Світоглядні основи права Стародавнього Китаю
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Date
2019
Authors
Заєць, Анатолій
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Abstract
Статтю присвячено висвітленню світоглядних основ права Стародавнього Китаю періоду розпаду первісного ладу і формування ранніх міст-держав (VII–II ст. до Р.Х.). Досліджено перші космологічні уявлення про певну єдність законів Неба, Землі і Людини, які становили першооснову світогляду, моральне і релігійно-міфічне підґрунтя суспільного і державного устрою, а також філософські вчення цього періоду, які справили важливий вплив не тільки на чинне на той час законодавство Китаю, а й на всю стародавню філософію Японії, Кореї, В’єтнаму та Тайваню, а саме: даосизм, конфуціанство, мої́зм, легізм, школа "інь-ян", номіналізм. Розкрито процеси трансформації звичаєвого права, поступового підвищення ролі закону в китайському суспільстві, протиборство конфуціанства і легізму на тлі формування централізованої держави, а також особливості правового становища особи; наведено стислу характеристику права.
The history of China originates from the 5th millennium B.C. Written sources relating to the beginning of the period of the seven strongest states "Chuntsu" (Spring and Autumn period) originated in the 7th century B.C. The first elements of the philosophical teachings of China originated in the 5th century B.C., the most significant being Taoism, Confucianism, Mohism, Legalism, the School of In-Yang, and Nominalism. The thorough analysis of the abovementioned teachings provides an insight into a contemptuous attitude to the law as a means of regulating social relations and conflict resolution, as well as the faith in the harmony of human relationships and justice, and the need for a search for consensus and agreement. These teachings demonstrate a vivid confrontation between the humanist (Confucian and partly the doctrine of Mohism) and anti-humanistic (Legalist) doctrine, morality and law. It was also common to the European tradition. They had significant influence on the nature of ancient Chinese law, although it was also based on customary law, as well as on the traditions of Eastern despotism, which held the sacramentality of the ruler’s figure (him and his power, as well as the laws that emanated from him, deified), the political arbitrariness, qualitatively different from the European view of the relationship between the state and the individual on the basis of blind submission, the absolute dominance of the state over society, the lack of democratic traditions of the formation of state authorities and governance, the lack of controlling authorities based directly on force, and the lack of guarantees of individual rights as its grounding features. The ancient Chinese law of the period had a very obscure caste character. The status of a person depended on the social situation this person was in, and not on his/her origin. Therefore, the linchpin here was occupied by the representatives of the ruling dynasty, as well as representatives of the state power apparatus, whose status was derived from the ruler. The second grade was occupied by regular persons (scientists, landowners, artisans, and merchants) who entirely depended on the will of the ruler and his officials. As for certain categories of persons, the extent of their eligibility was different. The following categories were personally free (Lyangen, Zhuzhen, Pingmin) and personally unfriendly, “Underworld” (Jian-jen), in addition to landowners and tenants. There also existed different statuses of father and son, spouses, separate categories of children, age categories of persons in criminal law (in particular, persons under 10 and over 80 were not held liable). The law was also featured by collective responsibility for committing crimes (the perpetrators of the crime could be punished by relatives of the offender to the third degree), a combination of functions of administration and justice (the ruler belonged to the supreme judicial authority), as well as extremely cruel sanctions for committing crimes. Court proceedings had an inquisitive character, where the person completely depended on the discretion of the authorities. Civil-law relations had the features of the lack of economic freedom and the existence of contractual relations in a rather limited framework not accompanied by clear legal guarantees.
The history of China originates from the 5th millennium B.C. Written sources relating to the beginning of the period of the seven strongest states "Chuntsu" (Spring and Autumn period) originated in the 7th century B.C. The first elements of the philosophical teachings of China originated in the 5th century B.C., the most significant being Taoism, Confucianism, Mohism, Legalism, the School of In-Yang, and Nominalism. The thorough analysis of the abovementioned teachings provides an insight into a contemptuous attitude to the law as a means of regulating social relations and conflict resolution, as well as the faith in the harmony of human relationships and justice, and the need for a search for consensus and agreement. These teachings demonstrate a vivid confrontation between the humanist (Confucian and partly the doctrine of Mohism) and anti-humanistic (Legalist) doctrine, morality and law. It was also common to the European tradition. They had significant influence on the nature of ancient Chinese law, although it was also based on customary law, as well as on the traditions of Eastern despotism, which held the sacramentality of the ruler’s figure (him and his power, as well as the laws that emanated from him, deified), the political arbitrariness, qualitatively different from the European view of the relationship between the state and the individual on the basis of blind submission, the absolute dominance of the state over society, the lack of democratic traditions of the formation of state authorities and governance, the lack of controlling authorities based directly on force, and the lack of guarantees of individual rights as its grounding features. The ancient Chinese law of the period had a very obscure caste character. The status of a person depended on the social situation this person was in, and not on his/her origin. Therefore, the linchpin here was occupied by the representatives of the ruling dynasty, as well as representatives of the state power apparatus, whose status was derived from the ruler. The second grade was occupied by regular persons (scientists, landowners, artisans, and merchants) who entirely depended on the will of the ruler and his officials. As for certain categories of persons, the extent of their eligibility was different. The following categories were personally free (Lyangen, Zhuzhen, Pingmin) and personally unfriendly, “Underworld” (Jian-jen), in addition to landowners and tenants. There also existed different statuses of father and son, spouses, separate categories of children, age categories of persons in criminal law (in particular, persons under 10 and over 80 were not held liable). The law was also featured by collective responsibility for committing crimes (the perpetrators of the crime could be punished by relatives of the offender to the third degree), a combination of functions of administration and justice (the ruler belonged to the supreme judicial authority), as well as extremely cruel sanctions for committing crimes. Court proceedings had an inquisitive character, where the person completely depended on the discretion of the authorities. Civil-law relations had the features of the lack of economic freedom and the existence of contractual relations in a rather limited framework not accompanied by clear legal guarantees.
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Keywords
Стародавній Китай, космологічні і світоглядні вчення, конфуціанство, легізм, моїзм, звичаєве право і закон, правове становище особи, стаття, Ancient China, cosmological and philosophical teachings, Confucian, Legalism, Mohism, customary law and law, legal status of a person
Citation
Заєць А. П. Світоглядні основи права Стародавнього Китаю / Заєць А. П. // Наукові записки НаУКМА. Юридичні науки. - 2019. - Т. 3. - С. 55-62.