Legalists' thought of rule of law in the pre-Qin period is the product of great social changes that adapt to the contention of a hundred schools of thought, and it is unique in the contention of a hundred schools of thought. During the Spring and Autumn Period, Legalists had not yet become an independent school, and the idea of rule of law was still in its infancy. At that time, Guan Zhong and Zi Chan both attached importance to the rule of law and were pioneers of legalist thought. During the Warring States period, Legalism was formally formed. Shang Yang was the founder of Legalism, and Han Fei was the master of Legalism. From Guan Zhong's proposal of "ruling the country according to law" to Shang Yang's emphasis on "ruling the country by law", and then to Han Fei's combination of "magic potential" to construct the theory of rule of law, the legalists' thought of rule of law in the pre-Qin period experienced an evolutionary process from germination to development and then to maturity. This paper attempts to reveal this evolution process by analyzing the thought of rule of law in Guanzi, Shang Jun Shu and Han Feizi. First, the idea of "ruling the country according to law" in Guanzi-the germination of the idea of rule of law Guan Zhong was an outstanding thinker and politician in the Spring and Autumn Period. Although he was not a representative figure of pre-Qin Legalists, he put forward the concept of "ruling the country according to law" for the first time in the history of China, which was also the initial bud of the rule of law in the pre-Qin period. The language of "ruling the country according to law" first published "Guanzi Faming": "There is no mistake in power, no law, and the rule of law is just a trick." This means that a ruler does not need to establish his authority on more basis when governing a country. As long as he governs a country under the rule of law, he will govern a country as easily as a man. 1. Interpretation of Guanzi "Guanzi Situation Solution" says: "Instrument is the key to everything. Laws and regulations are tools for all people. " "The Seven Methods of Guanzi" also said: "It is called" Fa "because it is full of inches, ropes, ink, rules, balance stones, fights and welcomes." These two paragraphs in Guanzi accurately explain the concept of "law" and point out that "law" is an objective standard to measure people's words and deeds, merits and demerits, a code of conduct that people all over the world should abide by, and a fundamental guarantee to ensure the stable and smooth development of the country. This is Guanzi's great contribution to China's ancient thought of rule of law. 2. The concept of "ruling the country according to law" is based on the understanding of the law. Guan Zi On Law says: "Therefore, law is the supreme way in the world, and the trip of saints is also", "Law is impermanent, law is illegal, and parents of the people are also". Guanzi emphasizes that law is the highest way and the foundation of governing the country. Without this, the people will have no sense of security, the country will have no order, the people will not, and the country will not be a country. It can be seen that Guanzi has raised "ruling the country according to law" to a concept of governing the country. Moreover, Guanzi has repeatedly mentioned in different chapters, and repeatedly warned you to govern the country with "law" as the mainstay. "Guan Zi Ren Fa" said: "A capable person can make rules, but he can't abolish them and correct Fiona Fang; Although saints can legislate, they cannot abolish the law to build the country. Therefore, although there is a wise and noble move, it is a waste of rules and is correct, Fiona Fang. " Faming also teaches the current rulers with the example of the former king: "The former king ruled the country without lewdness outside the law and did not benefit from the law." Even, in order to "rule the country according to law", Guan Zi Lun Fa also requires rulers to set an example and take the lead in obeying the law: "If the law is not enforced, those who modify the order will not be sentenced; If you don't do it, you will be rewarded and punished lightly; If you don't do it, you will be rewarded and punished. If you believe and don't do it, you don't set an example. So Japan: Prohibition is better than body. " However, in the soil of China's traditional legal culture, it is doomed that it is impossible to produce the "rule of law" that Aristotle said more than two thousand years ago, but the "rule of law" with China characteristics, and only the "people" as rulers can "govern the country" instrumentally. This understanding laid the foundation of legalists' understanding of "ruling the country according to law" 24 years later. At the same time, while advocating "ruling the country according to law", Guan Zhong also attached great importance to morality and propriety. Guan Zhong called propriety, righteousness, honesty and shame the "four dimensions" of a country, and thought that "if the four dimensions are not opened, the country will perish" (Guan Zi herder). Guan Zhong never denied the function of courtesy. On some occasions, he still regards ceremony as a top priority, but when he preaches the function of law, he undoubtedly unconsciously reduces the function of ceremony. 3. "The law comes from the monarch and the law is the Tao", which is the concept embodied in the legislation of Guanzi. Although Guan Zhong believes that "all the monarch and ministers obey the law" (Guan Zi Ren Fa), he also advocates that the law comes from the monarch, and only the monarch has the legislative power, and the people are only the objects of the law, which are distinguished by nobility and inferiority. And "the constitutional legal system must be legal? This is a classic of the people (Guan Zi Fa Fa). Although the monarch has legislative power, he cannot legislate at will, but should take Tao as the law. This requires: it must be "rooted in the spirit of heaven and earth, the sum of cold and heat, the nature of water and soil, and the creatures of people, birds, animals and grass" ("Guan Fa"), that is, it must pay attention to conforming to the "natural law", that is, it must proceed from the likes and dislikes of the people and must "measure the strength of the people", and it must not force people to do things beyond their power and put forward too many demands and desires for the people. Therefore, they say, "If people do what they can, they will do it, and if they do what they can, they will succeed" (Guan Zi Situational Solution). On the other hand, "If people do what they can, they will be abolished, and if they do what they can, they will fail" (ibid.). Legislation must be unified, serious and relatively stable. If "the monarch sets his instrument but varies, there will be many people who set their own private affairs by multiplying the law" (Guan Zi Fa Ban). Although laws and regulations must meet the requirements of the times. "Change at any time, move according to the customs" ("Guanzi Politics"), but it can't be changed overnight. 4. "Orders must be clear and rewards and punishments must be kept secret." This is the idea carried out in the practice of Guanzi. Based on the theory of human nature, Guanzi believes that the key is to be good at using rewards and punishments: in order to make laws and regulations the standard of rewards and punishments, the contents of laws and regulations must be clear and made public, so that people can follow them, that is, the so-called "orders must be clear." After the promulgation of the law, people will be punished if they are rewarded, and they will be required to "see the inevitable politics and win the punishment" ("Guanzi Seven Giants and Seven Masters"), so that "people will do what they know, and people will go when they know" (ibid.). Oppose the "private interpretation law" of the monarch and his subjects, especially the monarch (Guan). Guan Zhong believes that the evil that hinders the implementation of laws and regulations is that law enforcers engage in private affairs, and whether private affairs can be eliminated depends on the monarch. The monarch himself is required to set an example, "legislation is autonomy, legislation is self-correction" (Guanzi Law). It advocates "heavy punishment" and "respecting the monarch", but Guanzi does not absolutize the role of reward and punishment, especially punishment. Guan Zi, under the minister, said: "The reason why a monarch is a monarch is to reward and punish him. Reward is punishment, and punishment is abuse. Money is abused, so it is lost. " He also said that "killing people for no reason, paying more attention to expropriation, exhausting people's wealth, making urgent orders, and exhausting people's strength" will inevitably lead to the end of "learning from the past, becoming more and more chaotic." Therefore, Guanzi believes that "any way to govern the country must first enrich the people." People who are rich are easy to govern, while people who are poor are difficult to treat "(Guanzi Governing the Country). This thought originated from Guan Zhong's "granary knows etiquette, food and clothing know honor and disgrace" (Guanzi herder), and was obviously influenced by Confucianism's "enriching the people" and Taoism's "inaction" thought. Guanzi put forward the idea of "ruling the country according to law" for the first time on the basis of systematic understanding of law, and promoted it to a concept of governing the country. He believes that the king should "govern the country according to law and pay equal attention to law and discipline" when governing the country, which fully embodies his thought of giving consideration to etiquette and law. In terms of legislation and law enforcement, Guanzi put forward the idea of ensuring the popularization of laws by clarifying the contents of laws, enriching the people and setting an example by the monarch, which has important reference significance. However, the concept of "ruling the country according to law" was put forward on the issue of monarchies other than Ming monarchies and ministers, so the concept of "ruling the country according to law" in Guanzi is the product of autocratic monarchy. Second, the implementation of the concept of "rule of law" in Shang Jun's The Development of Rule of Law. As the main representative of pre-Qin legalists, Shang Yang's thought of rule of law has been fully reflected in Shang Jun Shu. Shang Yang attached importance to the law and was the founder of legalist thought of rule of law. Shang Jun emphasized the importance and application of law on the basis of the systematic idea of "ruling the country according to law" put forward by Guanzi. 1. Understanding of law in Shang Jun: Guanzi's understanding of law is mainly reflected in the characteristics and functions of law, while Shang Jun discusses the origin of law in more detail. Shang Yang believes that law does not always exist, but is the product of the development of human history to a certain stage. He said in the article "Kaisai": In ancient times, "people knew their mother but not their father". At this time, there was neither a country nor a law. "Rule of law without punishment". Later, the population grew more and more, and the people argued and struggled in chaos. In order to avoid competition and chaos, it is necessary to "divide", "ban", "establish officials" and "establish kings", so countries and laws appear. The so-called "division" refers to "the division of land, goods and men and women", which mainly refers to the property ownership based on private ownership of land. In other words, the law is produced to determine and protect property ownership, which is called the legal origin theory of "fixed-point dispute". 2. The concept of governing the country in Shang Jun-governing the country according to law is different from Guan Zhong's "governing the country by virtue and courtesy". Shang Yang advocated "ruling the country by law" and fundamentally denied the role of moral education. Shang Yang believes that it is human nature to "love the good and hate the harm": "People run away when they are hungry, Suo Le when they are bitter, and glory when they are humiliated, and this people's feelings are also good." ("Shang Jun's Law of Eliminating Mistakes") It is precisely "People are born with likes and dislikes, so can the people be cured?" My wife loves nobles and hates punishment, and gentlemen make them serve the people and do whatever they want. "So, we can't use the so-called benevolence, morality and enlightenment to govern the country, and we can only implement the rule of law. At the same time, Shang Yang demonstrated the necessity of implementing the rule of law from the perspectives of rewarding farming, enriching Qiang Bing and people's nature of "loving stakeholders". Shang Yang believes that the most important thing is that you mainly attach importance to, carry out and reward agricultural warfare. " The country prospered because of the agricultural war ","The country waited for the agricultural war to be safe, and the Lord stumbled because of the agricultural war "(Shang Jun Shu Agricultural War). To achieve this goal, the most effective way is the rule of law with rewards and punishments as the main content, and reward those who have made meritorious deeds in agricultural war. 3. Shang Yang's thought that punishment is unimportant is the most wonderful part of his legal thought. Shang Yang opposed the Confucian argument that "punishment is not a doctor" and formally put forward the view that "punishment has no hierarchy" for the first time. He believes that the law must be obeyed, and it is not enough for ordinary people to obey the law. He said: "The so-called' one penalty' is not graded. From Qing Xiang, generals to doctors and Shu Ren, people disobeyed the king's orders, violated the state's ban and committed unforgivable crimes. The former has merits and demerits, while the latter has defeats, which is not a penalty; Fortunately, in the front, it is too late to lose. Loyal ministers and dutiful sons have had them, and they will be broken by them. Those who abide by the law and keep their duties, those who cannot practice the king's law, are sentenced to death and sentenced to three families. " ("Shang Jun Shu Rewards Punishment") That is, whoever breaks the law and commits a crime should be punished according to law, aiming at the old aristocrats. This is a direct denial of the thought that "a doctor can't be punished and Shu Ren can't be blamed" since Shang and Zhou Dynasties. As Sima Qian summarized: "Don't be intimate, don't be extremely noble and divorced from the law. "It's nice to kiss and respect. ("Historical Records, Biography of Taishigong") 4. " Punish the law severely and punish the people with punishment. "Shang Yang not only attaches importance to the rule of law, but also believes that the laws used by the monarch to govern the people must be strict. He said in the article "Kai Sai" quoted above: "There are more people who benefit the world than governance, and the governance of Mokang lies in establishing a monarch. The way to establish a monarch is not wide enough to win the law and win the law, so don't rush to rape; The root cause of rape is deeper than severe punishment. "That is to say, in order to make the world stable and benefit the people, in the final analysis, the most effective way is to establish a monarch and control the people with harsh laws. Shang Jun regards law as the foundation of governing the country, attaches importance to the direction of "reform" and regards law as the basic means to promote social change, which leads to the sharp opposition between law and etiquette. Moreover, in order to achieve the goal of making Qiang Bing a rich country, Shang Yang believed that the implementation of the law must be the basis, but he attributed the reason why the law could not be implemented to "light punishment", so he put forward the idea of "heavy punishment". Shang yang believes. Severe punishment is the source of strength and the basis of banning rape and stopping evil, which can lead to "no punishment" He advocates "no punishment" through heavy punishment, which is his highest ideal of rule of law. Third, the construction of the ideological system of rule of law in Han Feizi-the maturity of the ideological system of rule of law. When Han Fei arrived in Qin, it was about 123 years before the Shang Yang Reform in Qin Xiaogong. While retaining Shang Yang's important theory of "rule of law", Han Fei systematically analyzed the way of governing the country and paid more attention to how to ensure "rule of law" 1. Han Fei's Understanding of Law Han Fei studied what law is and why there are problems in the world on the basis of the achievements of legalists such as Guan Zhong, Shang Yang and Shen Buhai. " The atlas compiled by dharma is located in the government, but distributed to the people? Therefore, the law is as obvious as it is "; ("Han Feizi Nansan") "Law, the constitutional order of politics, rewards and punishments must be in the hearts of the people, rewards and deposits depend on careful law, and punishment is imposed on rape orders." This is Han Fei's brief definition of law, and it also points out some basic characteristics of law: first, the law should be a written law made public; Second, the law is formulated or recognized by the state; Third, the law is backed by the state's coercive power. It is basically consistent with our current understanding of the basic characteristics of law. Like Shang Yang, he also thinks that law is the product of the development of human history to a certain stage, getting rid of the shackles of the divine right of destiny, and trying to explore the origin of law from within the society and in close contact with material living conditions. 2. Taking the monarch as the main factor, the magic potential combined with Han Fei inherited some of Shang Yang's thoughts on the rule of law, such as exaggerating the role of law unilaterally, ruling the country only by law, not by benevolence, morality and heavy punishment. However, as a master of legalist thoughts in the pre-Qin period, Han Fei "collected the strengths of the three schools, took the monarch as the body, took the law as the body, re-emphasized the inaction of Huang Lao, and created the most complete legalist ideological system". [6500.605] Han Fei criticized and absorbed the pre-legalist thoughts, pointing out that although Shang Yang, Shen Buhai and Shen Dao put forward "the law" from different angles, Although the country is rich and the country is strong, "if you don't know the treacherous court official, you will only rely on its financial strength to be a minister" (ibid.), so "if you win, you will respect the minister, if you benefit, you will fief the land, and the Lord will not know the treacherous court official" (ibid.). Because he was not good at politics, the monarch was not benefited, his power was excluded, and he failed to realize the rule of the emperor; Shen Buhai's rule of Korea is "learning the law without skill", and "not being good at the law and not obeying its constitutional order is even more treacherous" (ibid.). Although the art is used in the world, the law is not diligent in the official, so South Korea cannot monopolize it. In Han Fei's view, only by adhering to the principle of law and achieving the organic unity of "upholding the law", "handling the situation" and "acting" can we know the way of governing the country. "Method" and "technique" are the 26 most important tools for people to govern their subjects, and "potential" is the premise of using them, and they are indispensable. That is: "People's major events are illegal, but art is also illegal"; People in power will win the capital of many people "(everything is done by Han Feizi); He also said: "If you don't have the skills, you will harm the upper class. If you don't have the skills, you will be in chaos. This is indispensable, and all emperors have their own tools "(Nan San, Han Feizi). At the same time, Han Fei also believes that to perform magic, it is necessary to occupy a powerful position. "The Lord of a thousand riders, the king of a thousand riders, governs the world with power and levies princes" (Han Feizi, the Lord of man), without which the rule of law cannot be carried out. The relationship between the rule of law and power is "rule by law, rule by law" (Han Feizi Dilemma). Han Fei clearly put forward the combination of "law", "technique" and "potential" to form a complete theory of the rule of law, and constructed an ideological system of the rule of law that "the monarch is the mainstay and the law, technique and potential complement each other". Spells are the tools of emperors, and all three are legal means to achieve the goal of the monarch. Han Fei's thought of rule of law has been in parallel with monarchy from the beginning. His view of rule of law not only did not restrict autocracy, but strengthened, consolidated and served autocracy. Han Fei's thought system of rule of law shows strong characteristics of power rule. It can be seen that Han Fei's ideological system has gone beyond the demonstration of the importance of the rule of law on the basis of synthesizing the thoughts of previous legalists. Under the condition of fully affirming this premise, he took the development of legalist thought a step further, formed a complete theory of rule of law around how to ensure the implementation of the law, and made legalist thought of rule of law mature. From Guan Zhong's proposal of "ruling the country by law" to Shang Yang's emphasis on "law" and his efforts to "rule the country by law" in order to achieve the goal of enriching Qiang Bing, and then to Han Fei's construction of a "law-potential integration" rule of law system, "rule of law" became the slogan of legalists, and then became the core of his rule of law thought. In the understanding of law, it is more comprehensive and accurate, including the definition, function and role, characteristics, origin and essence of law. In the strategy of governing the country, from the initial emphasis on the function and role of law, but not abandoning the moral ceremony, to the complete denial of the role of moral ceremony, only advocating "governing the country according to law", which shows that the understanding of the strategy of governing the country by legalists such as Shang Yang and Han Fei has undergone a qualitative change, unilaterally emphasizing the role of law and advocating the omnipotence of law, which is undoubtedly of great significance for establishing legal authority and promoting the construction of the rule of law. In terms of legislation, Guanzi recognizes the monarch's legislative power and some principles that should be followed when making laws. Shang Yang further put forward the idea of "punishment without hierarchy". Although it has positive significance in theory, it has become a blank check that can hardly be cashed in reality. In the aspect of law enforcement, Guanzi put forward the idea of ensuring that the law is deeply rooted in the hearts of the people by clarifying the content of the law, enriching the people and setting an example by the monarch, which has important reference significance. Later, legalists represented by Shang Yang and Han Fei denied the role of moral education. Coupled with the influence of the theory of evil nature, they advocated heavy punishment, which made Guan Zhong's efforts to enrich the people and set an example for the monarch to rule by virtue go up in smoke, and regarded heavy punishment as the supreme magic weapon to ensure the implementation of laws and regulations, which was undoubtedly a retrogression in the history of the development of the rule of law. However, on the basis of concentrating the thoughts of the previous generation of legalists, Han Fei was unique and created an ideological system combining magic and potential, which pushed the legalists' research on the rule of law to a climax, which meant that the legalists' thoughts on the rule of law had matured. Legalists' thought of rule of law did play an important role in the historical process of Qin's unification of China, but legalists' "ruling the country according to law" is far from the true spirit of rule of law in any case, and has never left the pattern of "ruling the country according to law" under absolute monarchy. Taking Guanzi, Shang Jun Shu and Han Feizi as representatives, this paper expounds the legalist thought of rule of law embodied in them and shows the evolution process of legalist thought of rule of law in the pre-Qin period. In fact, among many pre-Qin legalists, Li Kui, Shen Buhai, Shen Dao and other pre-and post-Qin legalists have made many expositions on the issue of "rule of law" and put forward rich thoughts on the rule of law, which also had a far-reaching impact on later generations. Limited to space, I won't discuss it here. [Resources] [1] Biography of Xiao Gong. History of China's political thought [M]. Shijiazhuang: Hebei Education Press, 1999.438+095.