Constructing discourse system of Chinese rule of law-morality given priority over penalty
Comprehensive Governance with Rites-music and Punishment-governance in the Early Zhou Dynasty
Now, we comes to the part of the comprehensive governance with rites-music and punishment-governance in the early Zhou Dynasty. After the collapse of Shang Dynasty, there exist a remarkable politician and thinker named Duke of Zhou (image). He sums up the lesson of the Shang Dynasty and realizes that the demise of Shang, a great power, is due to its unpopularity rather than the national power or military strength. The last king of Shang Dynasty is King Zhou of Shang (Shang Zhou Wang)(image). King Zhou of Shang attaches great importance to the punishment and kills many innocent people. He leads a life of shameless dissipation without restraint, so he loses his people’s heart. The Shang Dynasty has a sizeable army. Today’s people often use an idiom “Ru Huo Ru Tu (like a fire or cogon grasses)” to describe a condition. And in ancient China, people use this idiom to describe Shang’s army. That is to say, all the soldiers of the army in red clothes is as spectacular as a raging fire; and if they all wear white clothes, they will look like a vast expanse of cogon grasses, which means the Shang Dynasty has a sizeable army. Why is Shang defeated by Zhou Dynasty in a short time? The reason is that the army changes side in the war. And the reason why the army choose to betray its ruler is that the ruler loses their hearts. People of the Shang Dynasty welcome the governance of Zhou and Shang demise in a sudden.
Duke of Zhou draws lessons from Shang’s failures and realize that a country should not has heavy punishment but to win the support of people by moral politics and advocate “noble morality and cautious punishment” (Ming De Shen Fa) in the beginning of its foundation. In a word, the ruler should advocate esteeming virtue, attaching importance to the main body function of the populace and implementing appropriate punishment. The claim is inherited by the pre-Qin Confucian School, and the “morality given priority over penalty” (De Zhu Xing Fu) of formal law thoughts in Western Han Dynasty is also evolved from it. Meanwhile, he devises a plan for national governance: the comprehensive governance with rites-music and punishment-governance. The plan provides an order of social classes and different class should obey corresponding ritual (Li), which is a kind of relationship of rights and obligations. It is required by ritual and ritual refers to an order of social classes. Different classes and different identities have his own ritual. There is another thing is important in national governance, that is “Music”. People attach great importance to the music in ancient Chin and Music is one of the Six Classics. Confucian School proposes the Six Classics (Liu Jing)(illustrating picture)- Poem(Shi), Book(Shu), Ritual(Li), Yi(Yi), Music(Yue), Spring and Autumn Period(Chun Qiu). Why can the Music be one of the Six Classics? Because music is in conjunction with ritual. Different social class has its own music. For example, King Zhou listens to the music specially played in royal or imperial court, the officials have the certain kinds of music and the ordinary people also has their own music. Music is in conjunction with ritual. It also has another function-seeking common ground. Music can make people positive, calm them down from confusion and let people seek common ground in a imperceptible way. Different social class has its own music. King Zhou formulate the ritual and compose music, which is appreciated by Confucius.
After formulating the ritual and making music, the ruler should establish a regime (Li Zheng) and formulate penalty system (Zhi Xing). The ruler of the regime established by Zhou Dynasty is King Zhou, the lower regime class is Qing Da Fu and then Shi. The structure of the regime is like a pyramid. The above-mentioned is “Zheng (regime)”. What is “Xing (punishment)”? Duke of Zhou formulated nine kinds of punishment. Please pay attention to this, the punishment is universal as law, in other words, is same with law. The nine kinds of punishment, includes the five kinds of corporal punishment “Mo(tattooing on the face), Yi(cut off one’s nose), Fei(cut one’s feet), Gong(castration ), Dapi (behead )” formulated in Xia and Shang Dynasty and the four kinds of punishment “Liu( exile), Shu( punishment redeeming system), Bian( caning), Pu” added in Zhou Dynasty. The new plan proposed by Duke of Zhou is rites-music and punishment-governance rather than only the punishment. The Book of Rites (Li Ji) concludes and explains this plan: “Using the ritual to lead the thoughts, the music to resonate with people, the regime to unify people’s behaviors and the punishment to prevent people from committing crimes.” The ultimate goal of rites-music and punishment-governance both is setting up a new way for national governance. The four way (rites-music and punishment-governance) are same as “Unifying the people and exploring a new way for national governance”. This is the principle of governing a country.
The plan for national governance was raised from more than 1000 BC. It showed the political wisdom and the rational legal thinking of the ancient Chinese sages. This idea of comprehensive governance has long been regarded as an effective strategy for statecraft and inherited by the generations. The idea “morality given priority over penalty”(De Zhu Xing Fa) put forward by Dong Zhongshu in the Han Dynasty and “morality and ritual is the root and punishment is for usage” (De Li Wei Ben, Zheng Jiao Wei Yong) in the Tang Dynasty and so on are related with comprehensive governance for the basic ways are the same, while methods may be different. Therefore, comprehensive governance has been passed down from the beginning to the end of the Zhou Dynasty, which has become the tradition of ancient Chinese law. Today, the governance of our country is also emphasizing the issue of comprehensive governance. Tracing the origin from the source, the rites-music and punishment-governance, a plan of national governance put forward by Duke of Zhou, gives us the earliest historical source.