China News Service, Xining, April 5th: How can the Chinese legal system dominated by public law embody the humanistic spirit?
——Exclusive interview with Nanjie Long Yingqiang, a professor dually employed by Jiangsu Normal University and Qinghai Normal University
China News Service reporter Pan Yujie
In the popular movie "Article 20", lines such as "We are not dealing with cases, but other people's lives" and "The authority of the law comes from the simplest emotional expectations of the people" reflect the humanistic spirit of China's rule of law culture. Arouse emotional resonance from the audience. Looking back at history, how did ancient China comprehensively manage the country taking into account "natural principles, national laws, and human sentiments"? How can the Chinese legal system, which is dominated by public law content, embody the spirit of humanism?
Nanjie Long Yingqiang is China's first Chinese-Tibetan bilingual doctorate in legal history, the first Chinese-Tibetan bilingual postdoctoral fellow in jurisprudence, dual-appointed professor at Jiangsu Normal University and Qinghai Normal University, and director of the Chinese-Tibetan Legal Culture and Rule of Law Strategic Research Center at Jiangsu Normal University. I recently accepted an exclusive interview with China News Service’s “East-West Question” to answer the above questions.
The interview transcript is summarized as follows:
China News Service reporter: What basic ideas did ancient Chinese legal civilization follow?
Nanjie Long Yingqiang:
The Chinese legal civilization has been developing for thousands of years. In different historical periods, it has always adhered to the moral political thought of "the people are the foundation of the country, and the foundation is the foundation of the country". The cultural soil of "valuing the people and loving the people" has cultivated the idea of "morality governs punishment". Legal civilization concepts such as "auxiliary, be virtuous and prudent in punishment", "be lenient and prudent in punishment, and cherish human life" emphasize human ethics and virtue, emphasize education and despise punishment.
Starting from the Western Zhou Dynasty, "rituals, music, punishments, and government" were integrated into a governance strategy that coordinated with natural principles, national laws, and human sentiments and ran through all the central dynasties. "Li" refers to the norms and systems of national governance; "Le" includes the culture, thoughts, sentiments, etc. that cultivate virtue; "Xing" not only refers to punishment, but also the general name of law; "Zheng" mainly refers to the establishment of officials and the division of duties, and the establishment of political power mechanism. "Ritual, music, criminal administration" is a dynamic and complete system in the development process of Chinese legal civilization. On this basis, it also comprehensively considers factors such as geographical environment, social economy, national habits, local customs, etc., to achieve the goal of adapting to the place, time, event and situation. Clan, rule according to people.
The ideas of complementarity of etiquette and law and cultivation of both morality and law have comprehensively governed ancient Chinese society for thousands of years. It is dominated by etiquette and takes the law as the criterion; it uses etiquette to practice the law and use the law to clarify etiquette; it takes into account both "benevolent governance for the people" and "fair governance". The wisdom of the rule of law, such as prevention beforehand and good governance to guide the people, affects the effective operation of the entire state machine.
China News Service reporter: What are the main characteristics of the Chinese legal system dominated by public law? How to adhere to "humanism" in its practice and development?
Nanjie Long Yingqiang:
Ancient Chinese society has long paid attention to the sanctity and authority of royal power, imperial power and public power, which promoted the development of a centralized state in which public law dominates. The basic characteristic of the Chinese legal system is that "criminal law is the mainstay and all laws coexist". It has lasted for thousands of years and still plays a certain role today.
On December 3, 2023, on train G7382, the flight attendants popularized legal knowledge to passengers. Photographed around
At the same time, China’s tradition of attaching importance to historical records has promoted the development of statutory law. Dynasties and ethnic regimes of all dynasties have attached great importance to representative written codes. They have adopted a structural form of criminal law as the main component and a mixture of other laws to record the development of legal civilization in detail and coherently.
Specifically, during the Western Zhou Dynasty and the Spring and Autumn Period and the Warring States Period, China's legal civilization had taken an early developed form, and the first systematic feudal grammar code in Chinese history, the "Fa Jing", was formulated. Since the Qin and Han Dynasties, China has unified a multi-ethnic country. The political and social foundation of the Qing Dynasty was initially laid, statutory laws were revised and integrated with effective customary laws, and the formation of the "Tang Laws and Comments", a collection of Chinese legal codes, was promoted; under the legislative guidance of "referring to the Han Dynasty and deciding on gold", the Qing Dynasty inherited the legal system of the previous dynasty Achievements and improvement of shortcomings, ancient Chinese state law and border minority customary laws and folk laws have reached the pinnacle of coordinated development.
A seated statue of Li Kui, the author of the Dharma Sutra. Photo by Lu Xin
Throughout history, the Chinese legal system has continued to move towards "codification and codification", that is, while the laws and regulations are institutionalized and the judicial system is institutionalized, the legislative technology, law enforcement level, and legal theoretical ideas and basic principles have all reached a certain height. The centralization of power that promoted feudal rule continued to become more civilized and mature.
At the same time, ancient China followed the legal development path of "from judgment to legislation". "The Great Biography of Shangshu" stated that "Three Thousand Xia Punishments" were mostly judgments to deal with specific cases, and these judgments were used as subsequent handling of similar cases. basis and standards. All dynasties have attached great importance to precedents, judicial documents and legal interpretations, which has enabled the Chinese legal system to embark on a "mixed law" development path that combines national statutory law and folk customary law and complement each other simultaneously, and has always adhered to the "humanistic" legal civilization spiritual concept , to avoid legal instrumentalization.
China News Service reporter: In Chinese history, how can the legal civilizations of different ethnic groups exchange and learn from each other? What are the commonalities?
Nanjie Long Yingqiang:
Mr. Zhang Jinfan, a leading scholar of Chinese legal history, pointed out that the Chinese legal system was jointly created by people of all ethnic groups, embodies the legal wisdom of all ethnic groups, and is the result of the mutual exchange and absorption of the legal culture and legal experience of all ethnic groups.
In history, there are many examples of exchanges and reference between legal civilizations between the Central Plains dynasties and ethnic minority regimes. The legal culture of Tibetan and other ethnic groups has been deeply influenced by "Tang Lv Shu Yi". Among the ancient Tibetan documents unearthed in Dunhuang, there are many Tibetan translations of "Tang Code", "The Analects of Confucius", "Zuo Zhuan" and other classics, which were deeply influenced by the Central Plains. Tubo law has many characteristics similar to Tang Code, such as attaching importance to legislative activities, Strengthen the written code, change the distinction between civil and criminal punishments to separate civil and criminal punishments, integrate Buddhist laws, and integrate all laws, etc. Another example is the numerous ethnic groups in the Qing Dynasty, which formed regional legal cultures with different characteristics. The Qing government absorbed the essence from them and formed the "Imperial Regulations of the Lifan Yuan", a masterpiece of national legal systems.
In the long history, political, economic, cultural and other exchanges between China's various ethnic groups have never stopped. From mutual absorption, long-term integration to common development, all ethnic groups have practiced, enriched and developed Chinese legal culture in different time and space, and have reflected the commonality of the humanistic spirit in system establishment and legislative reform.
On December 12, 2023, citizens visited the exhibition of legal documents collected by the National Library of Beijing. Photo by Guo Haipeng
China News Service reporter: In traditional Chinese grassroots society, what legal system concepts and models demonstrate the coordination between "national law" and "human relations"?
Nanjie Long Yingqiang:
The "township rules and regulations" in traditional grassroots social governance units are independently agreed upon and voluntarily joined by the people, promoting democratic deliberation and public rewards and punishments. This long-term local culture attaches great importance to influence and guidance, as well as social morals and ethical standards. Under the guidance of national laws, it can comprehensively mediate various conflicts and disputes. As a flexible supplement to national laws, it can effectively maintain the order of local society.
For another example, the large number of "compensation for life" or criminal reconciliation cases that have occurred in China's ethnic minority areas in modern times where property penalties have replaced harsh punishments prove that the coordination and interaction between national law and ethnic minority customary law can simultaneously demonstrate the superiority and effectiveness of the former. The latter is humane, and both have great significance in treating both the symptoms and the root causes of social governance.
Whether it is national statutory laws such as China's criminal law or customary criminal laws of ethnic minorities such as the Tibetan "life price", their main purpose is to resolve disputes, calm conflicts, and appease victims and their families. When this concept is applied to the leniency system for guilty pleas and punishments, crimes can be punished accurately and timely, judicial protection of human rights can be strengthened, judicial resources can be saved, and social harmony and stability can be maintained.
The criminal law concept of "compensating the price of life" that replaces severe punishment with property punishment insists on seeking two-way protection of the legitimate rights and interests of victims and offenders, promptly restores justice and economic and ethical values of both parties, and protects people's right to life. It has always played a valuable role in the national compensation system for criminal victims, the criminal reconciliation non-prosecution system, and the maintenance of unity and stability in ethnic areas.
On December 1, 2023, in Zhaitou Village, Tailie Town, Sansui County, Qiandongnan Miao and Dong Autonomous Prefecture, Guizhou Province, a judge conducted legal education propaganda to the local people. Photo by Long Xingwei
China News Service reporter: What do Western legal thought have in common with the ancient Chinese legal civilization model? How to understand the connotation of this commonality?
Nanjie Long Yingqiang:
Friedrich Carl von Savigny, a famous German civil lawyer and leader of the historical legal school, advocated that the best source of "law" is not legislation, but custom , "Only the law living among the people is the only reasonable law." Savigny also believed that statutory law was born from customary law, and customary law grew out of the "national spirit" and was the most vital.
The British jurist Henry Maine studies "law" as a process of development and believes that law is a historical product connected from generation to generation. He studied the important characteristics of ancient codes: the older the code, the more criminal legislation; the lower the level of social development, the less civil legislation. Therefore, the difference in the proportion of criminal law and civil law in the code has become an important difference between ancient law and modern law. .
The thoughts of these Western jurists are in harmony with the ancient Chinese legal civilization model. Legal culture in common law countries uniquely expresses its developed functional attributes of customary law, private law, and case law; while in ancient civil law countries or ancient China, it fully embodies public law, statutory law, codification, etc. The functional attribute of totalitarianism is dominated by the coexistence of law.
As scholars have said, legal history is essentially the history of human beings liberating themselves. It is in the activities of creating legal culture and legal civilization that human beings can gain freedom. Only by respecting and cherishing life can we deeply and comprehensively understand the connotation of the value of justice in the mutual absorption, integration and precipitation of Chinese legal civilization and even Eastern and Western legal cultures, and ultimately safeguard human happiness and freedom with a more civilized, fair and just spirit of the rule of law. (over)
Interviewee profile:
Nanjie Long Yingqiang, Tibetan, Doctor of Laws, China's first Chinese-Tibetan bilingual Ph.D. in legal history (China University of Political Science and Law), the first Chinese-Tibetan bilingual postdoctoral fellow in Jurisprudence (Renmin University of China), dual-student of Jiangsu Normal University and Qinghai Normal University Appointed professor, director of the Sino-Tibetan Legal Culture and Rule of Law Strategic Research Center of Jiangsu Normal University, leader of the key legal disciplines of the “14th Five-Year Plan” of Jiangsu Normal University, leader of the Plateau Ethnic Culture Research Team of the Institute of Plateau Science and Sustainable Development of Qinghai Normal University . Research directions: legal history, jurisprudence, criminal procedure law, ethnic law, legal linguistics, Chinese-Tibetan bilingual law, etc.