The Philosophical Foundation Of The Criminal Nature Of The Traditional Chinese Legal Culture

Ancient legal system of China was combination of all laws, in which criminal law was main. It resulted in traditional law culture's penal quality of China. The reasons were various,including social causes and philosophical causes. Discussing from philosophical causes: 1.Group selfish departmentalism leads to the public emphasizing duty and deprising right. Group selfish department includes family selfish department and country department. The former's history is longer than the later's. Its influence is more profound. First,the people love their own families, then they love their country. Qin and Han dynasty later, family selfish department and country selfish department stand side by side. The situation of the later slightly superior to the former had been existing for two thousands years. The culture of family sefish department emphasises blood relationship and kinship. On law, it makes law show strong ethics; on values, it emphasises moral crientation of values. Morality asks man to be constious, to endure liability in social relations. It consistents with penal code in essence, namely it formulates duties which man must bear. The method adjusting social relations is morality or criminal. Country selfish department asks man put country interest on the highest status. On values, it emphasises social value, ignores individual value. Individual right gives way to society. It can not be promoted. Man think law seemed horror. Unduly emphasising social value leads to individual ignorance which society causes. Man become means to achieve some interests. Our society often become one which harms the small and weak, offers the strongman. 2.Talking about humanity and main morality, subsidiary ciminal law. Man talking about humanity divide three kind: human nature is kindhearted; human nature is evil; human nature is kindhearted and evil at the same time. But kindhearted humanity is dominant ideas. It thinks "in the early part of man, humanity is kindhearted". The kindhearted humanity put morality the first place. They think law only was assist; law may or may not be needed. So the value of law is belittled. The evil humanity are not similar to each other. Some hold that humanity is evil ,but can be reformed by later social education, namely emphasising educational effect and dening law 's effect. Some hold that humanity is evil and can not be reformed by education. Moral education won't work. We only can rely cruel torture to carry out severe punishment on small guilt. Regardless of humanity being kindhearted or evil, its effect on law culture is emphasising moral education or cruel torture containment to human nature. 3. Nature and man are unit and Chinese method of thinking. Nature and Man being parted or unit is major difference between Chinese and Westen culture. Why is the criminal law main? In essence, it goes hand in hand with Chinese method of thinking. Our Justice is for humanity. Humanity is homologous with Nature. Politics and law are in accord with Nature. Laying stress on agricature and restaining business are in accord with Nature. Formulating five punishment and executing death sentence in autumn and winter are in accord with Nature too. Because these obey Nature, emperor'scommand and cruel torture receive Nature intention.Traditional law culture's penal quality of China results in backwardness of civil law for a long time. But it is necessary that our reform and the opening to the outside world can carry out in rather stable circumstances. Especially, "administering country by morality" is added to the general policy of "administering country by law". It has to go hand in hand with traditional culture emphasising moral education. So the purpose of thesis not only carry out some new attempt in law culture( of course ,it has many shallow place), but also it goes hand in hand with the epoch spirit.