| “Principle”,“Hardline” and “Conciliation” are the three legal thoughts of governing the country put forward in the Confucian classic—Shangshu· Hongfan,which are called "San De" from ancient times.In view of three political and historical environments — normal governance,turbulent times,abnormal governance,the "San De" theory also provides three corresponding governance policies of "establishing principles to discipline people in times of peace,taking hard line approach during turbulent times,and adopting conciliatory means in relatively stable society".Under the premise of that "only the emperor will benefit the people,only the emperor can punish the people,and only the emperor can enjoy delicious food”,it remains to be find out whether the legal thought of "San De" has internal rationality and whether the governance policy provided by this theory can function well.Therefore,from the perspective of historical law,the author has tried to clarify the document source of the text of"Sand De",and then to explore the thought of "San De" in Chinese ancient legal history,so as to comprehensively sort out the whole process of its transmission,development and practice.In addition to the "introduction" and "conclusion",this dissertation is divided into four chapters:The first chapter is a textual research on the "San De" in Shangshu Hongfan.The book of Shangshu is difficult to comprehend,which remains so in ancient and modern times.In ancient times,Han Changlidescribed it as "abstruse",while Mr.Gu Jiegang in modern timeshas compared it to "climbing Mount Everest".Although the research of "San De" is done only within the realm of the text Hongfan,the author has to recognize the ancient words,discriminate concepts,and consult historical records in order to make certain conclusion.To be specific,the first aim is to decide the authenticity of Hongfan.At the beginning of the Song Dynasty,scholars began to question whether this text,Hongfan,really existed and the answer was finally found by the Qing scholars who adhered to simple learning and were good at textual research,and Hongfan was recognized as a true ancient text.Then there is the controversy over the time when Hongfan was completed.Modern scholars have conducted special research on this frontier issue,and gradually formed the "Seven Theories" from Xia,Shang to Qin and Han Dynasties.After the 1980 s,with the continuous supplement and demonstration of unearthed documents and materials,the "Shang and Zhou Theory"(one of the seven)has once again become the mainstream theory in academic circles.On the premise of the above two important research conclusions,the author synthesizes the exegesis works of Shangshu in previous dynasties,teases out a brief annotation history of the text of "San De",and then objectively displays the controversial points of each annotation,and expresses his own views.At the same time,following Mr.Liu Qizhen’s idea of "citing Hongfan in pre-Qin classics",the author examines the handed down classics after Qin and Han Dynasties in detail,and found 194 documents records of "San De",which show the wide application and continuous influence of this theory.In addition to the direct records in the literature,this paper also notes the "San Dian" in the book of Zhou Li,which is in line with the "San De" of Hongfan,and also discusses the relationship between them.In addition,this paper makes a study on the concept of "San De" which has long been in ambiguity and unclear definition,and concludes that this concept should have two core natures of "morality and politics",and defines it as "legal thought".Under the premise and context of "legal thought",this paper also makes a special analysis of the internal text logic of "San De",and makes a new interpretation of the full text.The second chapter is the theoretical development of the legal thought of "San De".Chaotic times are often a hotbed for the breeding and burst of new ideas.As the precious political and legal thought inherited from the Shang and Zhou dynasties,the idea of "San De" gradually separated from the constraints of official studies in the special historical environment of the Spring and Autumn Period and the Warring States Period,and were widely studied,spread and accepted by all classes of authors.Specifically,the “San De” were inherited and developed by Legalists with the thought of ruling the country by hard line.It is mainly reflected in two aspects: utilitarian governance and rigorous criminalpunishment.The thought of ruling the country with conciliatory means was inherited and developed by Taoism.It is intensively reflected in Lao Tzu’s(the founder of Taoism)thought of valuing softness and weakness at the same time.The thought of advocating China’s governance(principle)was inherited and developed by Confucianism.On the one hand,the legal thought of “principle”in “San De” and the policy of "establishing principles to discipline people in times of peace and prosperity" were reshaped and transformed by Confucius into a political theory of "tempering politics with mercy and rigorousness",which had a far-reaching impact on future generations.On the other hand,the Confucian school developed the ideological core of "advocating moderation" of "principle" into an independent,complete and systematic philosophy,so that it can be widely used in more fields such as nature,society,education and self-cultivation,rather than limited to the political and legal level.The third chapter is about thepractice of the two legal thoughts— "hard line" and "conciliation" of "San De".The level of "rule of law" is the touchstone to test whether politics functions well or not.First of all,legalists took the lead in putting forward the strategy of "ruling the country by law" from the Spring and Autumn Period to the Qin Dynasty,and took "hardline" as the leading thought of legal practice,which achieved an immediate effect in controlling chaos.In a word,the legalists’ practice of "hardline" is divided into four stages.In the Spring and Autumn Period,Guan Zhong and Zichan adopted very strict political concept in the governance of the country for the first time,and explored how to control chaosstrictly,which is the establishment stage;In the early and middle period of the Warring States period,Li Xuan,Wu Qi and Shen Buhai further improved and strengthened the concept of rigid and strict strategies in the aspects of legislative system,controlling speech and officials skillfully,which is the stage of development;In the middle and late Warring States period,Shang Yang brought the book of Fa Jingto Qin Dynasty,and brought the spirit of "hardline" into the code of Qin.Through two systematic and comprehensive reforms,he quickly realized the goal of "enriching the country and strengthening the army".Since then,Qin Shihuang,who ruled the country,also pushed "hard rule of law" to the peak,which is the mature stage;During the second generation of Qin Dynasty,due to the extreme and alienation of the "hardline" rule of the country,the Qin Dynasty declined rapidly,and the legalist thought lost its exclusive status,and then gradually integrated into the new Confucian ideological system.This is the melting stage.Later,in the era of another legal though— "conciliation" in the early Han Dynasty,Huang Lao decided to take the "inaction" approach as the basis of governing the country,and adopted "conciliation" as the guiding ideology of legal practice.He also achieved the goal of "nourishing food and clothing with sparse punishment".Similarly,Huang Lao’s practice of the legal thought of "conciliation" was also divided into four stages.At the beginning of the Han Dynasty,on the basis of disadvantageous legacy of the Qin Dynasty,the fire emperor,Liu Bang,pursued "valuing softness and advocating leniency" and gradually stabilized the society in the early Han Dynasty,which was the establishment stage;Later,during the period of Empress Lu and Emperor Hui,Huang Lao’s thought of “inaction” was formally established,and the ideological imprisonment since Qin Dynasty was lifted;During the period of Emperor Wen and Emperor Jing,the practice of Huang Lao’s rule of "conciliation" was more active and popular,reaching a new height,so as to realize the prosperous governance of Emperor Wen and Emperor Jing,which is the mature stage;At the beginning of Emperor Wu,the negative factors in Huang Lao’s thought became more and more prominent.Therefore,the political mindset began to change,from“inaction” to “action”,and from “asceticism”to “free desire”.Therefore,the idea of “conciliation” was peacefully replaced by new Confucianism and gradually integrated into this ideological system.This is the melting stage.To sum up,Legalists and Huang Lao have successively explored and practiced the legal thought of "hardline" and "conciliation",which not only objectively confirmed the internal rationality of the legal thought of themselves as a contingency strategy,but also made the two governance policies show concrete operability.The fourth chapter is the practice of another legal thought—“principle” of "San De".Although legalists and Huang Lao’s practice of the other two thoughts— "hardline" and "conciliation" —has achieved temporary results in a specific historical environment,neither has realized the political vision of long-term stability.Based on the practical experience of the two,Confucianism wanted to realize peace and prosperitywith the governance of "principle",combining hardness and softness in the policies.Since then,it has undertaken the responsibility of maintaining a peaceful and prosperous country for more than 2000 years from the Han Dynasty to the Qing Dynasty.Specifically,the Confucian practice of the legal thought of “principle” has gone through four stages.First,Emperor Wu of the Han Dynasty respected only Confucianism,which provided a positive environment for Confucianism to come to the center of the political stage.The emperor took the Confucian ethical values of "Three Gang and Five Chang"(principles of feudal moral conduct)as the standard of distinguishing right and wrong,and adhered to the governance principle of "combining etiquette and law,morality and punishment".It is the policy of " establishing principles to discipline people in times of peace and prosperity" provided by Dong Zhongshu,which is the establishment stage;Secondly,this theory of Dong Zhongshu’s has been deeply expanded by the Confucianism in the Han Dynasty at the level of interpretation of law and justice,and further improved by the Confucianism in the Wei,Jin,Northern and Southern Dynasties at the level of legislation;Then,with the promulgation of the law of the Tang Dynasty—Tang Lv Shu Yi,the spirit of disciplining people by principles of Confucianism was completely manifested.The Tang people not only formally established the legislative principle of "virtue beyond punishment",but also actively practiced the judicial spirit of "everything follows the code",which is the stage of finalization;Finally,the rulers of the Song,Yuan,Ming and Qing Dynasties generally followed the legal line determined by the Tang people in their practice of the legislative ideology and the relationship between“virtue and punishment”,and keptthe societies in peace in most of the later stage of Chinese feudal society. |
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