【李競一包養網心得恒】試論周禮與習慣法

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Trial Weekly and Concerning Law

Author: Li Yongheng (Doctor of History, Sichuan Master Fan Dazhong Discussion on Bashu Civilization Research)

Source: Author Authorized by Confucian Network Published

            Original from “Tianfu New Review” No. 6, 2017

Time: Confucius was in the 2568th year of Dingyou Xuanyue Day 20th day of Jihai

           Jesus November 8, 2017

Abstract:Zhou Rong is an unwritten practice. The main body is based on the traditional Zhou people’s modern customs and the department accepted the Xia and Shang practices. These unwritten habits regulate various details of the Zhou people’s politics, economy, civilization, career, etc. Some activities such as the underground buying and selling, judicial precepts, etc. reflected in the articles of the green copperware are specific examples of the Zhou people’s habits. In some cases, the King of Zhou would record personnel in charge of a specific judicial activity, but it is more common that outside the king’s official, the leader of various famous people conducts arbitration according to the practice laws, or may be explained by the parties according to the customs. In addition, the Zhou people expressed respect for the habits of other ethnic groups, which is what they call “the righteous people do not seek to change the customs”. The different ethnic groups such as the Song Dynasty, the Yin people, and the Huaiyi also ruled themselves based on their traditional habits.

Keywords: Zhou Fu, habitual law, customary law, unwritten law, autonomy

1. The ancient gifts of the three dynasties were used as habitual law

Many scholars pointed out that the ancient gifts of the three dynasties had the nature of habitual law. Teacher Liang Qichao talked about the unwritten statutes of the United Kingdom and pointed out: “For those who have no written beliefs, customs and justice in habits, Confucianism calls it “Greetings”[1]”; Teacher Du Weiming believed in the interview: “This gift is used in the current British and American arts to be practiced[2]”, “Seriously speaking, gifts are a large part of the customs that are equivalent to Britain and the United States[3]”; Teacher Li Zehou proposed: “The so-called Zhou Fu ’, its characteristic is that the original gifts focused on worshiping the gods (ancestors) were reformed and produced, systematically and expanded, and became a complete set of customary laws (‘court system’) [4]”; Teacher Li Shan believed that the country’s punishment and punishment tripod was abandoned by Chen’s unwritten habits[5]; Teacher Du Zhengjie also talked that the “gift” in the feudal city-state era was the law, and the opposite of it was the laws of later generations’ laws [6]. Other, american scholar Ungel (R.M.Unger) has also stated that “the concept of ‘gift’ is sufficient to reflect the meaning of law in Chinese feudal society.” The most amazing feature of feudal law is that it exclusively trusts habits without knowing what the written code is [7].

The definition of habit law in Byzantine Justinian’s “Summary of Law” is: “Unwritten law is a decree that is established because of the criticism of Chen’s habits that people use to enhance their meaning” [8]. In Chinese history, habit law has long been a “common example”, “country example”, “country rules”, “local example” and other situations [9], which are highly based on the cooperation with customs and customs. There was a “gift” during the third generation period, and the gift originated from the customs of tribes and clans. “The customs of tribes and clans are the natural rule formed by tribe members in their long-term cooperation careers” [10].

The ancient ceremony of the Xia, Shang and Zhou dynasties is exactly this kind of unwritten norms and practices formed by the customs of Chen’s customs, and is formed by the practices formed by the long-term historical evolution. The “gifts” of the three generations covered all aspects of the political, religious and customs of the times, and had detailed specifications on various aspects such as life, old age, illness, and death to customer confessions, marriage, property purchase and sale, and social affairs. There were even gifts in “bearing feelings killing people”[11]. Teacher Cheng Shude pointed out: “There are eight-percent laws and three-pardon systems, and the system of three forgiveness and three-pardonism is included in the gifts.” The gifts of the three generations are covered in a wide range, and many judicial fields can be included in the gifts [12]. The gifts were divided in later generations, designed and distributed by the states. It was based on the habits and customs that arise in the long history, and was compiled and compiled.

There were no written codes during the Three Dynasties. The text was mostly used in religious memorial fields during the Yin and Zhou dynasties. David N. Keightley believed that the blue copper script and oracle bone divination were not for human viewing, or at most not for everyone. Their predestined readers were the ancestor gods in heaven [13]. There were essays in bronze inscriptions of the Zhou Dynasty that were exposed to judicial activities, but there was no written law during this period. The essays that recorded precedents were built on a blue copper instrument to commemorate their ancestors and hid in the “deep and deep temple of the Divine Palace[14]”. It is difficult for ordinary people to see, but the nobles in related fields could read essays that were similar to precedents as a basis for arbitration. Teacher Wu Shichen pointed out: “The precedents that were placed on the gifts at that time were often placed in the noble family’s temples.In the hall, ordinary people had no right to enter the ancestral temple, so they were not allowed to ‘appreciate'[15]”. One of the meanings of “giving to the common people” in the Zhou Dynasty also means that the people did not know the unwritten jurisprudences that were passed down by the lords or hidden in the ancestral artifacts. Therefore, the Zheng Guozi created the criminal books and the ancestral swords and made and published the written codes to the people. Judicial law is no longer a technique that the lords mastered based on Chen’s habits and precedents. “The Sixth Year of Zhaogong” records “The former kings agreed to the affairs of the former kings,” and Du Note: “Instant affairs and punishments are not hesitant to establish the law. ”[16], that is, to create laws in specific judicial arbitration, rather than setting up a strict written code in advance. Ma Xiaohong’s teaching believed that the “conciliation” of sentencing by the ruling parties in combination with the “confidential” of various aspects is exactly the characteristics of the customary era [17].

After the collapse of the Eastern Zhou Dynasty, feudal society was replaced by a new structure of county government and editors, and Chen’s Zhou Dynasty practice was also replaced by a new written code. Some of these departments were retained in various Confucian books, but the annihilation of the past has been lost. Long time, later generations’ understanding of Zhou Rong will feel a sense of separation. The word “花” is not difficult to understand as “talking about gifts” or performing some rituals, but its management meaning as an unwritten law is not difficult to be ignored. This article attempts to combine the judicial activities seen in traditional texts and copperware texts to discuss Zhou Rong practice.

The difference between the second and third generations of practices