Series of Edge Criminal Law — Ethical Criminal Law and Its End

Author: Ren Xirong
Publisher:
Publish Date: 2005-01-01
Features: This book argues the relationship between law and morality, discussing that the "Legalism of Reason" emerged in the unique historical context of ancient China and was closely linked to Confucian moral views, representing one of the early fundamental forms of "moral law" worldwide. It elaborates on the flaws of the "Legalism of Reason," where moral standards replaced legal standards, and concludes that the operation of contemporary Chinese criminal law must consider mutual support with Chinese social morality. The criminal law culture of ancient China has a long history and is rich in content, exerting profound or superficial influences on contemporary Chinese criminal law in terms of spirit, institutions, and judicial techniques. Therefore, theoretical research in criminal law, in the sense of comparison and reference, should not only focus on the mature theories and practices of the West but also turn its attention to its own traditions. As the author of this book points out: "It is difficult to find the shadow of traditional criminal law directly in the socialist criminal law of New China, but the new criminal law is not an invention out of thin air. Although it is an intentional reaction against the past, it is also a re-creation of the existing institutions and ideas."
Historical analysis of legal systems is typically based on the following three purposes: First, to excavate historical materials and restore the original historical context; second, to explore the nature, development, and social background of the system, revealing the historical laws of its operation; third, to reflect on the internal logic of the system's operation, providing references for the construction of real-world systems through an analysis of the main contradictions and their balancing mechanisms. These three aspects are closely interconnected and indispensable, yet they roughly represent a theoretical dialectical process that moves from the specific to the abstract and then to a higher level of specificity, from the micro to the macro. The first aspect can be said to primarily belong to the traditional field of historiography, while the latter two require the introduction of research methods from disciplines such as anthropology, sociology, and economics in a methodological sense, thereby promoting the development of interdisciplinary social sciences. For the specific discipline of law, this means expanding the scope of research. The research in this book is primarily based on the second and third purposes, and concerning the topic, it contains high academic value and profound practical significance.
In this book, the author raises some questions that are also of great interest to me. First, in what sense should we understand the "fact" that ancient Chinese law was an "ethical law"? Is the blurring of the boundaries between law and morality, from a global perspective, merely a characteristic of ancient Chinese law? Based on the analysis of the universal connection between law and morality, the author argues that "moral law" was the fundamental form of early law in countries worldwide, opposing the simplistic conclusion that ancient Chinese law should be defined as ethical law merely because of its close connection with Confucian ethics. Instead, it is necessary to analyze the specificity of this connection to grasp the ethical character of ancient Chinese law. At the same time, the author also believes that it is entirely possible to conclude that "ancient Chinese criminal law was an ethical criminal law" from the conclusion that "ancient Chinese law was an ethical law," because what is referred to as "ancient Chinese law" is almost entirely criminal law. However, the author also argues that this conclusion should not be easily made, and the analysis of ethical criminal law must be based on the entire process of legislation, enforcement, and compliance, otherwise, the conclusion will be incomplete.
Second, ethical criminal law has long maintained the stability and prosperity of ancient Chinese society. How did it coordinate its internal and external contradictions to maintain its long-term vitality? The answer to this question will involve the rationality of ancient criminal law and the intrinsic reasons for its decline in the modern era. The author's reflections and answers to this part are the essence of the book. Unlike the common approach of analyzing the rationality of ethical law from social and cultural perspectives, the author starts from the objective contradiction between law and morality as social norms, further confirming the ethical character of ancient criminal law by comparing the different ways in which ancient and modern societies resolved these contradictions. As the author states: "The conflict between law and morality is objective and eternal. Unlike modern criminal law, which establishes the independence of criminal law relative to morality through the principles of legality and proportionality, and objectively views their conflict, ethical criminal law resolves their conflict by establishing the dependent status of criminal law on morality and dissolving the boundaries between the two, thereby further clarifying the ethical attributes of criminal law."
The author analyzes the internal conflicts and resolution mechanisms of ethical criminal law through the three pairs of fundamental concepts: "crime and evil," "responsibility and emotion," and "punishment and virtue." Additionally, through the coexistence of contradictions such as legality, proportionality, the theory of judging by intention, and unequal punishment for the same crime, the author analyzes the external conflicts and resolution mechanisms of ethical criminal law.
Finally, in the context of modernization, how did the inherent contradictions of ethical criminal law intensify, leading to the collapse of the entire ancient criminal law system? In the author's view, the contradiction between law and morality cannot be fundamentally resolved; what can be achieved is only a moderate balance. From this perspective, ancient criminal law had already reached an extremely refined level, but because it attempted to dissolve the contradiction between the two, it was destined to meet a tragic end.
Last, from the development and decline of ethical criminal law, how should we view the ethnic nature of criminal law—a grand topic? For this book, this question is clearly too "grand," and the author's research is merely a starting point. Through empirical analysis and logical deduction, the author explains to us that the end of ethical criminal law is only a institutional end, and the tradition of ethical criminal law will continue to endure for a long time.