Revenge. Retributive punishment. Theory of retribution

Author: Huo Cunfu
Publisher:
Publishing Date: 2005-02-02
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 features 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 a sense of justice, a sense of justice already exists. For example: (1) It is right to abide by the law when humans form a society; (2) If a 'rational being' receives grace 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 relations of justice 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 "justice before human-made laws" were, in a sense, also the core of Chinese culture throughout history—this is "gratitude" and "revenge."
The book by Huo Cunfu was revised based on his doctoral dissertation. It revolves around the concept of "retribution" 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 features 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 research from a "big culture" perspective (not limited to the analysis of criminal law theory and legal provisions, but also extending to the surrounding doctrines and customs that support this theory) to conduct in-depth studies. 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, allowing for a deeper 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 world's other nations or ethnic groups, especially those of ancient Asia and Europe, as references to contrast the commonalities and specificities of China's criminal law culture in its 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 its subconscious or collective unconscious state; based on the analysis of the purpose of institutions, the meaning of doctrines, and the background of customs, it focuses on functional analysis. Additionally, it uses the connection between ancient traditional criminal law culture and contemporary China's legal culture as a central focus throughout the 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 viewpoints on many issues. It reflects the author's solid academic foundations in history and law, making it highly valuable for research on 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 agreed. Comrade Huo Cunfu is a rigorous scholar, always striving for perfection, which is why the book took so long to be published. After years of delay, it is now time to release it for broader dissemination.
On this occasion, I would also like to congratulate this series of Marginal Criminal Law Studies. The publication of this series can be seen as a special product under special circumstances in a special period, making it a truly rare achievement in criminal law theory. In 1994, during an exchange visit between deans of law schools in mainland China and the legal community in Taiwan, we learned that most faculty members in a university's law school had already obtained or were about to obtain doctorates, 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 sense of urgency transformed into inspiration. Upon returning to the university, I reported the situation to the law school leadership and relevant university leaders. Everyone resolved to launch what later became known as the "Doctorate Program," essentially requiring middle-aged and young faculty members to pursue doctorates if possible. 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 to pursue their degrees within the school. However, the only doctoral program authorized by Jilin University Law School was in criminal law. As a result, faculty members from various fields—whether in legal theory, legal history, constitutional law, economic law, civil law, or international law—had no choice but to pursue criminal law degrees. This was bound to draw criticism given China's current system, which evaluates doctoral degrees based on so-called secondary disciplines. However, we firmly believed in two things: first, that the direction of disciplinary development 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, every discipline needs the impact of "outsiders"). Because Chinese criminal law needs more macro-level theories beyond criminal law itself, concerning its own Chinese criminal law. These non-criminal law scholars, by studying criminal law issues from their own disciplinary 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, there would not have been the valuable achievements in criminal law that are meaningful to criminal legislation but fall outside the scope of criminal law scholars.
The "outsiders" of criminal law studying issues beyond criminal law can perfectly fill this gap, enriching the theoretical treasury of criminal law. A rare opportunity, an unavoidable measure, led to rare achievements. This seems to be a perfect example of the 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 features 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 a sense of justice, a sense of justice already exists. For example: (1) It is right to abide by the law when humans form a society; (2) If a 'rational being' receives grace 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 relations of justice 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 "justice before human-made laws" were, in a sense, also the core of Chinese culture throughout history—this is "gratitude" and "revenge."
The book by Huo Cunfu was revised based on his doctoral dissertation. It revolves around the concept of "retribution" 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 features 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 research from a "big culture" perspective (not limited to the analysis of criminal law theory and legal provisions, but also extending to the surrounding doctrines and customs that support this theory) to conduct in-depth studies. 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, allowing for a deeper 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 world's other nations or ethnic groups, especially those of ancient Asia and Europe, as references to contrast the commonalities and specificities of China's criminal law culture in its 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 its subconscious or collective unconscious state; based on the analysis of the purpose of institutions, the meaning of doctrines, and the background of customs, it focuses on functional analysis. Additionally, it uses the connection between ancient traditional criminal law culture and contemporary China's legal culture as a central focus throughout the 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 viewpoints on many issues. It reflects the author's solid academic foundations in history and law, making it highly valuable for research on 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 agreed. Comrade Huo Cunfu is a rigorous scholar, always striving for perfection, which is why the book took so long to be published. After years of delay, it is now time to release it for broader dissemination.
On this occasion, I would also like to congratulate this series of Marginal Criminal Law Studies. The publication of this series can be seen as a special product under special circumstances in a special period, making it a truly rare achievement in criminal law theory. In 1994, during an exchange visit between deans of law schools in mainland China and the legal community in Taiwan, we learned that most faculty members in a university's law school had already obtained or were about to obtain doctorates, 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 sense of urgency transformed into inspiration. Upon returning to the university, I reported the situation to the law school leadership and relevant university leaders. Everyone resolved to launch what later became known as the "Doctorate Program," essentially requiring middle-aged and young faculty members to pursue doctorates if possible. 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 to pursue their degrees within the school. However, the only doctoral program authorized by Jilin University Law School was in criminal law. As a result, faculty members from various fields—whether in legal theory, legal history, constitutional law, economic law, civil law, or international law—had no choice but to pursue criminal law degrees. This was bound to draw criticism given China's current system, which evaluates doctoral degrees based on so-called secondary disciplines. However, we firmly believed in two things: first, that the direction of disciplinary development 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, every discipline needs the impact of "outsiders"). Because Chinese criminal law needs more macro-level theories beyond criminal law itself, concerning its own Chinese criminal law. These non-criminal law scholars, by studying criminal law issues from their own disciplinary 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, there would not have been the valuable achievements in criminal law that are meaningful to criminal legislation but fall outside the scope of criminal law scholars.
The "outsiders" of criminal law studying issues beyond criminal law can perfectly fill this gap, enriching the theoretical treasury of criminal law. A rare opportunity, an unavoidable measure, led to rare achievements. This seems to be a perfect example of the saying: "Hitting the mark by accident."