First, the problem consciousness and basic ideas
Regarding the relationship between pre-Qin legalists and modern rule of law, there are great differences and even serious opposition in academic circles. For example, some scholars believe that the pre-Qin legalists expressed a minimum concept of rule of law, because "many legalists' views on law constitute the' inheritance' of the rule of law in contemporary China". Although "rule of law" cannot be used as a modern concept of rule of law, it is undoubtedly the most basic and important content of the concept of rule of law. The similarities and differences between legalist legal thought and universalist view of rule of law can be reflected in many aspects, such as the view of legal rules, formalism view of rule of law and so on. In other words, the pre-Qin legalist thought is interlinked with the modern rule of law, and there are many aspects that are the same. However, another view holds that the pre-Qin legalists had nothing to do with the modern rule of law or even the law. "It is wrong to link legalist thought with law and trial. In modern terms, legalists talk about the theories and methods of organization and leadership. Anyone who wants to organize the people and act as a leader will find that the theory and practice of legalists are still very instructive and useful, but one thing is that he must be willing to take totalitarianism. Since the pre-Qin legalists have no connection with law and trial, the connection between the pre-Qin legalists and the modern rule of law is even more out of the question.
How to understand the relationship between pre-Qin legalists and modern rule of law? Is there a connection between them? In this regard, we can analyze it from two different angles. On the one hand, from the perspective of modern rule of law, some ideas expressed by pre-Qin legalists can be absorbed by modern rule of law (see the analysis below for details), and there are indeed some overlapping areas between pre-Qin legalists and modern rule of law. On the other hand, if we look at the rule of law from the perspective and standpoint of legalists' thoughts, we can find that the rule of law rising in contemporary China can be regarded as an extension of traditional legalists to some extent. This means that further thinking about the relationship between pre-Qin legalists and modern rule of law is an academic theme with both ideological and practical significance.
Judging from the relationship between pre-Qin legalists and modern rule of law, the evolution of legalist thought can be divided into three stages: the first period legalists represented by pre-Qin legalists; In the first half of the 20th century, the "new legalists" from the late Qing Dynasty to the Republic of China were the second period of legalists. Legalists since the mid-20th century, especially "ruling the country according to law" since the late 20th century, represent the third period of legalists. (3) Over the years, there have been many academic researches on the first three legalists-pre-Qin legalists, as well as on the theory and practice of governing the country according to law since the new period, which can be described as overwhelming. But for the legalists in the second period, it was ignored. Among the representatives of Legalists in the second period, there were both the appearance of Chen Qitian and the concealment of Liang Qichao. Academic circles have made special research on Chen Qitian's legalist thought, but from the perspective of the second period of legalism, it seems that Liang Qichao's research in the genealogy of legalist thought has not attracted enough attention in academic circles.
Second, Liang Qichao's early demarcation of Legalism.
Liang Qichao's early demarcation of legalists was his first attempt to demarcate legalists. This attempt is mainly reflected in the article "On the History of the Development of China Law" from 65438 to 0904. The center and axis of this pre-Qin jurisprudence paper is the rule of law. According to this article, the rule of law in China originated in the early Spring and Autumn Period and flourished in the late Warring States Period. In the meantime, the thoughts against the rule of law mainly include four kinds: ruling by doing nothing, ruling by people, ruling by courtesy and ruling by situation. Unfortunately, these four thoughts are not enough to save the disadvantages of the times, so the rule of law came into being.
Among them, governing by doing nothing mainly comes from Taoism, which can be summarized as governing by doing nothing. The main representative of ritualism is Confucianism. As for the rule of man, both Mohist and Confucian have it. Generally speaking, Liang Qichao's various "isms" can't correspond to each school one by one. Therefore, although the rule of law is advocated by Legalists, and its main ideas are mainly expounded by Legalists, the rule of law is not the exclusive label of Legalists, because the rule of situation is also advocated by Legalists, and he also expounded the rule of situation.
Within the Legalists, Shen Dao is the main representative of the rule of law, while Guan Zi is the pioneer of the rule of law. "Guanzi Human Law" said: "It is a great branch for a monarch and a minister to obey the law from top to bottom." It is a summary of the rule of law. Han Feizi also recorded many remarks about the rule of law. For example, a difficult chapter in Han Feizi says: "People are in charge, but when they are in harmony, they are not." It is also a positive expression of the rule of law. In contrast, Han Feizi's difficult situation reflects the opposition between the rule of law and the rule of law within the Legalist school. As the name implies, "dilemma" is the condemnation and criticism of "hidden rules".
It is based on this dilemma that Liang Qichao made a preliminary definition of the relationship between the rule of law and the current situation. On the one hand, there is a certain correlation between the rule of law and the rule of potential. Because, "the rule of law must be achieved through coercion, and coercion must be based on power before it can be achieved. Therefore, people who rule by law are mixed with the rule of power, and the relationship is almost two in one (there are many legalists who speak by power, and today they are too numerous to mention). " In other words, the rule of law is inseparable from the coercive force supported by power, and there is no essential difference between power and power, even different aspects of the same thing. Therefore, the rule of law and potential rule are always mixed together, or, without potential rule, the rule of law cannot exist independently. However, on the other hand, the rule of law does not agree with the rule of power. "Legalists are by no means passive. Nor is it a promise of power. Anyone who speaks with power is not a true legalist. Liang Qichao's assertion gives legalists a restrictive explanation: "True Legalists" stress the rule of law; Legalists who talk about governing the country by the situation and speak by the situation are not "true legalists."
This judgment is logically contradictory to the previous statement that "Legalists mostly rule by potential". According to the standard of "true legalist", "guiding according to circumstances" does not belong to legalists. However, Legalists also include many "people who govern according to the situation". This inconsistent view shows Liang Qichao's value position: advocating the rule of law. Because, it is in this book "On the History of China's Legal Development" that Liang Qichao put forward the conclusion that "the rule of law is the only doctrine to save the present era". ⑦ The only rule of law that can be relied on is the rule of law expounded by legalists. It can be seen from this that Liang Qichao favored the rule of law in the legalist thought, but rejected power in the legalist thought. It is this strong value preference that impacts Liang Qichao's self-consistency in theoretical logic: legalists who advocate potential rule are excluded from legalists, at least from "true legalists". Of course, in a broad sense, legalists who advocate potential rule can also belong to legalists. Therefore, there are two different ideas in the Legalist school: rule by law and rule by situation. In addition, "the difference between the rule of law and the rule of power is very obvious. People with power also have power. The rule of law must not give up power. However, before the law, power is absolute. After the existing laws, power is relevant. There are no boundaries for absolute reasons, but there are boundaries for relationships. If the power is limited, it will be subject to its power and must be guaranteed. " Today. In a word, the difference between the rule of law and the rule of power is that the essence of the rule of power is the rule of power, and its characteristics are as follows: power is infinite, absolute and unrestricted. Such power rule can be roughly equivalent to modern so-called authoritarianism or totalitarianism. Moreover, under the domination of potential rule, the rights of the ruled can not be guaranteed. Corresponding to this potential rule, the essence of the rule of law is that power is strictly limited by law, and the rule of law also needs power as a support. Without power and its coercive power, the rule of law cannot exist. However, under the rule of law, because power is restricted and restrained by law, power cannot be exercised arbitrarily, which can effectively protect the rights of the governed. These views reflect Liang Qichao's early division of legalists and their opposites.
Third, Liang Qichao's demarcation of legalism in his later period.
1922 The Lecture Notes on the History of Political Thought in Pre-Qin Dynasty is the stereotyped expression of Liang Qichao's later thoughts. In chapter 13 of this book, The Thought of Legalists (hereinafter referred to as Legalist Thought), Liang Qichao made a theoretical cut between Legalists and Legalists: "Legalists became a systematic school too late, since Shen Dao, Han Fei. However, the rule of law originated very early. Guan Zhong and Zi Zi did sprout when they gave birth. Its theoretical basis is that Confucianism, Taoism and Mohism each have a part as the forerunner. " Pet-name ruby that is to say, the rule of law and legalism can't draw an equal sign. The rule of law is derived from the idea of Guanzi. As a legalist school, it only appeared in the times of Shen Dao, Yin Wen and Han Fei. From the point of view of legalists, there were two schools of legalists at that time, which were very different from the rule of law, namely, the rule of technology and the rule of situation. In other words, the legalist thought can be divided into three parts: rule by law, rule by skill and rule by power. The difference between the rule of law and the other two factions can be described as follows:
1. Rule of law and rule of law
The relationship between the rule of law and the rule of law is contradictory. The opposition between them is due to the fact that law and art are "two opposing nouns". In short, the open and unified "law" of "the role of technocrats is all in the dark" and "compiling various books and distributing them to the people" is completely different. The main representative of technical bureaucracy is Shen Buhai. "The school of children of God, almost like Mickey's masculine generation in medieval Europe, advocates manipulation through conspiracy. During the Warring States period, strategists were the most happy and loved to listen. And it is said to be the enemy of legalism. "(1 1) compare China's Shen Buhai to Italian Machiavelli, and machiavellianism can also be said to be China's traditional Machiavellianism. This kind of technical bureaucracy is completely in the opposite of the rule of law, and it is the positive enemy of the rule of law.
The rule of man is expressed by Shen Buhai, and the expression of the rule of law can also be found in Guan Zi and Han Feizi. For example, Guanzi Benevolence Law says "Benevolence is not wise", which means that to achieve national governance, we can only rely on law, not policy. "Guanzi Famingpian" said, "There is no mistake in power and no mistake in politics, and the rule of law is the only measure." According to Guanzi, which is often quoted, modern scholars have come to the conclusion that "the rule of law is the pillar of the rule of law in Guanzi". (12) "Guanpian" also said: "A gentleman has a way, but a wise man is not selfish. The monarch who has no choice, since he has tried, will abandon the law and do it ... abandoning the law and doing his own thing is called chaos. " It is in order to prevent chaos and seek treatment, Han Feizi Youdu Chapter put forward the epigram of "serving public law and abolishing private skills".
It can be seen that the opposition between the rule of law and the rule of law is mainly reflected in: first, the law on which the rule of law is based is open and certain; The technology on which art rules are based is secret and hidden, so it is also uncertain. Second, the rule of law is binding on the monarch. "It is the most inconvenient to be a smart monarch." Therefore, Shang Yang and Wu Qi can make the country rich and strong, but the body is absurd after all "(13). Technical politics caters to the monarch, just as machiavellianism caters to the monarch. Third, the rule of law is the theory of "serving the public", which is based on "public law", so it is the theory of realizing national prosperity and governance; Technocracy is a theory of "serving private interests", which is based on "private skills" and only satisfies the monarch's own private interests, and will eventually lead to chaos.
2. Rule of law and rule of power
The rule of law and the rule of power are also opposites. Shen Dao, the representative of Qianzhi, famously said, "Yao is Shu Ren, but three people cannot be ruled. And valerian is the son of heaven, and can mess up the world. I know my position by this knowledge, but I don't admire the wisdom. " Han Feizi's difficult situation criticized this potential rule: "The rich must make the saints use themselves, while the unscrupulous don't have to use themselves." . Saints use it, the world governs it, unscrupulous people use it, and the world is chaotic. If people are lazy, there are few sages and many unscrupulous people, while the unscrupulous people who help troubled times with power are those who mess up the world with potential and rule the world with potential. Liang Qichao found that "the situation of rulers is autocratic, while the rule of law is the opposite of autocracy". "The rule of power is the product of natural inertia, and the rule of law is created by human efforts. Therefore, it is the difference between the law and the situation where the other party has no income and the other party has income "(14).
From this we can see the opposition between the rule of law and the rule of power: first, the product of the rule of power is autocracy, and the product of the rule of law is the opposite of autocracy-although Liang Qichao did not point out what the opposite of autocracy is (such as democracy), the product of the rule of law is obviously not autocracy. Second, the law of potential is naturally formed and randomly generated. If people like Yao are in power, then the world will be ruled; If people like Jie are in power, the world will be in chaos. The result caused by the law of potential is also natural and random. However, the rule of law is the result of politicians' active efforts. Because, whether making or implementing laws, we need to give full play to the creativity and initiative of politicians, and even the result of the active efforts and cooperation of the whole political community. Third, it is difficult for power rule to lead to world rule, because in political unity, the sages expected by power rule are always few, while the unscrupulous are very common. However, the rule of law can form a monopoly situation. Because the rule of law does not expect sages to be in power, "neutrals" can rule the world according to the rule of law. As Everything is Wrong says: "Besides, my husband Yao Shun is rebellious, and a thousand generations have come out ... the middle one is not as good as Yao Shun, and the lower one is not rebellious. The rule of law, but the rule of law. Treating Yao and Shun with the back of the law, Yao and Shun being the rule, is a thousand-year chaos and a rule. Law enforcement is arrogant, and arrogance is chaotic. It is a thousand years of chaos. "
Comparing Liang Qichao's representative works in the early and late period, we can see that Liang Qichao's demarcation of legalism is similar. The aspect of "great harmony" is reflected in: all stand on the position of rule of law, divide rule of law and non-rule of law in legalist thought, and all praise the rule of law and despise the non-rule of law. "Small differences" include: in the history of jurisprudence development in China (1904), the opposite of rule of law is rule by potential; In the history of political thought in the pre-Qin period (1922), the opposite of the rule of law included both the rule of power and the rule of skill. This means that the division of Liang Qichao's legalist thought is developing and changing, and the history of political thought in pre-Qin period embodies the stereotyped expression of Liang Qichao's legalist thought.
Fourthly, the extraterritorial influence of Liang Qichao's separation of legalists.
Because the rule of potential and the rule of skill are opposite to the rule of law, the legalist thought in pre-Qin period can be divided into two camps: the rule of law and the non-rule of law. Liang Qichao's demarcation of legalism has attracted the attention of overseas academic and ideological circles as early as the 1920s.
1926, that is, four years after Liang Qichao's History of Political Thought in Pre-Qin Dynasty was officially published, the legalist thought, that is, the part discussed in this paper, was translated into French by Jear Escarra, a French civil jurist and comparative jurist. It is worth mentioning that Escala was a legal adviser to the government of the Republic of China from 192 1 to 1930. China Law, published by him in 1936, was highly praised by western academic circles, and he himself was called "one of the top China legal experts in Europe and one of the international pioneers of China law" by William alford, a professor at Harvard University (15). It is this China legal researcher who spread the legalist thought in Liang Qichao's History of Political Thought in Pre-Qin Dynasty to the western world.
1927, a 25-year-old French thinker Alexandre Kojève (1902- 1968) became interested in Chinese and China's ideology and culture. (16) read the French version of the concept of pre-Qin law and legalism, and he took it. " In this commentary, Koyev wrote: "When publishing this book, translators (probably including the author himself) all pursued realistic political goals: to seek a pro-Western China school of thought (direction) in legalist theory, and they are committed to restoring those hopeful theories, so that it is easier to establish a new China and make it easier for China and the West to accept each other." (17) That is to say, Liang Qichao, the author of "The Concept of Law in Pre-Qin Dynasty" and "The Legalist Theory", like the translator Escala, hopes to seek pro-Western China thoughts in the Legalist Theory, or seek ideas that can be accepted by the West. Liang Qichao divided the legalist thoughts, extracted the legalist thoughts from the legalist thoughts separately, and further highlighted them, so as to form a certain contrast with the rule of technology and power, that is, to seek the rule of law acceptable and understood by the west in the legalist thoughts.
Therefore, Liang Qichao's division of legalist thought, especially the manifestation of legalist rule of law, gave Koyev the impression that "all valuable places in China's understanding of law were created by legalists, which laid the foundation for the new China, and the new China only needs to develop this foundation to achieve the achievements achieved by the West." (18) here, Koev's recognition of Legalism is based on his recognition of Liang Qichao's views to a considerable extent, because Liang Qichao attributed Legalism to Legalism, which is an integral part of Western civilization and contributed to "the achievements made by the West".
Regarding the rule of law by legalists, Koyev's point of view is that the legalists' theory of "law" actually does not come from new ideas, but from the actual needs of real politics: the dispute between them and Confucianism is not a dispute between different schools of China Thought, but a dispute between practical politicians and philosophical theorists (if appropriate, it can be called utopianism). Therefore, their legal concepts have nothing in common with Roman legal thoughts. Their law is not absolute, it is only a practical tool in the hands of the state, and this tool is still in the functional relationship with the state, or rather in the relationship with the state leaders. As Liang Qichao said, this is not because legalists did not consider their own preconditions, but the direct result of their basic views. In this way, in Coffey's place, the legalist thought, which was just rescued by Liang Qichao from the rule of art and power, once again escaped into the ranks of what he called "Mimicvili" generation. Coffey even thinks that legalists can't be regarded as pro-Western thoughts, and their theories are not innovative in theory and have no profound influence on China's thoughts "(19).
Koyev further pointed out: "Even if we want to find a new theory about law in the legalist theory, we should not ignore that this theory has nothing to do with China, and even today's' Westerners' in China do not fully agree with them." In other words, if the rule of law chosen by Liang Qichao in legalist thought is understood as the rule of law in the western sense, it has nothing to do with ancient China, because there can be no rule of law in the western sense in ancient China. Regarding Liang Qichao himself and his translation and introduction of legal concepts and legalist theories in the pre-Qin period, Koyev's view is that "Liang Qichao can't stand completely beside the western legalist views he supports", and Liang Qichao's "exposition" has certain subjective limitations. On the one hand, the concept of Legalist school he adopted was extremely broad, and all the people whose views were consistent with the definition of the main views adopted by the school were included in the school. On the other hand, he emphasized the quotation supporting this definition, but he didn't say anything himself "(20).
These comments from foreign thinkers, whether positive or negative, whether appropriate or inappropriate, whether with the critic's own position (which is almost inevitable), can explain the influence of Liang Qichao's discussion and demarcation of legalism in the mainstream western ideological circles.
Fifth, the western background of Liang Qichao's legalist thought.
On the one hand, Liang Qichao's division of legalism has had a certain influence on western academic circles and attracted their attention; On the other hand, fundamentally speaking, it is a product under the influence of western thought. Moreover, from the perspective of the degree of influence, the influence of the western world on Liang Qichao is far greater than that of Liang Qichao. So, what thoughts in the western world have influenced Liang Qichao's legalist demarcation? On the whole, all the western thoughts that Liang Qichao contacted before 1922 had an indirect influence on the legalist thoughts in other circles. However, even in the chapter of legalist thought, we can see many aspects of western thought. Liang Qichao combined a variety of western thoughts with legalist thoughts, indicating that these western thoughts directly and obviously influenced Liang Qichao's demarcation of legalist thoughts.
1. Laws of nature
One of Liang Qichao's important contributions to modern jurisprudence in China was to take the lead in introducing the concept of natural law into China. As early as 1904, Liang Qichao compared the legal view of Confucianism, Buddhism, Taoism and Mohism with natural law. According to scholars' research, this is the beginning for China people to interpret ancient Chinese laws with the concept of natural law. (2 1) In the chapter "Legalist Thought", Liang Qichao is also used to using the concept of natural law to explain the legalist view of law. He said that "law in a broad sense" is "a model that expresses human behavior based on natural law." Of course, it goes without saying that legalists call law a fundamental concept "(22). Liang Qichao's example is what Guan Fa Pian said: "The qi rooted in heaven and earth, the sum of cold and heat, the nature of water and soil, the lives of people, birds, animals and plants. Although there are not many things, everyone has something to say, but nothing has changed. Meaning, name, time, image, class, ratio and form are also called images. Size, rope ink, ruler, balance stone, bucket and angle are also called. Gradually, smoothly, confused, for a long time, convinced, learned, it is called transformation. These expositions in Guanzi, in Liang Qichao's view, express the legalist concept of natural law. Liang Qichao used the western concept of natural law to explain the legal concept of legalists. A basic theoretical expectation is to defend the rule of law of legalists. Because the legal concept of legalists can be explained in the western natural law theory, it means that the legal concept of legalists, especially the rule of law of legalists, can be recognized in the western world.
2. Constitutionalism
In the division of legalism, western constitutionalism is also an important ideological reference. Liang Qichao believes that legalist thought has one of the biggest defects, that is, it cannot touch the root of the legislative power problem. Although the Legalist theory reminds the monarch: "It is chaos to abandon the law and be private." (Guanzi Fapian) However, the laws faced by legalists are, after all, formulated by the monarch. The monarch can make laws or repeal them, which makes legalists face great danger in practice. Therefore, the Legalists' view that "law enforcement will rule for a thousand years, and life will be chaotic" cannot be established at all. "If the rule of law is to be justified, it must at least be like the so-called constitutionalism in modern times." However, the legalist rule of law has nothing to do with modern constitutionalism. Although Guanzi Seven Laws pointed out the disadvantages caused by "all countries have laws, but there are no laws that must be implemented", it could not be solved. Because: "it is uncertain whether the law that makes the law mandatory can exist under the people-oriented country." Under the monarchy, there is no way to solve this problem. " (23)
This is the inherent problem of legalist rule of law: under the monarchy, laws can be abolished at any time, and the implementation of laws can not be guaranteed, making the goal of "rule of law" to achieve "permanent rule" become passive water and trees without roots. Liang Qichao's countermeasure is to create "laws that must be enforced" with "constitutionalism" as a shield to ensure the realization of the goal of "ruling by law". Liang Qichao's so-called constitutionalism does not have a strict and precise definition. According to his early understanding, the abbreviation of constitutionalism is constitutionalism. (24) The core symbol of constitutionalism is: the establishment of parliament and the formulation of the constitution. Under such a constitutional system, the constitution and laws are formulated by the parliament and supervised by the parliament, which has achieved a complete change in legislative power. With such "behind-the-scenes constitutionalism", it is possible to overcome the biggest defect of legalists. This view of Liang Qichao is called "Liang Qichao's plan" by scholars to solve the "Shang Yang's difficult problem". (25)
3. Constitutional monarchy
In constitutionalism, constitutional monarchy is a special and concrete form. Liang Qichao not only emphasized constitutionalism, but also mentioned constitutional monarchy many times in constitutionalism. From the perspective of Liang Qichao's ideological course, the western constitutional monarchy and the practice of virtual monarchy, especially the British constitutional monarchy, were the thoughts and practices that Liang Qichao agreed with before the Revolution of 1911. 1905 The Theory of Enlightened Autocracy is a concentrated expression of Liang Qichao's constitutional monarchy thought. (26) China, which extends to 1922, is an important reference for Liang Qichao's legalist thought, even under the background of constitutional monarchy or virtual monarch, which is not realistic.
In the Thought of Legalists, Liang Qichao wrote: "The fundamental spirit of Legalists is to admit that the law is absolutely sacred, and the government is not allowed to interfere in the law." This idea about the sanctity of the law and the government's compliance with the law can be found in Guanzi Law: "The monarch legislates for autonomy, and the device is self-correcting ... the prohibition is better than the body, so that it can be done by the people." This legalist spirit "is consistent with the so-called constitutional monarchy in modern times" (27). And according to the legalist idea, the monarch does not have to bear more responsibilities. "Modern heads of state ruled by law are irresponsible, and the theory is half" (28). It can be seen that the legalist thought can also be explained in the theory of constitutional monarchy and the practice of virtual monarch, and constitutional monarchy is also a concrete reference for Liang Qichao to divide legalist thought.
Excerpted from Baidu netizens, thank you.