This is unique in the world legal culture. At present, the modernization of China's legal culture has become an integral part of China's social modernization, and China's socialist legal system is moving towards the grand goal of "ruling the country according to law and building a socialist country ruled by law". Under this background, how to critically inherit the reasonable elements of China's traditional legal culture, and then provide a socialist legal modernization model with China characteristics for the development of the world's legal civilization will remain an important topic. Italian historian Croce famously said, "All history is contemporary history". Studying the ancient Chinese legal culture, revealing its characteristics and understanding its contents more clearly will also help us to see the clues that have not yet appeared in reality from history, and study and analyze the formation of China legal culture, which is conducive to the construction of today's socialist legal system and the improvement of the socialist legal system.
Chinese ancient legal culture has a long history. Since the Xia Dynasty entered the class society, China's legal culture began to grow and develop on the basis of the original clan and tribe custom culture. After Xia and Shang Dynasties, the basic pattern and characteristics of China's legal and cultural traditions were initially established. By the Spring and Autumn Period and the Warring States Period, China's cultural thoughts had blossomed and a hundred schools of thought contended. During the period of Emperor Wu of the Han Dynasty, the cultural policy of "ousting a hundred schools of thought and respecting Confucianism alone" was implemented, which formally established the official ideological position of Confucianism and basically formed the legal tradition in ancient China. After Wei, Jin, Southern and Northern Dynasties to Sui and Tang Dynasties, it entered a mature and developed state. The Law of the Tang Dynasty represents the highest achievement of ancient Chinese law. After the Tang Dynasty, the Song, Yuan, Ming and Qing Dynasties were basically developed on the basis of the legal system of the Tang Dynasty, with gains and losses.
Dynamic characteristics of ancient Chinese legal culture;
During the thousands of years of historical evolution in ancient China, the legal culture of each period is also different. Judging from the dynamic development process of ancient Chinese legal thought, it is synchronous with the development of politics and economy.
In Xia and Shang Dynasties, due to low productivity, the law was guided by theocracy. In Xia and Shang dynasties, the slave owners and nobles transformed the original religious superstition into the theory of "divine right of monarch" and "punishment on behalf of heaven", making it a tool to serve a few exploiters. Up to now, there is no conclusive historical data to explain the ideological situation of Xia Dynasty. However, from some fragments of ancient books, it can be seen that the rulers of Xia Dynasty have begun to use theocracy to maintain the rule of slave owners. For example, "The Analects of Confucius Taibo" said "filial piety to ghosts and gods", and Zhao Gu, a senior minister, said: "There are summer clothes." In Shang dynasty, with the development of slavery and the strengthening of kingship, the theocracy thought also developed. The rulers of Shang dynasty also strongly advocated the theocracy of destiny superstition. The Book of Rites says: "Yin people respect God and lead civil gods." The Book of Songs, Ode to Business and Long Hair says that "the son of heaven, Li Zi, gave birth to business". During the Western Zhou Dynasty, on the one hand, the ruling clique inherited the political and legal thoughts of Xia and Shang Dynasties, such as "taking orders from heaven" and "replacing heaven and Xingtian"; On the other hand, in view of the historical lessons of the demise of Shang Dynasty, it emphasizes that "virtue" is the complement of destiny, and puts forward the theory and basic national policy of "matching heaven with virtue" and "respecting heaven to protect the people". Under the guidance of this principle, the rulers of the Western Zhou Dynasty put forward the legal thoughts of "cautious punishment" and "unforgivable punishment", that is, ruling the country by virtue and using punishment cautiously.
In the early Western Han Dynasty, after years of war, social productive forces were severely damaged, and everything was in ruins, making people's livelihood difficult. Politically, the tyranny of Qin dynasty made people's resentment boil, people's hearts deserted and society turbulent; Ideologically, most of the rulers in the early Han Dynasty personally experienced the peasant uprising and witnessed the rapid demise of the powerful Qin Dynasty. They also knew that the reason for the demise of the Qin Dynasty was the tyranny of torture and heavy taxes. In order not to repeat the mistakes of the Qin dynasty, the rulers in the early Han dynasty often took Qin as a mirror. Therefore, in order to resume production and share interest with the people, the rulers in the early Han Dynasty took Huang Lao's inaction theory as the guiding ideology for making laws. Starting from Emperor Gaozu of Han Dynasty, the Han Dynasty adopted the measures of "restraining the law and rescuing the forbidden", and formulated a set of political, economic and legal systems completely different from the Qin Dynasty according to this principle, which made the Western Han regime consolidate rapidly.
During the period of Emperor Wu of the Han Dynasty, political stability, economic development and national strength were enhanced, but the policy of doing nothing was contrary to the growing desire of the rulers at that time to strengthen centralization and unity. Confucianism, on the other hand, adapted to this need, so the legal thought of the Western Han Dynasty changed from Huang Lao's inaction to "exclusive respect for Confucianism". After more than 700 years of development in Wei, Jin, Southern and Northern Dynasties, this thought reached its peak in Sui and Tang Dynasties. "On the Law of Tang Dynasty" vividly expressed this thought as "morality is the foundation of politics and religion, and punishment is used by politics and religion. If you are still carried away by Xiaoyang Qiuxiang, you must do it. "
After the establishment of the Tang Dynasty, the rulers summed up profound lessons from the historical facts of the demise of the Sui Dynasty, and put forward the policy of "benevolence at the end of the punishment" to replace the tyranny at the end of the Sui Dynasty. Relieve social contradictions and consolidate feudal rule.
The rulers of Song Dynasty formulated the basic national policy of strengthening the centralized feudal absolutism system, which also strengthened the legal content of centralized feudal monarchy absolutism, made the legal forms such as "editing" develop prominently, the law of punishing "thieves" became more and more cruel, and the system of "judging cases by imperial decree" appeared in the judiciary.
During the Ming Dynasty, feudal society declined. Due to the corruption of official management and lax law and discipline, the legislative guiding ideology of "punishing education" and the judicial guiding ideology of "ruling the country with heavy code" are put forward. When Zhu explained Ming Punishment and Good Education, he intentionally improved the position of punishment in the relationship between ceremony and punishment, saying: "courtesy, law and substance". [10] thinks that etiquette and law are both manifestations of rationality, and they are equally important to governing the country and cannot be neglected. Therefore, in the Ming Dynasty, the thought of punishment was a legal guiding ideology, which listed punishment and education as equally important ruling means. Zhu Yuanzhang learned the lesson that "the imperial court was weak and the Wei government moved down", and the discipline was lax and the officials indulged, which led to the deepening of contradictions and the collapse of the moon. In view of the early establishment of the Ming Dynasty after the turmoil, he adopted the principle of "ruling troubled times with heavy codes" and declared: "Hu Yuansheng is generous and I want to conquer China." Zhu Yuanzhang's "severe punishment" is different from the "full-time rule of law" in the Qin Dynasty, but "imitation is the law, courtesy is the guidance of the people, conviction is the stubbornness", which is unified with the principle of "punishment is the education".
The Contribution of Ancient Chinese Legal Culture to the Modernization of Rule of Law in China;
Stepping into a new era, China focused on the modernization of the rule of law and reflected on the trend of traditional legal culture. However, on the road of pursuing the modernization of the rule of law, both positive and negative factors of traditional legal culture have influenced the legal construction in China. Our present era is in a contradictory situation of pluralistic reconstruction, bearing all kinds of cultural attractions. We are faced with the contradiction between the inheritance and innovation of traditional legal culture and the contradiction between traditional legal culture and western capitalist culture. It is true that the main contents of China's traditional legal system based on natural economy and feudal imperial power politics are incompatible with the requirements of modern society, or even diametrically opposed. It reflects the decay, decline and darkness of the feudal system, and its dross and disadvantages are indeed endless.