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The Core of Chinese Legal System’s Cultural Spirit and Its Implementation

Author: DengYong
Tutor: HuoCunFu
School: Jilin University
Course: Legal Theory
Keywords: Chinese legal system QINGLI spirit QINGLI model TIANDAO TIANLI rewarding virtue and punishing vice QINGLI curve concrete human feelings meaning system
CLC: D909.2
Type: PhD thesis
Year: 2009
Downloads: 847
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Abstract


It is an indispensable topic to understand the nature and the core of the Chinese legal system. The author is quite in favor of the general view of the saints about the legal system. The author believes that there are sufficient grounds behind those comments and the great effects of the legal system in the historical practice have its own deep reasons. In this paper, the author explores the grounds and reasons in the view of the legal system model and tries to find out the magnificent source of the Chinese legal history. The basic knowledge about the phenomenon and the cognition of the Chinese legal system in the academic fields is very valuable and it functions as the foundation of this paper. To further understand the core cultural spirit, the recent cognition of the law phenomenon and its nature is not enough. Enclosing the topic that how did the ancient legal cultural spirit keep the Chinese legal system permanent, the paper illustrated the glamorous source and the meaning system of the Chinese legal system and tried to re-exhibit the magnificent orient prospect under the efficient ancient law. The paper would use the problem-researching methods, the history- analyzing method and the culture- modeling method to illustrate the topic from life angle, all-sides angle and meaning system angle. Abiding by TIANDAO TIANLI and human natural feelings, Chinese legal system has earned highly respect and trust in the whole community and has played a very important role in maintaining the social and cultural orders, for which contains a kind of“QINGLI spirit”rooting from Chinese cultural system. The author mainly discussed the topics from the following five aspects apart from the preface (Chapter one) and the conclusion (Chapter nine):Part one (Chapter three), clarifying the analysis part of the paper from the view of the ancient legal life. It has been investigated that TIANDAO TIANLI, cultivating, punishment by law, human nature and the QINGLI spirit are the main factors in the ancient legal life. The core of these factors is actually the so-called“TIANLI, legislation and the human natural feelings”by the ancient people. But the inner-relationship of these three factors can’t be fully understood by the people nowadays and the author believes that the reason comes from the unclear concept category and the blurring cultural structure. Thus through analyzing the important factors of the ancient legal life, the author proposed the seven vital factors to illustrate the medium and deep meaning of the ancient legal system.In Part two (Chapter five), the author summarizes the medium fields of the ancient legal life and draw out a basic structure, that is,“TIANDAO TIANLI, emperors’intention, officials’intention and human natural feelings”. These four factors are interactive and form a steady structure. First of all, TIANDAO TIANLI is the spirit resource of the ancient law. Emperors and officials should govern the country according to TIANDAO TIANLI to receive the good effect, which keeps a close relationship between the TIANDAO TIANLI and emperors or officials’intention. Secondly, emperors’intention and officials’intention are the governing intentions of the society of ancient times. They keep the relationships of harmony and interaction. At last, these two factors and the governed human natural feelings keep the relationship of consideration, conform, conflict and harmony. This kind of structure is similar to the“ideal type”of Fei Xiaotong, which is a real structure and permanently existed in the Chinese legal system.Part three (Chapter six), using the QINGLI model to summarize the medium and deep meaning of the ancient legal life and to illustrate the surface meaning. The author believes that there are three implementation conditions of the QINGLI model or the ancient law. In the super-normal times, the basic structure and QINGLI spirit are closely interwoven. In the normal times, the basic structure and QINGLI spirit are basically interwoven. In the trouble times, this structure was incessantly recovered and reconstructed according to QINGLI spirit. An omnipresent QINGLI spirit is revealed in the basic structure, which is combined with the all kinds of important factors and formed the“QINGLI model”in this paper. That is to say the legal cultural model is formed by the interaction of QINGLI spirit and the seven important factors---TIANDAO TIANLI, wills of country administrations by emperors, wills of country administrations by officials, expressions of people’s or officials’nature, expressions of officials’nature, expressions of emperors’nature, and people’s direct will. The model contains influences from both positive and negative elements and it can explain every aspect of the Chinese legal system effectively. When the ideal spirit of Chinese legal system implemented normally QINGLI spirit is the hinge and the emperors’nature and officials’nature are the decider of the ways of governing, and the objects, the subjects and the ways of governing incline to TIANDAO TIANLI. Adjusting implementation inferred that there would be a problem about the emperors’nature and officials’nature, which was contradictory to TIANDAO TIANLI. This condition would lead to the people’s insurrection and urge the change of wills of country administrations by emperors and wills of country administrations by officials or the renovation of the dynasty to restore the normal implantation of the basic structure.In Part four (Chapter seven), the author summarizes the connotation and the actual implementation of the QINGLI spirit in this model. It can be drawn that the hierarchy and the correspondence of QING and LI from the actual situation of ancient people, that is,“kind feeling-normal feeling-evil feeling”(the ways of seeking or realizing the emotion and the requirement is kind, normal or evil)The wills of country administrations by emperors and the wills of country administrations by officials, expressions of people’s or officials’nature are inclined to TIANDAO TIANLI and human natural feelings in the QINGLI model, from which we can draw that QING and LI are two vital factors that the administrators should considered. The decisive factor resulting such situation comes from the QINGLI spirit of TIANDAO TIANLI, which takes rewarding virtue and punishing vice as its basic goal and TIANDAO TIANLI as its final target. It kept a steady basic structure and urged all the factors to kindness. In order to realize the basic and final goal, the ancient law took QINGLI as the criterion to evaluate people: people abiding by the basic QINGLI would not be punished; the judicature and the legislation would receive more acception by the people and administrative result if it can abide by the supreme QINGLI. Thus QINGLI and QINGLI spirit can be clearly defined in QINGLI model. QINGLI is the basic rule to weigh everything in the ancient legal life and it is the combination of the human general feelings and the general reasons, and it is the most basic requirement about human’s virtue and morality which is also the basic requirement for human qualification that law ask everyone to do. The intrinsic of this article was Mencius remarks about“SI DUAN”, that is all human being’s sense of compassion, shame, reverence and morality or Confucius’filial and brotherhood. The supreme human’s virtue and morality can be classified as the lower, middle and total virtue and morality. The former two are the“normal”in ancient people’s remarks and the latter is TIANDAO TIANLI. The ancient law requires that the administrator should reach the basic and the lower virtue and morality and advocates them to reach the middle and total virtue and morality. It is a“proper”requirement. QINGLI spirit used today aims at the administrators (emperors and officials) and is based on the soul of the ancient law. It is the administrators’requirement about QINGLI during the course of legislation. To understand the administrative objects’“kind feeling-normal feeling-evil feeling”and“TIANLI-normal reason-abnormal reason”behind it, the administrators are required to possess the lower virtue and morality. If the administrator could possess the lower, middle and total virtue and morality they would get the result of the partially and completely abide to QINGLI.“QINGLI spirit”is the kind spirit which needs the active master of objects’general feelings and general reasons by the administrators, i.e. the administrators should seriously distinguish if the objects accord with the most basic human’s virtue and morality in the course of the administration, and then the ministrations would make out the reasonable and perfect management according to TIANDAO TIANLI and the objects’nature.The illustration of the implementation of the ancient times law should be combined with different situations in super-normal times, normal times, and troubled times. For example, in the reign of the empire Wen and Jing, the reign of the empire Zhen and Guan, Kaiyuan Flourishing Age and Kang Yong Qiain Flourishing Age, The QINGLI spirit’s movement approaches in or equates in“the perfect QINGLI spirit”. The majority of governments can achieve on the natural justice by YIANDAOTIANLI and human natural feelings. They could handle the legal affair fairly, which basically results from the accurate human natural feelings of“qualified emperors and officials”. In the normal times, the QINGLI spirit’s movement approaches in or equates in“the defect QINGLI spirit”. The majority of governments was endeavored to reach on the natural justice by YIANDAOTIANLI and human natural feelings. Most of them could handle the legal affair fairly, which basically results from the accurate human natural feelings of“almost qualified emperors and officials”. In trouble times, the QINGLI spirit’s movement is mainly latent, but some individual area and the individual administrators can reach the fair legislation or judicature. The hidden QINGLI spirit could be able to be resumed after the break of the structure. This kind of QINGLI spirit’s movement could be vividly expressed by the enclosing movement of the“QINGLI curve”around the axes, which symbolizes perfect“QINGLI spirit”. Obviously, the QINGLI spirit could contain all sorts of legal spirits in ancient times and its movement decided the Chinese legal system’s long-time stable existence. It played a huge restraint role to the administrators. Thus the QINGLI spirit was the essential characteristic and the core spirit of the ancient times law.In order to further illustrate the QINGLI spirit, this article took more study on“the QINGLI curve”and further explored the administrative quality and the cultivation of the ability. The“QINGLI curve”can be predicted. The administration of the“qualified emperors and officials”is the cross points of the“QINGLI curve”and the“QINGLI axes”. The rests are the results of those“almost qualified emperors and officials”and parts of the“unqualified emperors and officials”.The decisive factor behind QINGLI spirit is the degree of the administrators’ability. The lower and medium ability would result in the defect QINGLI spirit; the deep one would result in the perfect or nearly perfect QINGLI spirit. So the cultivation of the QINGLI ability is very important. Otherwise the government would not grasp concrete human feelings and morality in the complex situations. Because there is little relationship with this article, the author only mentioned the fundamental mode of cultivating the QINGLI ability: the saints and sages enlightened, self- cultivated and practice moral culture with the tradition’s influence.In part five (Chapter eight), the author unifies essence characteristic of QINGLI spirit with the Chinese legal system’s glory and elaborates the significance of Chinese legal system which takes QINGLI spirit as its core. It is the proof of the essence characteristic of Chinese legal system and the summary of the effect of QINGLI spirit. The three meanings (to stabilize the social order, to urge the morals to do good deeds, to turns to TIANDAO TIANLI) brought by the QINGLI spirit have formed a harmonious cultural significance system. It has caused the Chinese legal system long-time stable existence: The law internal relations which conform to the QINGLI would be in the dynamical equilibrium; Outside the law, the Chinese legal system and the Chinese culture and even the world, the universe relations move toward reasonable and sensible; Looking from the ultimate significance, ancient times’law might promote the social individual morals development through the QINGLI spirit: everybody pursued good deeds, which turns over to TIANDAO TIANLI. Thus as one of the“three talents”, a real brave and perfect personality which existed side by side with the world can be realized.What needs to explain is that the research in this article is to a great extent consistent with the predecessor’s related research: on one side, the QINGLI spirit’s related research was this article foundation. The predecessor had proven there existed the QINGLI spirit in the ancient legal life and did a lot of research on it. This is the starting point of this article. This article intends to show the controlling process of QINGLI spirit from the angle of the cultural model. On the other hand, the author also has used the predecessor understanding about the Chinese legal system characteristics for reference. These characteristics or spirit could be integrated to the QINGLI spirit, so long as they were conforms to the legal truth of the ancient times. The in-depth essence manifested for the concrete characteristic or the spirit, two of which were sparkling together with the Chinese legal system. Therefore in Chapter 2 and 4, this article combed predecessor’s related research, distinguished clearly the theory origin of this article and connected with the significance system’s direction so as to come straight to the point; in the 7th Chapter, the article borrowed some research conclusions from predecessors to probe into the inner of QINGLI spirit.Through research of this article, the author attempts to prove: the QINGLI spirit not only has controlled the ancient times law basic structure and the movement pattern, moreover had the significant and profound function to the entire ancient times society. It was the glory fountainhead of the Chinese legal system. From QINGLI spirit’s historical movement, we can know the core spirit and the overall principle of Chinese legal system so as to define the Chinese legal system, which existed steadily at least two millenniums in Chinese history. The Chinese legal system Abiding by TIANDAO TIANLI and human natural feelings, Chinese legal system has earned highly respect and trust in the whole community, which requires that the administrators should treat the objects reasonably and understand sincerely the normal feelings of people. Through rewarding virtue and punishing vice, it tries hard to restore social order and the cultural order destructed by the evil people so as to urges individuals and the society to return to the harmony and TIANDAO TIANLI. Thus the great legal system (all are equal before the kindness) can be effectively carried out.However, the research about the QINGLI spirit and the QINGLI model in this article is only a one-sided view. The author would be content if it could impel the people’s understanding about the essence characteristic of the ancient times law and expound the Chinese legal system’s glory. The author would expect hopefully that the can be a stepping-stone, which could offer some valuable ideas to the further research about the ancient law and Chinese culture.

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CLC: > Political, legal > Legal > Theory of law (Law) > History of law,legal history of ideas > China
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