Excellent Traditional Judicial Culture in China: The Source and Living Value of Building a New Judicial Culture | Judiciary | Culture
[Counselor's Office]
Author: Cui Yongdong
The excellent traditional Chinese culture has the contemporary values of emphasizing benevolence, valuing the people, upholding integrity, upholding justice, advocating harmony, and seeking great harmony. It is an important source of cultivating the core socialist values. Among them, values such as "emphasizing benevolence and love" are also fundamental elements of China's excellent traditional judicial culture. In the new era of comprehensive rule of law, we should objectively treat traditional judicial culture, strive to explore its positive factors, and provide useful references for judicial reform and the progress of judicial civilization.
In traditional Chinese judicial thought, Confucian judicial thought is its mainstream. The basic characteristics of Confucian judicial thought are "benevolence", "middle way", and "harmony", and "benevolence" represents the basic value orientation of Confucian judicial thought. "Ren Dao" is a way of loving others, advocating for love and respect for others, especially emphasizing respect for the value of life. It should be pointed out that the judicial system of the feudal era did not fully implement the Confucian spirit of "benevolence", but some specific judicial systems still reflected the pursuit of the value of "benevolence".
The Middle Way, also known as the Doctrine of the Mean, is an ideology and methodology that pursues moderation, opposes extremism, and emphasizes balance. The Doctrine of the Mean is also a way to achieve social harmony. The concept of "moderate punishment", "moderate punishment", or "moderate punishment" has a long history. The inscription on the Western Zhou bronze vessel "Mu Gui" contains a record of "no punishment without punishment", and there are more similar records in the "Book of Documents". It was this concept that influenced later Confucianism and transformed it into a judicial philosophy of the mean. In the field of justice, fairness is the core value. Only fair and balanced justice can promote social harmony, otherwise there will be a situation where Confucius said "if the punishment is not fair, the people will be at a loss", which may lead to social unrest and disharmony.
Confucianism does not oppose relying on national laws to resolve disputes, but does not advocate seeking legal action for a large number of ordinary disputes, as it would not only be uneconomical but also consume a large amount of national judicial resources. More importantly, this would worsen the relationship between the two parties and may lead to the formation of "world enmity", thereby affecting social stability in the long term. It is at this point that Confucius proposed the proposition of "no litigation". Non litigation does not mean avoiding all lawsuits. Major criminal cases still require the intervention of national judicial forces, but a large number of minor criminal cases or general civil cases can be resolved through mediation and other means, without entering the national judicial level. The subject of mediation is often a highly respected "local sage" in civil society, and the rules of mediation include social rules including moral rules. The "Fengqiao Experience" in contemporary China inherits and promotes the concepts of "no litigation" and "harmony", becoming a typical experience of grassroots social governance.
In traditional Chinese judicial culture, there is also a clear spirit of "education". According to the Confucian concept of "clarifying punishment and promoting education", the punishment recognized as an auxiliary to education is not a general punishment, but a punishment that reflects the Confucian moral spirit. The operation process of this punishment itself is a process of education. This kind of punishment is known as "clear punishment", only clear punishment can "teach".
Under the system of integrating administrative power and judicial power in ancient China, local administrators concurrently held judicial power. Moral education was not only their administrative responsibility, but also their judicial goal. As a result, judicial practice was accompanied by the function of "preaching", which is also known as "teaching in trial" or "teaching in judgment". The written judgments of ancient judges often combined moral admonitions with the threat of punishment, and this kind of judicial education supported by punishment has a more significant effect. In ancient times, judges regarded the court as a place for preaching, and the method of "integrating education into judgment" could indeed achieve the effect of "easy to understand for words, easy to understand for teaching", which is more deeply rooted in people's hearts than simple moral education classes.
The traditional Chinese judicial culture that values education has left us with some useful insights: firstly, criminal justice has both punitive and educational qualities, and educational qualities exist within punitive qualities; Secondly, a good judiciary must adhere to the principles of "benevolence" or "humanity" in order to exert positive educational functions; Thirdly, a good judge should integrate education into judgment, integrate reason and law into judicial trials, make judgments reasonable and legal, and thus play the educational and influential role of judicial trials, which is conducive to social harmony and stability.
In a word, as for Chinese traditional judicial culture, we should distinguish its essence from its dross, focus on exploring its excellent content, so that those elements with eternal value can still show their vitality in today's judicial practice, and make them the source of today's new judicial culture.
Guangming Daily
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