"Han criminal annals" reading notes

Author: Ban Gu (in Chinese)

Reading time: 2012 October

   Recently read the "Han" criminal law of the front half part, this paper has been reading about your ideas. "Han criminal annals" is Chinese feudal society first describes the development history of criminal law system in the monograph. Author Ban Gu to "supplementing" point of view, Xia Shang Zhou legal system and reform the merits. "Han Zhi" criminal law first half part of the Xia Shang Zhou, spring and autumn and the Warring States and Qin law reform are expounded, did not elaborate the author's own view, but some references from authors when, still can see its rites light punishment, despise the legal thinking.

   The article two of Chinese China ancient criminal law have reasons were explained, "love to respect and unbeaten, Germany must be well stand for a long time, so the system of rites to worship, as punishment for power", "the upper part of the body to make philanthropy Zoran first virtue, they said," and from "sage both the bow wise, will pass the heart of heaven and earth, ritual for teaching, a penalty legislation, motion edge people, but also to sky". As you can see, the rulers have played an important role in the process of law and etiquette. After three to six with the soldiers punishment regardless of the viewpoint, elaborated the development process of the spring and autumn and Warring States to the Western Han Dynasty criminal law, because of the war as for "criminal", so the author said that the military is actually described the development status of the criminal law, but the author uphold righteousness (penalty) for the military, civil and military (rites and the rule of law with the rule of law), "treat the Fu Yi soldiers teach courtesy call also", "the word to Ren Yi Sui people, matchless also". And the poor Wuji fraud, abuse of the criminal law is the worst. The author puts forward his own view of "supplementing" in the seventh paragraph, "Wen De, the emperor for themselves, the German auxiliary; also, the husband the participants is deep, Wu of the clothes in the giver; de Bo, is the system wide power". After a few major combined with "criminal Xinbang light Dian, punishment Pingbang with standard, disorderly state with severe punishment" point of view, cite some examples to illustrate the previous negative role of legal system in administration. The above is my current reading part of the main content, here to talk about my feelings.

   "Han" author Ban Gu lived in the Eastern Han Dynasty, the Confucianism has been achieved in the dominant position in ideology. Dong Zhongshu of the Western Han Dynasty "deposed 100, only Confucianism" of the thought of managing state affairs have been canonized Emperor Wudi of the Western Han Dynasty, as the mainstream of the ruling thought, and as the orthodox ideas of ancient Chinese feudal society. Ban Gu as the Eastern Han Dynasty scholars, nature worship confucianism. It should be noted that, after the Han Confucianism is not the spring and autumn and Warring States period Confucius Mencius just believed in Confucianism, its fundamental purpose is to meet the needs of the ruling class, taking Confucianism as the basis, integration of the school, Taoism, Mohism legalism is a "big miscellaneous sauce" Ideological system. Especially the fusion of legalist thought, that the Han scholars also see the legalist thought to be able to play in the maintenance of a unified multi-ethnic country role. At the same time, the writer also can be seen, he advocated "supplementing" point of view, the "punishment" and "courtesy" status has a clear division, stressed that "the order", adhere to the "use of the first, the inverse words" at the time, the law is only regarded as auxiliary ritual tools. At the same time, I thought of the Han Dynasty is an important lawsuit system -- and faults, namely in the case when the basis of Confucian classics, spring and Autumn Annals of ruling, in a trial to consider the actor's inner motivation, "Zhi Shan and contrary to the law of free, evil and to the law to punish". Visible, the law at the time of the judicial background just etiquette "helper", a guidance on the implementation of the law system, only in the system under the guidance of the law, in order to better play its role. At the same time, the author is in fact a soldier punishment regardless of the point of view, the military system as a "criminal law", that the "criminal", "oibara hoplite, in criminal with saws, thin punishment by whipping", tells the story of the ancient Xia, Shang and Zhou Yibing, set the world, to the teaching people and the preparation of the army, Li Wu country history.

   However, the author advocates "supplementing" thinking at the same time, not to deal with the legal good position and the lack of a correct understanding of the legalist thought, the author of this aspect, I beg to differ. First of all, the author divided the way soldiers punishment not biased. External forces are considered part of a country's "foreign" category, and the law of a country is "home". The law about the legal "territorial force" divided, believe in Qin was a legal nor on Qi people binding. Therefore the law is basically a country's "internal affairs" problem, only have universal binding force on the under the jurisdiction of the people, can not be confused with the external forces. The external forces as the only one sentence in mind to discuss its views, the quoted example is also involved in military use examples, but no more references to "internal affairs" example, convincing the argument on discount. Secondly, the author does not have the very good understanding of the essence of the legalists. The Legalists stressed sovereign laws govern the country well and strictly enforced, stressed sovereign countries should combine the method, technique, potential three. Author Wu Qi, Shang Yang as an example, the legalist scholars as "cunning man", only to see they destroy the "ritual", "change your cheat snobbish, applying mixed his country to violence, officials have, upper and lower centrifugal, political and bad, so variable and fraud also". But did not see the "governance" in governing the country, maintaining the play the role of sovereign authority. For the "rule of law", the author also does not have the very good view of its role in the tertiary and Zi Chan in the dialogue, also see "undermine the rule of law" in the etiquette, but not to the "rule of law" governance in law are analyzed, and cited the saints Confucius words against Zichan "Xingshu" behavior. In addition, the more biased, the author mistakenly thought of Legalists as the root cause of the Qin Dynasty II to death. In the eleventh paragraph, the Qin Shang Yang's reform to the Qin Dynasty punishment in managing state affairs are briefly described, reflects the Qin legalist thought caused the view. I think, should distinguish different legalist thought in Qin era and Qin Shihuang Tongyiliuguo Qin Dynasty after the establishment of the play. In the Warring States period, the Qin and appointment of Shang Yang reform, "burnt a Ming act", incentives Ligeng war, uphold the authority supreme monarch, Qin rapidly became a nation, after the unification of China laid the foundation. Can say, at this stage, the idea is to play a positive role, this point has been the academic consensus. However, the emperor after the reunification of the country, although on the surface or follow the legalist thought, but in fact has deviated from the legalist thought the purpose, more is a kind of extreme nationalism, also not according to the change of social status after the reunification of the country of its legal modifications, contrary to earlier thinkers advocated Legalists "etiquette and decided to for the CIS, it should be" thought. At the same time, the Qin period have imposed severe law has deviated from the Legalists advocated "abolish punishment with punishment" spirit and severe penalty doctrine requirements, into a fully naked state terrorism. Therefore, the Qin Dynasty was overthrown due to severe law not enjoy popular support and not false, however, considered the legalist thought caused the demise of the Qin Dynasty, this view is biased.

   Of course, as the official compiling history of Han, must make the brand of the times, reflect the will of the ruler, is to maintain the ruling class mountain strong. Therefore, must the legitimacy of the power of their own to find a point, therefore, in the field of thought of respecting Confucian legalist, criticism, attributed to the Qin legalist thought wrong as it is not hard to understand. After all, history is always made by a person to write.