Revenge · Retributive Punishment · Theory of Reprisal: A Cultural Interpretation of Chinese Legal Concepts

Author: Huo Cunfu
Publisher:
Publishing Date: 2005-01-01
Features: This book focuses on the contemporary legal culture of China, analyzing the main characteristics of the traditional criminal law culture centered around the concept of "" (retribution). The full text examines the historical facts and ideas of revenge in China, the factors and manifestations of retaliatory punishment in law, and the content and characteristics of retribution theory, aiming to interpret and evaluate these cultural phenomena from a cultural perspective. Montesquieu wrote in The Spirit of the Laws: "Before human-made laws establish just relationships, just relationships already exist. For example: (1) It is right to obey the law when humans form a society; (2) if a 'rational being' receives kindness from another, it should feel gratitude; (3) if a 'rational being' creates another, the created being should maintain its original dependence; (4) if a 'rational being' harms another, it should suffer the same harm, and so on. These just relationships existed before human-made laws." The third refers to belief, reverence, and dependence on God; the second refers to gratitude; and the fourth refers to retaliation, particularly highlighting homoeopathic revenge. Montesquieu believed that the second and fourth points of the "just relationships" before human-made laws were, in a sense, also the core of Chinese culture throughout history—this is "gratitude" and "revenge." Huo Cunfu's book, revised from his doctoral dissertation, revolves around the concept of "" to explore the three main cultural elements of traditional Chinese criminal law culture—revenge, retaliatory punishment, and retribution theory. It includes the facts and ideas of revenge (Part 1: Revenge), the factors and manifestations of retaliatory punishment in law (Part 2: Retaliatory Punishment), and the content and characteristics of retribution theory (Part 3: Retribution Theory), covering the three main forms of traditional Chinese criminal law culture—customary culture, institutional culture, and conceptual culture. The book employs cultural methods, emphasizing a "big culture" perspective (not limited to the analysis of criminal law theory and legal statutes, but also extending to peripheral doctrines and customs that support this theory) for specialized research. It reveals the kinship and complementary functions between retaliatory punishment as a criminal law theory and the legal cultural phenomena of revenge and retribution theory, deepening the understanding of the issue. At the same time, it analyzes the influence and constraints of the legal cultural phenomenon of revenge and the legal cultural concept of retaliatory punishment on the content and implementation of relevant legal systems. The book uses the customs, laws, and religious doctrines of other ethnic groups or countries in the world, especially ancient ethnic groups or countries in Asia and Europe, as references to highlight the commonalities and specificities of Chinese criminal law culture in this field during historical development. In the process of historical description and logical deduction, it emphasizes legal analysis of rules; based on the analysis of legal consciousness, it also reveals the subconscious or collective unconscious state; based on the analysis of the purpose of institutions, the meaning of doctrines, and the background of customs, it emphasizes functional analysis; and it uses the connection between ancient traditional criminal law culture and the contemporary legal culture of China as the focus that runs through the entire book. Using historical, empirical, and comparative methods, the book conducts a detailed and profound analysis of the Chinese attitude toward the repayment of wrongdoing, proposing original views on many issues and reflecting the author's solid foundation in history and law. It holds significant reference value for the study of the history of Chinese criminal punishment and the Chinese view of criminal law. Such research is rare in China. Before publication, the author asked me to write the preface. As his supervisor, I happily accepted. Comrade Huo Cunfu is rigorous in his scholarship and always strives for perfection, which is why the book took so long to be published. After years of delay, it is finally ready to be released and widely disseminated. On this occasion, I would also like to congratulate this series of Marginal Criminal Law Series. The publication of this series can be considered a special product under special circumstances in a special period, and it is indeed a rare theoretical achievement in criminal law. In 1994, when a group of deans from mainland Chinese law schools visited Taiwan for academic exchange, we learned that most faculty members in a university law school had already obtained or were about to obtain doctoral degrees, while our own law school lagged far behind. As the Dean of the Law School at Jilin University at the time, I felt immense pressure and urgency. This motivation eventually turned into inspiration. Upon returning to campus, I reported the situation to the law school leadership and the university's relevant leaders, and everyone resolved to launch what later became known as the "Doctoralization Project," which essentially meant that all middle-aged and young faculty members who met the conditions were required to pursue doctoral degrees. This initiative was widely welcomed and strongly supported by the university, the law school, and the faculty. Given the situation of talent drain at Jilin University at the time, we proposed that faculty members should try their best not to pursue their degrees outside the school. However, the only doctoral program authorized by the Jilin University Law School at the time was in criminal law. As a result, faculty members from all fields—whether they originally worked in legal theory, legal history, constitutional law, economic law, civil law, or international law—had no choice but to pursue doctoral degrees in criminal law. This was not without criticism, given China's current system of evaluating doctoral degrees based on so-called secondary disciplines. However, at the time, we firmly believed: first, that the direction of discipline construction was correct; and second, that "disciplines" should not and could not monopolize "knowledge." In my view, even today, Chinese criminal law needs the impact of "outsiders" (in fact, any discipline needs the impact of "outsiders"). Because Chinese criminal law needs more macro-level theories about itself beyond criminal law. These non-criminal law scholars, studying criminal law issues from their own professional perspectives, can gain new knowledge with "hybrid" advantages through the "intersection" of disciplinary theories. Today, it turns out that this is exactly the case. Without this special move, we would not have today's valuable achievements in criminal law that fall outside the scope of criminal law scholars but are meaningful to criminal legislation. The "outsiders" of criminal law studying issues beyond criminal law can perfectly compensate for the missing perspective, enriching the theoretical treasury of criminal law. A rare opportunity, an unavoidable approach, led to rare achievements. This seems to be a saying: "Hitting the mark by accident." The book focuses on the contemporary legal culture of China, analyzing the main characteristics of the traditional criminal law culture centered around the concept of "" (retribution). The full text examines the historical facts and ideas of revenge in China, the factors and manifestations of retaliatory punishment in law, and the content and characteristics of retribution theory, aiming to interpret and evaluate these cultural phenomena from a cultural perspective. Montesquieu wrote in The Spirit of the Laws: "Before human-made laws establish just relationships, just relationships already exist. For example: (1) It is right to obey the law when humans form a society; (2) if a 'rational being' receives kindness from another, it should feel gratitude; (3) if a 'rational being' creates another, the created being should maintain its original dependence; (4) if a 'rational being' harms another, it should suffer the same harm, and so on. These just relationships existed before human-made laws." The third refers to belief, reverence, and dependence on God; the second refers to gratitude; and the fourth refers to retaliation, particularly highlighting homoeopathic revenge. Montesquieu believed that the second and fourth points of the "just relationships" before human-made laws were, in a sense, also the core of Chinese culture throughout history—this is "gratitude" and "revenge." Huo Cunfu's book, revised from his doctoral dissertation, revolves around the concept of "" to explore the three main cultural elements of traditional Chinese criminal law culture—revenge, retaliatory punishment, and retribution theory. It includes the facts and ideas of revenge (Part 1: Revenge), the factors and manifestations of retaliatory punishment in law (Part 2: Retaliatory Punishment), and the content and characteristics of retribution theory (Part 3: Retribution Theory), covering the three main forms of traditional Chinese criminal law culture—customary culture, institutional culture, and conceptual culture. The book employs cultural methods, emphasizing a "big culture" perspective (not limited to the analysis of criminal law theory and legal statutes, but also extending to peripheral doctrines and customs that support this theory) for specialized research. It reveals the kinship and complementary functions between retaliatory punishment as a criminal law theory and the legal cultural phenomena of revenge and retribution theory, deepening the understanding of the issue. At the same time, it analyzes the influence and constraints of the legal cultural phenomenon of revenge and the legal cultural concept of retaliatory punishment on the content and implementation of relevant legal systems. The book uses the customs, laws, and religious doctrines of other ethnic groups or countries in the world, especially ancient ethnic groups or countries in Asia and Europe, as references to highlight the commonalities and specificities of Chinese criminal law culture in this field during historical development. In the process of historical description and logical deduction, it emphasizes legal analysis of rules; based on the analysis of legal consciousness, it also reveals the subconscious or collective unconscious state; based on the analysis of the purpose of institutions, the meaning of doctrines, and the background of customs, it emphasizes functional analysis; and it uses the connection between ancient traditional criminal law culture and the contemporary legal culture of China as the focus that runs through the entire book. Using historical, empirical, and comparative methods, the book conducts a detailed and profound analysis of the Chinese attitude toward the repayment of wrongdoing, proposing original views on many issues and reflecting the author's solid foundation in history and law. It holds significant reference value for the study of the history of Chinese criminal punishment and the Chinese view of criminal law. Such research is rare in China. Before publication, the author asked me to write the preface. As his supervisor, I happily accepted. Comrade Huo Cunfu is rigorous in his scholarship and always strives for perfection, which is why the book took so long to be published. After years of delay, it is finally ready to be released and widely disseminated. On this occasion, I would also like to congratulate this series of Marginal Criminal Law Series. The publication of this series can be considered a special product under special circumstances in a special period, and it is indeed a rare theoretical achievement in criminal law.