"Legal system" has existed in ancient China. In modern times, people's understanding and use of the concept of legal system are different.
First, the narrow sense of the legal system holds that the legal system is the legal system.In detail, it means that the social group that holds the power, according to its own willState powerEstablished laws and systems.
Second, the broad sense of the legal system refers to everythingsocial relationsThe principle and system of strictly and equally implementing and abiding by the law and acting in accordance with the law.
Thirdly, the legal system is a multi-level concept, which includes not only the legal system, but also a series of activities such as legal implementation and legal supervision.
Legal system is the general name of law and system.The ruling class manages state affairs in a legal and institutionalized way, and acts in strict accordance with the law. It is also a law and system established by the ruling class through state power according to its own will to maintain its own dictatorship.All countries have laws, but not legal systems.The content and form of legal system are different in different countries.staymonarchyThe word of the sovereign is the law of the state;staycapitalist countryAlthough the autocratic nature of the national legal system of slavery and feudalism is excluded, the bourgeoisie is limited by the nature of the class. When some legal provisions do not meet the interests of the class, they will be destroyed.Only a socialist country that completely eliminates the system of exploitation and realizes people's democracy can truly realize the socialist legal system.
2. It refers to the legal system in a dynamic sense, that is, legislation, law enforcementLaw-abidingAnd pairSupervision of law implementation, including legal publicity and education.
3. It refers to the principle of "handling affairs according to law".[1]
Citation explanation
1. Statutory system:
《Tube · Forbidden by law》: If the legal system is not discussed, the people will not be selfish.
ChineseJia YiThe New Book · The System is Uncertain: Benevolence, righteousness, and kindness are the main weapons of this man;Power and law are the weight and axe of a man.
He Xiu of Qing Dynasty wrote "Notes on Woodcutting Incense · Jun Jin Tie Yam": In the world of the Holy King, the law was developed and the power was strong and violent. Some of them were elected officials. How safe it was to use litigation?
2. The legal system established by the ruling class through the state power and the social order established according to these legal systems.Legal system has different forms and specific contents in different countries.
Prolific translator of Western works into classical ChineseYuan Qiang: "Since his officials, engineers, soldiers and businessmen are well prepared to observe the legal system, people will know their duties and do things without supervision. When things are well understood, they will not fail to take precautions."
Ba Jin"Writers should have courage, literature and art should have a legal system": "This shows that promoting democracy requires two aspects, one is courage, the other is a sound legal system."
Song DynastyFan Zhongyan"Strategies for Attacking and Defending in Shaanxi and Hebei": "We must send close officials to Bimi for strategy, so that we can set the legal system, and not lose it temporarily."
clearLi Yu"Casual Love, Poems and Songs, Pattern": "The old tunes have mixed rhymes, and the people who come in and go out are unpredictable. Because their legal system is not prepared, they have no rules to follow. It is not strange."
3. Chinese medicine academic language.That is, do the same.It refers to the processing of Chinese medicinal materials according to the traditional processing method of Chinese medicine (the method followed by the pharmaceutical industry).Generally, other auxiliary materials are added.Such as French Pinellia ternata, French lobster sauce, etc.
Rule of law and legal system
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Rule of law and legal system
rule by lawThere are both connections and differences with the legal system.The connection is that the implementation of the rule of law requires a complete legal system.The difference lies in: the legal system is relative to the political system and economic system, and the rule of law is relative to the rule of man;The connotation of the rule of law refers to the law and related systems. The connotation of the rule of law is relative to the theory, principles and methods of governing the country by people.The word "legal system" has different usages and meanings in ancient and modern China and foreign countries. It is usually used in two senses:
① It generally refers to national laws and systems.Laws include both written laws in the form of normative documents, such as the Constitution, laws and various regulations, and unwritten laws recognized by state organs, such as customary law and case law.System refers to various systems established according to law in political, economic, cultural and other aspects.The ancient Chinese laws and regulations also belong to this category.
② Specifically, it refers to a way for the ruling class to institutionalize and legalize state affairs in accordance with democratic principles and manage them strictly according to law.In this sense, the rule of law is closely linked with democratic politics, that is, democracy is the premise of the rule of law, and the rule of law is the embodiment and guarantee of democracy. Only a country that institutionalizes and legalizes democracy and strictly acts in accordance with the law to establish a normal legal order can be a real legal country.
It is said in ancient Chinese books that "there is a company in charge and the legal system should be established"《The Book of Rites·The "legal system" in the "Monthly Order" refers to the establishment of a model system so that people can follow it.ancientLegalistsThere is also the word "legal system" in the works."Guanzi · Legal Prohibition" wrote: "If the legal system is not discussed, the people will not be selfish".It was written in the Book of the Lord of the Shang Dynasty: "The people are born of evil and evil, so a legal system is established to measure and prohibit them.".Han Fei also said that "the rule of law should be clarified, and private benefits should be eliminated".All of these, although they link the "legal system" with governance according to law, are not legal systems linked with democratic politics.The "legal system" in ancient China is, in the final analysis, just a "king system".The legal system in the second sense linked with democratic politics is consistent with the connotation of "rule of law" advocated by bourgeois enlightenment thinkers in the 17th and 18th centuries.E.g. British philosopherJ. LockeHe believed that the government "should rule by the established laws officially announced. These laws are equal regardless of the rich and poor, the powerful and the farmers, and do not differ due to special circumstances."（《Two Essays on Government》）。American political commentator T. Paine (1737-1809) also said: "In an autocratic government, the king is the law, and in a free country, the law should be the king" (Common Sense).Its core idea is to govern the country according to law,Everyone is equal before the lawWe oppose any organization or individual to enjoy privileges beyond the law.This proposition has played a great role in opposing feudal autocratic privileges, establishing and maintaining bourgeois democracy, and has historical significance.However, the legal system thought of bourgeois thinkers has an obvious color of supremacy of law. In fact, it is impossible for capitalist countries to really implement the legal system.In order to pursue excess profits, exploit and oppress the proletariat and the working masses, they always combine legal and illegal means to rule (seecapitalistic legal system）。
The implementation of the rule of law must be based on the rule of law.Compared with the rule of law, the rule of law focuses on the use of law.However, if only for the purpose of law, the purpose of the rule of law is to provide a platform and framework for people to seek justice, but the essence of the rule of law still cannot shake off the belief that the regime is above the law.The rule of law means that those in power govern the country in accordance with the law, but these laws are not necessarily formulated by the legislature composed of ordinary citizens.Under the rule of law, the responsibility of the executive branch is only to enforce and be bound by such laws.Therefore, the biggest difference between the rule of law and the rule of law is not whether the law binds the people, but whether the administrative, legislative and judicial powers of the government are also constrained and controlled by the law like the people.The connotation of the rule of law is not so much to require all people to abide by the law as to focus more on the control and restraint of the law on government power, otherwise the rule of law is difficult to distinguish from the rule of law.For the common illegal or out of order phenomenon in society, especially the behavior of fighting for rights from the government by means of fierce and wandering on the edge of the law, government officials often call on and demand the people to "abide by the law" to respect the "rule of law".This is actually a misunderstanding and narrowing of the meaning of the rule of law into the rule of law.The result of the rule of law may be that the government suppresses the people in the form of law.
constitutionalismIt is a kind of idea and political practice that requires the exercise of all the powers of the government to be included in the track of the Constitution and restricted by the Constitution, so that the political operation can enter the ideal state of legalization.Rule of law is the core value of constitutionalism.On the contrary, it is impossible to realize constitutionalism under the rule of law.The rule of law is not directly linked to democracy.However, the extension of the concept of the rule of law providing a framework for seeking justice includes the recognition of basic human rights in legal theory, which also includesBill of RightsThe legal basis has been established.The rule of law has nothing to do with human rights.Therefore, in countries where there is only the rule of law but no rule of law, human rights and democracy cannot be guaranteed.
Rule of law and social system
socialist legal systemAndcapitalismThe legal system is different. It is a way of institutionalizing and legalizing socialist democracy, and managing the country strictly in accordance with the law.In a socialist country, it is possible and necessary to define the socialist democracy in the form of law, and make this system and law have stability, continuity and great authority, so that "there are laws to abide by, there are laws to abide by, law enforcement must be strict, and violations must be prosecuted." We should ensure that all citizens are equal before the law,No organization or individual is allowed to have privileges above the law.Legal system andlegal orderThe relationship is extremely close.Legal order is a kind of social order formed on the basis of strict compliance with the law. It must be based on the implementation of the legal system, and the establishment of legal order is an important embodiment of the implementation of the legal system.
Legal ideology
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Plato
1、 Theory of Justice and Theory of Rule by Man
（1） Just country and human typePlato's PhilosophyThe foundation is the distinction between idea and reality. In Plato's view, the world consists of "the world of ideas" and "the world of copies".The idea is spiritual and primary. Although it is invisible, it is the root of all things and the eternal real existence;The world of copying is tangible, false and changeable, which can only be regarded as the shadow of the world of ideas.Due to the different degrees of sharing ideas, people have three different natures of gold, silver, copper and iron, and people also have different types and qualities: gold → philosophers → intelligent silver → warriors → brave copper and iron → production workers → moderation. However, the quality of moderation should not only be owned by production workers, but also be the quality of all three people,Because a country must maintain harmony and coordination. Only when people do their jobs and keep their positions, can a country produce the virtue of "justice" and become a just country.When the three qualities (desire, passion and reason) of an individual coordinate and operate in order, the individual becomes a just person.This means that reason dominates desire and spirit dominates body;Therefore, in this sense, Plato's justice is a kind of moral justice.
（2） In Plato's view, the relationship between law and justice has two parts: "better" and "worse".If the better part prevails, control the "worse" part, and he will become his own master;If he receives bad education or is influenced by bad people, he will become "his own slave".When the malignant expansion, we have to obey the external authority, which is the law.For Plato, law is a social code of conduct, which is a sign of fairness and justice.However, legal justice and moral justice are not identical.Legal justice is "litigation justice", which refers to the consequences or judgments obtained through the normal operation of the legal machine.Therefore, legal justice serves moral justice.
（3） Plato believed that the king of philosophy ruled through knowledge, which was much superior to the rule of law, and the law was far inferior to the wisdom of philosophers.Because:
(1) Philosophers hold a kind of truth, which is much better than the laws formulated by the state organs;
(2) "The law is better than the law", but the law in reality does not necessarily reflect justice, and the bad law is not the real law;
(3) Law is rigid and fixed, while politics itself is flexible.Philosophers' knowledge can change according to circumstances;
(4) All societies need harmony, and only philosophers can achieve this goal through wisdom.
2、 Legal Theory: Legislation and Law abiding Thought
（1） In Plato's view, legislation is a process of "cleaning up", that is, the old system and people's quality must be cleaned up before new laws can be formulated.In legislation, the outline of the Constitution should be determined first, and then laws and regulations should be formulated.Plato attached great importance to the written law and believed that the custom was derived from the custom of ordinary people.
（2） The fundamental principle of the theory of legislative principles is to make laws according to the concept of justice, and should be based on the happiness of all people.As far as the focus of legislation is concerned, it focuses on cultivating citizens' legal spirit.
（3） Plato traces back the development of human society from a historical perspective and believes that the state was formed by contract.The core of the contract is toCompliance with lawsThis means that only the virtue of abiding by the law is in line with the nature of the country.
Plato believed that the rule of law was not coercive for citizens with will, but reflected the good wishes of the country.He believes: "If laws can lead to perfection or at least partially achieve this goal, we should implement these laws." The education of citizens should also guide them to implement and abide by laws;The law must have authority, the power of state officials must be constrained, and the so-called good law must be enforced by good officials.
3、 Main Evaluation of Plato's Legal Thought
First, the thought of rule of law is a tradition with a long history in the western legal tradition, which has far-reaching influence on the revival of western modern rule of law, and has becomeroman lawThe important ideological basis of;Second, it summarizesancient GreekThe essence of political philosophy: the best politics is difficult to achieve, but it is possible to prevent the worst politics, which is that the supreme law must be used to rule.Third, the research on "mixed regime" and the discussion on "decentralization principle" are praised by scholars asSeparation of powersPrototype of.Fourth, the collectivist methodology also created a precedent for later generations to study the state and legal theory in the unit of the collective. In Plato's idea, the individual is just a tool and means of the city-state, and has no independent existence value.
4、 Plato's Life and Works
Plato(427-347 BC), bornAthensA noble family.His parents are descendants of famous families, and his mother is a famous political reformerSolonDescendants of.Because of his noble birth, he has received a good education since he was young.Educated at the age of 20Socrates, engaged in philosophy study and research.For a time, Socrates was eager to make his mark in politics, but in 399 BC, Socrates was sentenced to death, which made him give up his desire to engage in politics.After exile, he returned to Athens at the age of 40 and founded the "Akademi Academy".In the school park, Plato gave lectures to cultivate talents;He wrote and preached his philosophy and political philosophy for 41 years.The school park has a history of 900 years and is the center of all Greek cultural knowledge.
Plato was the first thinker in European history to retain a complete book, with 25 dialogues written before and after.There are mainly three books on political and legal theories, namely, The Republic (completed in the prime of life), The Politician (completed in the middle and late years)《Law》(The last word).Generally speaking, the Republic represents his main ideal for politics and society, while the Law is a book about the rule of law written in the face of reality.
Aristotle
1、 On Legal Justice
（1） The connotation and classification of justice Aristotle believed that the city-state was based on justice, from which law was derived to judge the right and wrong of the world.Justice refers to a virtue produced by people in social relations.Justice and injustice have two meanings: one is whether to obey discipline;The second is whether a person should get what he has got.Justice can also be divided into "universal justice" and "individual justice".There are two kinds of "individual justice" - "distributive justice" and "average justice".The "justice of distribution" is to seek the equality of proportion. This justice starts from the inequality of people, which is naturally caused and is fixed.As for "average justice", it refers to the equal relationship between people.This kind of justice is based on the equivalence of people and makes mutual interests equal.
(II)On Legal JusticeThe extension of equality: equality and moderation
1. Equality.One is the equality of quantity, that is, the quantity and capacity of things obtained by each person are equal to those obtained by others;The second is equal ratio, that is, according to the actual value of each person, we should distribute the things that are equal to them in proportion.The distribution of political rights must be based on the contribution of people to the various elements of the city-state. Whoever has superior political morality and who has the most good behavior in the process of realizing a good life in the city-state should enjoy more benefits in the city-state.
2. Moderation.The so-called golden mean means that it is not biased or biased and lies in the middle of the two extremes.According to Aristotle, all human behaviors have three states of excess, inferiority and moderation, and only the moderation is the characteristic of virtue.The same is true for the society, which is divided into the extremely rich (who often show off their strength and boldness to commit crimes), the extremely poor (who are often lazy and easy to commit minor crimes) and the middle class.Only the middle class is the "best neutral arbiter" of the contradiction between the rich and the poor.Therefore, the middle class is most suitable to be rulers and legislators.
（3） The relationship between justice and law law is based on justice, which extends from justice to law.The principle of justice resides in substantive law.Freedom and justice lead tonatural lawAnd this became the basis for the state to formulate positive law.
2、 Definition, function and classification of law
（1） Definition of law Law is a political justice, a universally recognized fair and impartial weighing standard, a reflection of rationality, and a contractual contract.The characteristics of law include:
(1) Justice: law is the embodiment of justice, which is equal to all people, including rulers and ruled;
(2) Variability, the law allows change, of course, this change needs to be careful;
(3) Compliance is mandatory.Law is a specialSocial norms, is the code of conduct of people, and everyone must abide by it.
（2） About the role of law The role and purpose of law are all for the "good cause" of the city-state, for the "good virtue", and for the pursuit of“public welfare”To promote human morality.
（3） On the Classification of Laws
1. Natural law and statutory law.Natural law is the embodiment of human rationality, is based on justice, is a universal principle existing in society, and is a law reflecting the "order of natural existence";The positive law is formulated by people.Natural law is superior to statutory law;
2. Basic law and non basic law.In fact, the Basic Law is also the Constitution, which stipulates the form of governance of the country, the number of rulers and their generation methods, and the status of citizens in the city-state;
3. Good law and bad law.Allnormal polity The laws formulated under are good laws;Laws enacted under abnormal regimes are evil laws;
4. Statutory law and customary law.Customary lawGreek city-stateThe custom or etiquette that has existed for a long time.
3、 Theory of Rule of Law
（1） The meaning of rule of law includes two meanings: the established law is generally obeyed, and the law that everyone obeys should itself be well formulated.That is to say, the so-called rule of law is the combination of good law and law-abiding.
（2） Specific embodiment of the rule of law
1. Legislation: Aristotle emphasized that legislation must comply with the following principles: first, reflect the interests of the middle class;Second, study the situation of the country;Third, consider strengthening education for citizens, especially teenagers;The fourth is the combination of flexibility and stability.
2. Law enforcement thoughts.State officials should strictly enforce the law.If there are explicit provisions in the law, they shall be strictly implemented in accordance with the law;If there are different or no legal provisions, the case must be handled and adjudicated fairly in accordance with the principles of law.
3. Law abiding thought.Compliance with the law is the key to the rule of law.The State must strengthen the cultivation and training of citizens' concept of law-abiding
（3） The superiority of the rule of law is relative to the rule of man, and this superiority is mainly reflected in:
First, law is the product of collective wisdom and careful consideration;
Second, the law has no feelings, will not be biased, and has fairness;
Third, the law can not speak, can not be as careless as people;
Fourth, the law has clarity by virtue of normative forms;
Fifth, the implementation of the rule of man tends to delay national affairs, especially the hereditary system;
Sixth, the era requires the rule of law, not the rule of man;
Seventh, it is difficult to implement the rule of one person, and the monarch's ability and energy are limited after all;
Eighth, the rule of one person deprives everyone of the right to take turns in power.
（4） The remedy for the defects of the rule of law can take three remedial measures where the law is inferior: the power of individuals or the power of a number of people jointly "as a subsidy";Make appropriate changes to some imperfect laws;strengthenLegal interpretation。It mainly refers to the spirit of law (meaning of law) to make a fair deal and verdict on the case.
4、 The Characteristics of Aristotle's Legal Thought
First, like Plato, they explore the ideal political way of life from the perspective of ethics, thus creating the theoretical tradition of western philosophy of lawHegelOf《Principles of Legal Philosophy》Has been fully realized;
Second, combine law and politics to studySociology of LawOr the discipline structure of political law has laid the basic prototype;
Third, it has distinctive characteristics of realism. The foothold of analyzing problems is to investigate the reality, and the method used is mainly induction, that is, through analysis, comparison, and then draw conclusions.
Therefore, it is said that Plato gave more passion and ideals to later generations, while Aristotle left behind a more mature system and logic;[1] Fourthly, it is of great significance to respect the spirit of the rule of law for the establishment of mature western theory of the rule of law.
5、 Aristotle's Life and Works
Aristotle(384~322 BC), a great thinker in the style of ancient Greek encyclopedia, once learned from Plato.His representative works are Political Science and Athenian Political System (one of the summaries of the study of the political systems of the city states in 158 countries). In addition, Ethics also contains a large number of legal thought materials.domesticMiao LitianEdited by professor《The Works of Aristotle 》There are as many as ten volumes.
To sum up, some people overemphasize the role of "people" in it, which is purely confusing the concept.We discuss the difference between the rule of man and the rule of law, which means that the most fundamental difference between the two lies in the fact that the objective carrier basis of the actual operation is different.Instead of discussing what the subject of the event is.The reason why the rule of law is stronger than the rule of man is precisely because the connotation of the rule of law is based on objective facts that are easy to verify.Take transparent program as the carrier.It is restricted by the supervision of stakeholders.Others say that if the "leadership" does not allow it - that is, if it is not the rule of man, where will the rule of law come from?This is a deeper problem. It is the different "behavior result" of autocratic system and democratic system.Under the autocratic system, the "leader" is the "master".In a democratic system, "leaders" are "servants".In other words, to explore this issue, we should first define a field: autocratic system or democratic system.But what we often use is "democratic system", and those with ulterior motives or logic confusion are deliberately or unintentionally confusing these two fields.
