【Reading Notes】Chapter 1 of Chinese Law and Chinese Society: Family

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Title: Chinese Law and Chinese Society Author: Qu Tongzu Publisher: The Commercial Press Pub Date: 2010-11-30

About the Author

Qu Tongzu, a famous historian in mainland China, entered the graduate school of Yenching University in 1934. In 1939, he served as a lecturer in the three departments of sociology, politics and economics, and law of Yunnan University, and was later promoted to associate professor and professor, and in 1944, he also served as a lecturer at Southwest Associated University.

Chapter Overview

Chapter 1 Family

Section 1 Family Scope The ancient family is the most important subject, the clan is the synthesis of the family, everyone is linked by blood relationship, kinship is only calculated from the father's side, with paternal authority as the core, and constantly extends outward, forming an ethical order within the family, so when it comes to ancient society and ancient law, the family is a topic that cannot be avoided. The family is a group of kinship who live together in a smaller area. The righteous family and family parts of the historical cohabitation are special cases with education and financial support. Generally, the family is an economic unit and a common living group, and the clan is a combination of the family and a blood unit. Section 2 The patriarchal family is patriarchal, the father is the absolute ruler, and all the highest powers, such as economic rights, legal and religious rights, and even the rights of life and death, are concentrated in his hands, which is simply the patriarchal power. These powers are not only given by law, but also by Confucian ethics. Children and grandchildren do not seem to be individuals in this family-like algorithm, as long as their fathers and ancestors still live, they will always belong to their fathers and ancestors, and they can never be separated from the family. It can be seen from some articles and precedents summarized by Qu Lao that right and wrong are not important, and the law focuses on ethics rather than right and wrong, that is, the right and wrong of a case or event are not the first, and the ethics program is often the law, and it is the top priority for society to maintain and operate well, so there are too many rules in ancient China that modern people cannot be foolish and filial piety and violate nature. Ancient Chinese law is often seen as contrary to the modern rule of law, and is in opposition to the basic concepts of modern rule of law, such as "equality" and "freedom". However, when you no longer judge with bourgeois values, and no longer mechanically use God's view of history to criticize how inhuman nature and hypocrisy ancient China was; Instead, if we re-examine the relationship between ancient Chinese law and ancient society from the perspective of the family nature of Chinese society, you will find that it is a good tool for maintaining social stability and order, and a unique fruit bred in China's unique social soil, which cannot be simply measured by the standards of Western society. While patriarchy is recognized by ethical law and endowed with all kinds of absolute power, it also bears the obligation to be responsible for each individual in the family. The parents should also be responsible for the crimes committed by family members, and the person who is at fault may not bear legal responsibility, which is the so-called: the son does not teach, and the father is at fault. The rights and duties of the fathers and ancestors are designed in law to be a kind of management and maintenance of the social unit, and if each family can maintain order within its unit and be responsible to the state, then the order of the whole society can be maintained. Section 3: Criminal Law and Familial Doctrine in the Management of the Family, Where Disputes Arise Between Family Members, the Law Relies Solely on the Identity and Status of Both Parties in the Family to Adjudicate the Law. The code of ethics is often the basis for legislation, and decisions are based on the order of kinship. For example, if the following offenders are committed, the closer the relationship between the superiors, the more severe the punishment will be for the subordinates, and in the same way, the punishment will be lighter for the inferiority of the superiors and inferiority to the inferior. Taking the relationship between relatives and relatives as the legal criterion, that is, maintaining the ruling order of monarchs, ministers, fathers, fathers and sons advocated by Confucianism. (1) Violations between relatives: 1. The crime of homicide - the direct family has the right to educate the offspring, and the crime of injury is not established; Children and grandchildren, on the other hand, adopt aggravarianism towards their parents; The crime of injury between relatives other than immediate family members is different from ordinary people, and there are kinship and differences. 2. Adultery – Sexual taboos are very strict within the patrilineal family community, and the law punishes incest. The punishment for adultery is the same for both parties. 3. The crime of theft - the crime is inversely proportional to the degree of kinship, the closer the relationship, the lighter the punishment, and there are also preferential treatment such as the exemption from stabbing by relatives, the purpose of which is to maintain the harmony and love of the family. (2) Tolerance and concealmentChinese legislation is influenced by Confucianism, and the political emphasis is on filial piety, and the laws of successive dynasties have recognized the principle of family compatibility and concealment, but it is not applicable to major crimes such as rebellion and rebellion. (3) Substitution of punishment refers to the pardon or commutation of the offender's children and grandchildren at the request of the offender's children and grandchildren. In some eras, the law also changed the substitutionary punishment from a right to a prescribed obligation. (4) Probation and exemption from probation means that the ruler is exempted from the death penalty because of the old age and lack of health of the offender. Exemption from punishment is mainly applicable to widows and brothers who have committed more than one crime. Section 4 The concept and habit of revenge and revenge among relatives were extremely common in ancient and primitive societies. Society recognizes the right to revenge and considers the harm of the individual to be equal to the harm of the whole race, and that revenge is a joint duty, a sacred duty. The revenge of Chinese society is not limited to relatives, but also to Wulun, and even friends are among them. Although the law actively prohibits revenge, revanchism is deeply rooted in the hearts of the people, and ethics and law are often in a contradictory position. Section 5 Administrative Law and FamilialismChinese politics and religion are based on ethics and norms, and the relationship between politics and family is incomparably close. On the one hand, the government officials said that they were not allowed to take office if they violated the names of their fathers and ancestors; The name of the place to be appointed shall not conflict with the name of the father and ancestor, and it shall be called a crime; On the other hand, it is not allowed to abandon the responsibilities of relatives; It is not a crime to fail to take office because of serving relatives, which is called the prohibition of the official who entrusts relatives. At the same time, there is also yingyang, that is, officials are not allowed to move their relatives to serve and support (Ming Dynasty) and Ding worry, that is, the mourning of parents should be Ding worry, and only after serving can they be restored.

Summary of perceptions

After reading Mr. Qu Tongzu's "Chinese Law and Chinese Society", he wrote the following reading notes, in which he used a rigorous academic attitude and a new method of sociology to comprehensively integrate the study of ancient Chinese law, leaving a monument in the history of China's legal system.

Of course, it is precisely because of this that the whole book is also redundant and obscure, Mr. Qu Lao based on a large number of legal provisions, cases, precedents and conventions in ancient China from the Han to the Qing Dynasty for more than 2,000 years, put ancient Chinese law into the society at that time to observe and analyze, and put more than 2,000 years of legal history and social relations into one book, the amount of work is too huge, the theme is too grand, it is inevitable that this book will take a lot of time. However, Qu Lao used his academic skills and research attitude to open up a path of combining the study of legal history with social history, believing that studying law from the society is the best way, and I can't help but think of a famous saying: The study of law needs to be understood from the perspective of sociology, which is the most closely related and inseparable category of law. Now that I think about it, it is true that law is a product of society, and it is inseparable from society, and the law of any period is formulated for the purpose of maintaining and consolidating the social system and social order of the time, so the study of law is inseparable from the study of the society at that time. These are some of my thoughts on the book in general, and here are some of my thoughts on the subject of the book. Family and class are the basic spirit and main characteristics of ancient Chinese law that Qu Lao talked about, and they occupy a prominent position in law, and they represent the social system and values that are jointly upheld by law, morality, and ethics, that is, the so-called Gangchang Mingjiao of the ancients. Speaking of famous religions, I suddenly remembered that the slogan played by Zeng Guofan during the Taiping Heavenly Kingdom Movement was "Defend Famous Religions", which is the so-called Confucianism and Confucius and Mencius in popular terms. Since the birth of the Spring and Autumn Period and the Warring States Period, Confucianism has been integrated with Chinese history, and if we peel off the cloak of Confucianism that changed for domination, its core is the concentrated embodiment of the will of the ancient Chinese ruling class. Ancient Confucianism believed that family and social identity are the core of etiquette, and it is also the pillar of social order in Confucianism. If the four dimensions are not open, the country will perish. Although ancient Chinese law was all governed by Confucian ethical thought and religious philosophy. But this is not to say that Chinese law has been dominated by Confucianism since pre-Han times. The laws of the Qin and Han dynasties were enacted by the Legalists, and there was basically no element of Confucianism in them. The Confucianization of law is a gradual process. The so-called Confucianization of the law, on the surface, is the Ming punishment and the teaching, but in fact in the bones it is the question of how to incorporate the spirit and content of the rites into the laws formulated by the Legalists.

Producer: Zhang Yongjiang

Author: Fang Zhengdong is a 2024 master's student at the School of Law, Xiangtan University

Editor: Fang Zhengdong

Editor-in-charge: Liu Daqing

Review: Wang Zhenhua

END

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