs to be enforced by men to play its role. Good laws cannot play its due role without good officials to implement them. Only good laws are not enough, there needs to be good, honest and upright officials to implement the good laws. In this way, when those enforcing the laws act according to the law, then the nation can be strong. Without good and upright officials, good laws cannot function appropriately. As a result, Bai Juyi, a famous poet in the Tang Dynasty, once said: "if there are good laws but no good officials, then how difficult it is to have good governance!". As the era when Bai Juyi lived was an era with great emperor, but the political governance was in chaos. According to history, there were more villains than gentlemen, therefore, Bai Juyi lamented that even if there were good officials, but no good laws, it would be difficult to achieve good governance, and impossible to achieve the rule of law. Also, Wang Anshi once said that "if officials are bad, then even if there are good laws, no one would obey them." As to the relationship between officials and laws, if there are no good officials to enforce the law, then even if the good laws are so perfect, they will not be obeyed and there will be no rule of law. Therefore, only good officials combined with good laws can achieve the effect that when law enforcement officials act according to the law, the nation will be strong. This is a significant historical experience which still has great reference meaning for the construction of the rule of law in China. This is another point I want to talk about.
Speaking of the reference value of legal culture, we must talk about the relationship between ethics and law. Ancient thinkers and politicians believe that ethics can be used to educate the public, therefore, "to educate the public with ethics" (Yi De Hua Min) is to use moral ethics in civilizing and educating the public, purifying their minds and inner worlds so that people can be in the pursuit of goodness and nobility. Then they will be away from evil and "move towards goodness", in other words, through the ethics education, the public can have pure minds and noble hearts, and naturally they will not commit crimes. This is called "nourishing the hearts with moral ethics"(De Run Ren Xin), because moral ethics can make people learn goodness and be kind to others. However, only moral ethics are not enough, as Mencius once said "moral ethics only are not enough to implement the political governance" (Tu Shan Bu Zu Yi Wei Zheng), meaning if we only talk about the ethics, kindness and moral education, this is not enough to carry out the governance of a state. Then what else is needed? The law is needed because the law is coercive, forcing people to obey it, punishing crimes and constraining people from doing evil things. Therefore, if ethics are combined with the law, then they can complement each other, with ethics nourishing people’s minds and laws keeping the world stable (De Run Ren Xin, Fa An Tian Xia), and this has been recognized as early as in ancient China. For instance, in the 11th century BC, Duke of Zhou put forward the idea of "understanding ethics and carefully implementing punishment". He put ethics in the first place to emphasize that the public should understand moral ethics, which should be used to educate the public. When it came to the Han Dynasty, as for the relationship between ethics and law, it is proposed that "morality given priority over penalty"(De Zhu Xing Fu). And we have also mentioned that in the Tang Dynasty, "moral ethics and rites are the fundamentals of administrative education, while punishment is the manifestation of administrative education", which indicates that moral ethics and punishments are like the principles and means. This relationship is like nature’s dusk and dawn, and the change of seasons, which cannot be changed. Therefore, ethics and law complementing each other, using moral ethics to educate people and implementing the rule of law in the country is a significant content in ancient legal culture.
Here I would like to talk about the third point, "people are the foundation of the country, and when the foundation is solid, the state will be in peace" (Min Wei Bang Ben, Ben Gu Bang Ning), meaning the governance of a state should be people-oriented, and when common people can live and work in peace then the foundation of a country can be solid and in peace. This is a historical conclusion summarized by China’s ancient politicians and thinkers based on the rise and decline of states in history, which has also been proved by history to be an irrefutable truth, applicable in both ancient and modern, domestic and foreign states. There are also concrete contents of this principle in China’s ancient legal culture. To achieve taking common people as the foundation of a state, emperors are supposed to be open-minded, paying attention to "governance with ethics"(Wei Zheng Yi De), meaning implementing benevolent governance to win the support of the people, which is determining the rise and decline of the country. This is the first point. Secondly, to take people as the foundation of a state, the first is to benefit and foster the people, in other words, the legislation about people's livelihood is a significant part in ancient China’s laws. For example, the land legislation provides an opportunity for common people to make a living and to obtain the land. In addition, for social vulnerable groups, such as helpless people who are incapable of working and without relatives to support them, people who are old, very young, female or disabled and XXXX, the law has tilted towards them, namely the compassionate punishment, showing compassion for these people. If such people break law, as long as it’s not serious felonies, they can get forgiveness, or commutation, or exemption from punishment. Moreover, the idea of taking people as foundation of the state also appreciates the value of people’s lives, namely attachingimportanceto the value of human life. Confucianism talked about the greatest morality in the world is cherishing and protecting life, regarding life as the most precious and valuable thing. As a result, in ancient China, since the Wei and Jin Dynasties, the execution right of death penalty has been withdrawn by the royal court, and local authorities cannot execute death penalties arbitrarily. In the Tang Dynasty, there was review of death sentence, and all these systems and principles had been functioning until the late Qing Dynasty. In other words, the legal culture of paying attention to common people and the belief that when common people live well, the state will be strong and in peace, still has its practical value. Our president has also mentioned this issue several times. And this is the third point.
The fourth point is to govern officials according to tougher principles and establish an effective mechanism for the governance of the state. In ancient China, activities of a state were divided into four categories: Bing (military), Xing (criminal), Qian (financial) and Gu (production), covering every aspect of government affairs. Then who should be in charge of these four branches? The answer is officials, meaning officials are in charge of the country's internal and external functions, therefore, the state of officials is crucial to the rise and decline of the country. As a result, since the Warring States period when bureaucratic system was created, there has been the system of assessing officials, reflected by the system of examining and inspecting officials. In the Warring States period, there was already Shang Ji system (regular reports by local executives about local governance to the higher level authority), and later the system of assessing officials was supported by detailed laws, such as four merits and twenty-seven concrete standards in the Tang Dynasty, eight standards and punishments in the Ming Dynasty and six standards and punishments in the Qing Dynasty, and all of them are about official assessment. And the assessments are regular, once each three years, then there would be rewards or punishments according to the result of assessment, and sometimes the official could be ousted and became a common citizen. Such assessment system for officials has certain deterring effects on officials. In addition to this, there has also been supervision over officials, through which the supervisory organs came to monitor and inspect officials who broke the law. This monitoring system originated from the Warring States period and gradually developed into the system of "one censorate and three institutes" (Yi Tai San Yuan) in the Tang Dynasty, and later became the system of Inspection Institutes in the Ming and Qing Dynasties, therefore the monitoring and inspection system has been developing and expanding continuously. Moreover, there are laws in monitoring and inspection system serving as the basis of reviewing and correcting officials. So the reviewing personnel needs to act according to the law, and at the same time the law also prescribes that if the reviewing officials fails to act in accordance with the law, they will also be punished. With the the supervision system continuously improving and the supervision laws enriching, there was a great supervision code created in Qing Dynasty —Rules of Supervision Published by Imperial Orders (Qin Ding Tai Gui), when the network of surveillance nearly covered the entire bureaucratic system, which is a very broad coverage, but all aspects of national activities were covered in this system. Thanks to the assessment and supervision system, the quality and capacity of officials in bureaucracy system have been improved to a certain extent, while those guilty and corrupt officials have been impeached and punished, which purges the bureaucracy system. Therefore, it is because of the strict rules in governing officials in ancient China that the effective mechanism of governance can be established.
Today we are going to build a government under the rule of law, and we also need to treat our cadres andofficials seriously, ensuring that they can abide by the law, and achieve the purpose of a rectitude government.
Chinese legal culture has its rich content. Discarding the dross and there are still many things in this rich content that can pass through time and space, and be very valuable to our current construction of innovative rule of law with Chinese characteristics. Therefore, Chinese law culture is not only about knowledge, but also the summary of rich experiences about the rule of the country, and it’s a valuable treasure in the think tank of Chinese nation.