| It's concluded from history that China would not come into being as she is how without three great men: Emperor Qinshihuang who set up systematic China firstly; Emperor Hanwudi who achieved territorial China initially; Confucius who facilitated the formation of cultural China.The interpretation and mastering of Chinese traditional law should firstly be based upon the cultural types are the historic background.From Pre-Qin Dynasty to the period of Hanwudi,Confucianism was only one variety of a hundred schools of thoughts.Only after Hanwudi, the emperor adopted Dong Zhongshu's ideas,which honoring Confucianism merely and abolishing the restthoughts , Confucianism gained dominance over the other thoughtsand got the respects from the rulers , afterwards it became thestrategy for administration. As the saying goes "Half of LunYu(thetypical works of Confucianism) can help administrate the country ".Confucianism also had gradual influence on the related legal systemsuch as the ideas " published by law when beyond Confucian ethicalcode ", "Morality the first, penalty the second ", even " adoptingConfucianism in case of no law in writing". From these, the Chineseancient law systems were dip-dyed by the Confucianism culture andthey came into a complete and unique Chinese morality and lawculture till Tang Dynasty. While at the end of 19th century thecirculation of Chinese history was broken with the invasion ofwestern powers, Chinese law systems thus gradually degraded in thecontact and collision with the western culture. A series of concepts of demonstration and legalization began to be transferred into China and Chinese law started its painful process in recent and modern times. After the reforming and opening, with the development of market economy, the western concepts such as law-first, equality, justice, judicial independence, gradually prevailed and began to dominate in the time. However, the law culture of Confucianism, the native culture, still influences potentially Chinese consciousness and conception of law, as that could be found in social life in China frequently.This article tries to discover the Confucian law value through the analysis of the argumentation between Confucianism and legalism, that is, the analysis of the function and position of law. The argument in essential is the argument of tools and the criticism of instrumentalism only, not involved in the judgment about the value of law itself.Confucian put emphasis on moral rather than law. This theory of ruling everything by moral combined Chinese traditional law and moral. Considering criminal justice first made the Chinese ancient law become public law and led to the lack of private law, which had great effected the destiny of the ancient law.Exactly, there was no notion as rule of law in Chinese tradition. Referring to the law culture of Confucianism, we must mention the legalism and the western concept of law government. Only this comparison of them can illustrate the uniqueness of Confucian law culture. The rule of man from Confucianism and the rule of law from legalism both differ substantially from those in modern sense.Confucian law instrumentalism-"law as the method" and the thoughts of "the politics of worthy" formed the tradition of the rule of man for a few thousand years in China. Even in modern China where running the country according to law is emphasized, some leaders still regard law as the tool of administration and violence, resulting in the ignorance of civil right and the long-term feebleness of jurisdiction.Through the analysis of Confucian concepts on "Justice and Benefit", on "Harmony ", on" Non-litigation" the essay exploits the value direction of Confucian culture under their influence of formation of Confucian law value. The argument of "justice and benefit "and the view on "noble character and vile character" were the symbols of Confucian culture, on which the Chinese traditional cultural character was based, to some extent, decided the fate of Chinese businessman and formed the reasons for the und... |
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