The ancient Chinese legal system is a complete and mature legal tradition and legal system based on the philosophy of Heaven and the theory of Yin and Yang, the mainstream of Confucianism as the theoretical basis, the mode of agricultural production and consanguineous families as the social soil, and the "three cardinal guides and five permanents" as the core. The legalization of law is actually the legalization of Confucianism. When making laws, take "ceremony" as the legislative basis and guiding ideology; Take the basic principle of "courtesy" as the basic standard of conviction and sentencing; And annotate the law with "ceremony".
The ancient Chinese legal system emphasized the interaction of law, punishment and moral education. "Morality is the foundation of politics and religion, and punishment is the use of politics and religion", which is a typical summary of the relationship between moral education and legal punishment in ancient China. The foundation of Confucian political theory is the theory of good human nature. Confucius once said: "he is also filial, but people who are good at making mistakes are rare;" There are no people who are not good at making mistakes and are good at making trouble. "Therefore, as long as we are properly educated with courtesy and righteousness, it is not difficult to realize the ideal society of' everyone can be Yao and Shun' and' the world is public'. The role of legal punishment is relatively limited. The so-called "law can be punished without benevolence, and law can be killed without base", so "punishment cannot be abolished" and "it is not yet possible to prosper". Therefore, to govern the country, we should "guide by courtesy, punish by punishment" and "punish by virtue". "It means that the main means and fundamental purpose of governing the country and the people should be to carry forward the rule of virtue, publicity and education, rather than putting the cart before the horse advocated by Legalists. At the same time, the formulation of laws and the implementation of penalties should also reflect and adapt to the requirements of ethics, so that laws can become the best carrier of moral kindness and ethics. Therefore, Confucianism not only advocates "benevolent government", but also emphasizes "benevolence and forgiveness", careful trial and "kindness and punishment" in law enforcement. Too much emphasis on the role of moral education will inevitably lead to the proliferation of pan-moralism in practice and make law a vassal and tool of politics and morality, which is its negative side. However, this theory notes that from a broader perspective, it is undoubtedly worth learning to treat and deal with social problems in various ways.
Pay attention to family ethics and maintain family harmony and affection. Our ancestors believed that family life is a continuous whole, personal life is a continuation of parents' life and children's life is a continuation of personal life. Therefore, we call kinship "kinship of flesh and blood" and brotherhood "brotherhood". In this case, when we encounter problems related to family ethics, what we consider and pay attention to is very different from that of ordinary people. The traditional legal system is naturally deeply branded with this mark, and the ethical feature of "severe punishment from morality" has become the most distinctive feature of China's traditional legal culture. In the laws after Confucianism, the ethical clauses dealing with murder, infringement, rape, theft, marriage, unfilial farmland and houses and their descendants, and violation of fatwa between relatives and family members account for a considerable proportion. The principle of dealing with disputes between these relatives has always been the concept of respect and closeness advocated by Confucianism, which is completely different from ordinary people. These ethical rules are full of strong colors such as respect and inferiority, kinship, seniority and so on, including obvious inequalities such as father and son, husband and wife, respect and inferiority, but also include the obligation to maintain family harmony, emphasizing mutual assistance among family members, especially respect for fathers and ancestors and raising children and grandchildren. These are all important manifestations of the traditional virtues of the Chinese nation.
Pay attention to mediation and mediation, and emphasize litigation and dispute resolution. "Harmony" is a long and precious ideological tradition and value pursuit in China society, which has a far-reaching impact on judicial proceedings and dispute resolution in traditional society. Confucius emphasized "don't do to others what you don't want others to do to you" and directly put forward the ideal of "no litigation", that is, everyone should try to restrain their desires, be patient and considerate with each other, and live the life they should live according to their own identity, so there will be no litigation; Even if there is a dispute, you can compromise with each other and live in harmony. In the long traditional society, "no litigation" is regarded as an ultimate ideal and goal by the literati class, and gradually a set of special systems about "low litigation", "interest litigation", mediation and mediation have been designed and formed. The negative side of these systems is that they overemphasize "interest litigation" and ignore the rights and interests of the parties, but they are undoubtedly very important for alleviating social contradictions, reducing social costs, eliminating excessive litigation and achieving overall social harmony.
"Combination of etiquette and law" is the essence and feature of traditional legal culture in China. During the Warring States period, "rule by courtesy" and "rule by law" began to confront each other. One of the results of the confrontation was that "rule by courtesy" came back and "rule by law" retreated. On the other hand, "rule by courtesy" and "rule by law" are integrated under the new historical conditions. The essence of "rule by etiquette and law" is the result of the combination of natural economy, patriarchal clan structure and monarchy centralization, and the corresponding legal culture is also compromised into a "mixed" legal culture, which is manifested in the "mixed law" style of combining "customary law" and "written law" in law. During the two thousand years from the Western Han Dynasty to the late Qing Dynasty, "with the formation and development of the integration of feudal autocracy in Qin and Han Dynasties, Confucianism and law merged, forming China's orthodox legal concept, which gradually accumulated in the national psychology", so the confrontation between etiquette and law contributed to the "unification of etiquette and law", the "unified" position of Confucian orthodox legal thought in feudal society, and this "internal and external cultivation" legal culture gradually formed. Confucian scholars in the Western Han Dynasty initiated "judging cases through prison", putting Confucian classics above the law and putting them into practice in judicial activities, which sounded the horn of Confucianism of feudal law. During the Eastern Han Dynasty, Confucian officials set off an upsurge of "annotation of laws by classics", which almost branded the legal texts of the legalist system with Confucianism. Then, the legislation of the Tang law bears the fruit of "one size fits all" and "the confluence of etiquette and law" is completed. "In this way, the laws of the Chinese Empire became a mixture of legalists and Confucianists". The relationship between ceremony and law is "ceremony-based, law for use;" "Rites are the mainstay, the law is the obedience, the ceremony is the first, and the law is the obedience; Incorporate the ceremony into the law, and the ceremony is obvious in the law "; In terms of legal norms, it is a "mixed law" country in which all laws are combined into one, civil punishment is not divided, and customary law and statutory law develop simultaneously.
In China's traditional legal culture, law is based on moral education, and morality is the main means of social adjustment, while law is only the secondary and auxiliary means of morality. Punishment is a tool, while moral education is the purpose; The application of penalty must be based on moral education, and the purpose of penalty implementation is to meet the requirements of moral education. Morality has almost become the embodiment of law. Moral norms are so widely involved in the legal world that it is difficult to draw a clear line between morality and law. Not only do moral requirements conform to the spirit of the law, but acts that violate the law are immoral, and acts that violate morality are illegal. In the relationship between moral education and punishment, moral education is higher than punishment, that is, "moral education is the subject of punishment" and "moral education is permanent and punishment is Tamenosuke's". Traditional legal culture advocates "ruling the country by virtue". "Rule by virtue" has two meanings: first, it advocates benevolent government and opposes tyranny; The second is to attach importance to moral education and advocate "transforming people with morality". Compared with punishment, morality is based on morality and supplemented by punishment, which is the so-called "morality dominates punishment". The so-called "music is not popular, punishment is not correct, that is to say, punishment must be based on music, otherwise it is not appropriate. Judging from the use effect, Confucianism believes that punishment can only punish crimes, while moral education can "nip in the bud" and nip in the bud. In the order of use, Confucianism advocates teaching first and then punishing, and opposes punishing without teaching. This thought was advocated by Confucianism, but it was not adopted by the rulers during the Spring and Autumn Period and the Warring States Period. Later, due to the fact that the Qin Dynasty didn't give benevolence and righteousness and didn't give full-time punishment, two dead's theory of "Morality as the main punishment" gradually attracted the attention of feudal rulers. After Jia Yi, Dong Zhongshu and others' processing and transformation, "morality first, punishment second" was regarded as orthodox, which became the basic method to maintain feudal rule and had a far-reaching impact on the development of China's legal culture. Under the guidance of the thought of "morality dominates punishment", the tension of the development of law itself is extremely weak, and law becomes a vassal of ethical system and administrative orders. There is no clear boundary between legal norms, moral norms and administrative orders, and the law lacks independence and autonomy, thus losing its unique personality and function as a law.