Revenge · Retributive Punishment · Theory of Reprisal (A Cultural Explanation 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 retributive 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 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 'sentient being' receives kindness from another, it should feel gratitude; (3) If a 'sentient being' creates another, the created being should maintain its original dependence; (4) If a 'sentient being' harms another, it should suffer the same harm, and so on. These relationships 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 the "relationships 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, retributive punishment, and retribution theory—including the facts and ideas of revenge (Part 1: Revenge), the factors and manifestations of retributive punishment in law (Part 2: Retributive 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 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, revealing the familial relationship and complementary functions between retributive punishment as a criminal law theory and the two legal cultural phenomena of revenge and retribution theory, thereby delving deeper into 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 retributive 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 those of ancient ethnic groups or countries in Eurasia, as references to highlight the commonalities and specificities of this field of Chinese criminal law culture in historical development. In the process of historical description and logical deduction, it focuses on 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. The book employs historical, empirical, and comparative methods to conduct a detailed and profound analysis of the Chinese attitude toward the repayment of wrongdoing, proposing original viewpoints on many issues, reflecting the author's solid foundation in history and law, and offering significant reference value for the study of the history of Chinese criminal punishment and Chinese criminal law perspectives. 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 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 now time to release it for wider 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, when a group of deans from mainland Chinese law schools visited Taiwan for academic exchange, we learned that most faculty members in the law schools of a certain university 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 campus, I reported the situation to the law school leadership and university leaders, and everyone resolved to launch what later became known as the "Doctorate Program," essentially requiring middle-aged and young faculty members who met the conditions to pursue doctorates. 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 the Jilin University Law School at the time was in criminal law. As a result, faculty members from all fields—whether originally engaged in legal theory, legal history, constitutional law, economic law, civil law, or international law—had no choice but to pursue degrees in criminal law. This was bound to attract criticism given China's current system, which evaluates 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 some "outsiders" to challenge it (in reality, any discipline needs the impact of "outsiders"). Because Chinese criminal law needs more macro-level theories about itself beyond criminal law. These scholars from outside criminal law, 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, we would not have today's valuable achievements in criminal law that fall outside the scope of criminal law scholars but hold significance for criminal legislation. The "outsiders" of criminal law studying issues beyond criminal law can perfectly fill this gap and enrich the treasure trove of criminal law theory. A rare opportunity, an unavoidable approach, led to rare achievements. This seems to be a perfect example of the saying: "A miss is as good as a mile." 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 retributive 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 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 'sentient being' receives kindness from another, it should feel gratitude; (3) If a 'sentient being' creates another, the created being should maintain its original dependence; (4) If a 'sentient being' harms another, it should suffer the same harm, and so on. These relationships 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 the "relationships 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, retributive punishment, and retribution theory—including the facts and ideas of revenge (Part 1: Revenge), the factors and manifestations of retributive punishment in law (Part 2: Retributive 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 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, revealing the familial relationship and complementary functions between retributive punishment as a criminal law theory and the two legal cultural phenomena of revenge and retribution theory, thereby delving deeper into 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 retributive 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 those of ancient ethnic groups or countries in Eurasia, as references to highlight the commonalities and specificities of this field of Chinese criminal law culture in historical development. In the process of historical description and logical deduction, it focuses on 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. The book employs historical, empirical, and comparative methods to conduct a detailed and profound analysis of the Chinese attitude toward the repayment of wrongdoing, proposing original viewpoints on many issues, reflecting the author's solid foundation in history and law, and offering significant reference value for the study of the history of Chinese criminal punishment and Chinese criminal law perspectives. 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 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 now time to release it for wider 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.