A New History of Chinese Legal Thought

Author: Zhang Guohua
Publisher:
Publish Date: 2005-01-01
Features: For a hundred years, Peking University, renowned as one of China's top institutions of higher learning, has been closely linked with the country's educational and cultural endeavors. With its profound cultural heritage, rigorous academic traditions, open academic environment, and extensive international exchanges, it has nurtured generations of renowned scholars and professors who have made outstanding contributions in their respective fields and left a lasting impact on the history of Chinese academia. They have upheld the academic and cultural frontiers, achieved remarkable accomplishments in their fields, and authored numerous works that have profoundly influenced the history of Chinese scholarship. The "Peking University Famous Scholars and Masterpieces Series" selects academic works on humanities subjects written by distinguished scholars of Peking University, aiming to reflect the academic achievements of scholars across generations and showcase their scholarly ethos. All of this is not to console ourselves with the past but to demonstrate that our ancestors once made great contributions to the world in the realm of legal thought, and we have no reason to feel inferior today.
(II) Helps Deepen Understanding of Law
The various advanced legal thoughts in Chinese history have not only played a positive role in promoting the development of Chinese society and hold significant historical value but also offered numerous insights from different perspectives, deepening our understanding of legal issues and carrying substantial theoretical significance. This is undoubtedly beneficial for further comprehending Marxist jurisprudence, which embodies the outstanding achievements of human culture. In terms of ancient contributions, the most notable are the Pre-Qin philosophers and the enlightenment thinkers during the late Ming and early Qing dynasties. The legal thoughts of the Pre-Qin philosophers are full of brilliance. Primarily, they sought to break free from the shackles of divine authority to some extent, striving to explore legal issues from the perspective of human society itself. What is particularly valuable is that many outstanding thinkers attempted to observe various social phenomena, including law, through naive materialism, challenging both divine authority and various forms of subjective and objective idealism. This was a significant leap in epistemology, far more advanced than that of many countries in the world at the time. Precisely because of this, some Pre-Qin thinkers, with their exceptional wisdom and courage, managed to bring the origin of law down from the heavens to the mortal world, recognizing that the state and law were not inherent to humanity from the beginning but rather products of a certain stage of development. They even dared to acknowledge that law (primarily criminal law) was backed by state violence and possessed coercive power. They even reached a level where they acknowledged that the law at the time was a tool used by rulers to govern the state, maintain social order, and suppress popular resistance. Some representatives of advanced classes or strata even assumed the role of representatives of all members of society, believing that the law should reflect the "public will" and emphasize its equality and fairness. This "public law perspective" was clearly more sophisticated than viewing law as "the arbitrary rule of individuals." In a certain sense, it marked a significant step toward understanding the essence of law.
The enlightenment thinkers during the late Ming and early Qing dynasties made their greatest contribution to legal thought by touching upon the issue of "popular sovereignty" and proposing the view that "the world belongs to the people, and the ruler is merely a guest." They argued that the law should be a "public instrument of the world" and used this as a weapon to criticize the laws established by autocratic rulers since the Qin and Han dynasties as "the law of one family" or "unlawful laws," demanding that they be replaced with "the law of the world." They opposed the autocratic "rule by one" of the ruler and advocated "rule by many," where scholars and intellectuals like them had the right to participate in politics and legislation. Thinkers such as Huang Zixi, Wang Fuzhi, and Gu Yanwu, despite still wearing feudal robes and often indulging in nostalgia for the past, used the wine cups of ancient sages to vent their frustrations. Yet, their words concealed deep opposition to autocratic governance. Their "law of the world" was superior to the "public law perspective" of the Pre-Qin era precisely because it contained the seeds of democracy, linking the concept of "rule of law" with democracy rather than autocracy.
The insights of the Pre-Qin philosophers and the enlightenment thinkers during the late Ming and early Qing dynasties on legal issues were all important stages in deepening understanding. They contained both reasonable elements and numerous errors. The reasonable elements can offer us inspiration, while the errors can help us understand where predecessors went wrong and how, thus preventing us from repeating their mistakes in epistemology. This way, we can further recognize the scientific nature of Marxist jurisprudence through positive and negative comparisons, deepening our understanding of law.
(III) Helps Build a Law and Jurisprudence with Chinese Characteristics
This is a major strategic issue for reviving China. Since it is "Chinese," it is inevitably influenced to some extent by Chinese history and culture, including the impact of past legal thought. The legal thought in Chinese history, particularly that of the Confucian and Legalist schools during the Spring and Autumn and Warring States periods, has had a profound influence on later generations. It not only directly guided the formation of feudal orthodox legal thought after the Qin and Han dynasties but also became a major part of it. Through feudal orthodox legal thought, it further influenced modern and even contemporary times. This raises the question: How should we approach this historical legacy? Should we completely deny or affirm it, or critically inherit and adapt it for modern use? The correct attitude, of course, is the latter. The phrase "making the past serve the present" is clearly appropriate, as learning history cannot be for history's sake or for the past's sake. On the other hand, to "make the past serve the present," we cannot resort to opportunism or arbitrarily distort history for our own purposes. Such an approach can only lead to erroneous conclusions that defy history, a tactic often employed by decadent forces to achieve their reactionary goals. Today, when studying the history of Chinese legal thought, we must proceed from historical facts, study its development patterns objectively, summarize its lessons, and take the essence while discarding the dross to serve the construction of law and jurisprudence with Chinese characteristics.
It should be noted that both the essence and dross of Chinese legal thought in history have influenced us. Regarding the dross, we must eliminate and prevent it; regarding the essence, we should transform and absorb it to develop the fine traditions of our nation. Among the dross in Chinese history, the most harmful is the arbitrary rule and disregard for the law, stemming from the long prevalence of feudal autocracy and patriarchal hierarchy. We must not take this lightly but must further criticize it in thought and strengthen preventive measures in institutions. For example, the belief in male superiority and the preference for sons over daughters is deeply rooted. The practice of infanticide (especially of female infants) was severe even in the Pre-Qin era. Han Fei, the synthesizer of Pre-Qin Legalist thought, used the example of "celebrating the birth of sons and killing daughters" to argue for his "profit-seeking and harm-avoiding" theory of human nature. Today, to eradicate such practices, we must not only strengthen education but also use legal means to impose sanctions. Regarding the dross in Chinese legal thought, we must take corresponding measures in building modern jurisprudence and the legal system to address the problem. This will inevitably make our efforts in building law and jurisprudence distinct from those of countries with little or no such historical baggage.
It is self-evident that the historical legacy of Chinese legal thought is not composed solely of dross but also contains a wealth of essence that can be referenced and borrowed. Taking Confucian legal thought as an example, it emphasized that rulers must consider public sentiment when enacting laws and believed that maintaining social order could not rely solely on law and its coercive measures but should also ensure that people could maintain a minimum standard of living, avoiding hunger and cold, and then strengthen moral education on this foundation. Their ideas, though fundamentally different from today's approach of comprehensive governance and with entirely different starting points, still share a historical connection as methods for maintaining social order, consciously or unconsciously influencing us. Moreover, Confucianism did not deny the role of criminal law or advocate leniency in punishment. Their basic view was that the severity of punishment should vary with changing circumstances and needs. Such cases are far from limited to Confucianism or this specific idea. If we can master some knowledge of the history of Chinese legal thought, we can critically inherit and promote Chinese culture, allowing it to serve as an outstanding achievement embedded in our jurisprudence and legal system. Therefore, we believe that studying the history of Chinese legal thought, from both positive and negative perspectives, helps us build law and jurisprudence with Chinese characteristics.
As mentioned earlier, the content of the history of Chinese legal thought is so rich that writing a textbook or monograph by listing figures in chronological order would be overly detailed and repetitive, making it cumbersome for students and legal workers. Moreover, such an approach would make it difficult to discern a coherent historical development pattern, and many figures' thoughts would overlap significantly. To address this deficiency, we advocate a comprehensive approach, extracting the most representative and theoretically valuable aspects of Chinese legal thought before the May Fourth Movement and presenting them in chronological order as numerous thematic lectures. These lectures can stand alone while forming an integrated whole, offering flexibility in organization.