Chapter 50: The Rogue Man's Spring (2)

In order to fight for legitimacy and prove the legitimacy of the republican form of government, a group of jurists from Qidi explained: What is law? The norms of conduct that the state guarantees the implementation of by coercive force are laws.

This sentence is very simple, but it pierces the sacred cloak of the legal code, and the law is neither a codification of heavenly principles, nor is it an arbitrary dictatorship of the monarchy, but only a mandatory regulation of the state. The state – it could be a monarchy, a republican government, or a four-tier parliament with a constitutional monarchy.

By piercing through this simple layer of painting, the four-level council, which was contemptuously called "scoundrels" by the princes and nobles of Lin'an Province, took control of the law as a weapon of rule—when the large landowners and nobles in the republican government refused to carry out land reform and elect representatives of the people's will in accordance with the republican government's demands, the coercive power of the state ensured that it was carried out. Although they refuse to recognize the legitimacy of the so-called republican government – "a court without a king and a father that has not been heard of since ancient times" – it does not matter, as long as there is coercion, land and people, then it is a legitimate government.

The legal master who summoned the soul of the Sanjin School of Law was named Yelu Chucai, a Khitan nobleman, but he did not live very well in Daliao, so he went south to beg for a living, preached and taught in Qingzhou for 20 years, and then changed the dragon in the wind and clouds, and became the general of the so-called "Coercive Law School".

Zhu Xi has been dead for three hundred years, and more than two hundred years have passed since the era of Yelu Chucai. Until now, the school of natural law and the school of coercive law still attack each other and do not give in to each other.

Cheng Qi's University Park in Tokyo is the base camp of the School of Natural Law, and the Luoyang Higher Normal School is the important town of the School of Coercive Law in the Central Plains.

The professor from Luoyang saw an opportunity in "No One Survived", a judicial scholar was pained by the separation of human law and natural law, and finally embarked on the road of murder and crime - from the perspective of natural law, he killed all guilty people, but from the perspective of human law, he did violate the law. This story is an exaggeration to point out the irreconcilable contradiction between human law and natural law. Very well, the professor immediately pointed out that there is no such thing as natural law at all, but only the existence of ethical and moral characteristics specific to a certain era, and that human law can be revised at any time, and this is the subtlety of the superiority of coercive law over the ancient natural law.

After talking a lot, I went back to the old question of "King Fa Xian" or "Fa Hou King" in the pre-Qin era. Cheng Qi felt that both had merits, and neither had shortcomings.

The strength of natural law lies in the "assumption" of a model of perfect law, arguing that human law is imperfect and needs to be constantly improved to approach natural law itself, but the dilemma is how to prove that there is a perfect law itself, and how to prove that the new law is close to natural law rather than deviating from it.

The advantage of compulsory jurisprudence is that it uses the coercive power of the state as a guarantee, cancels the metaphysical factors of the law, and makes the legitimacy of the law clear at a glance, without the need to do a lot of unprovable metaphysical arguments. However, the disadvantage of compulsory jurisprudence is also this, and the most unanswerable question of compulsory jurisprudence is whether the evil law of bad government is still law once there is a bad government. The problem reached its climax in another time and space at the Nuremberg Trials: the Nazis acquitted themselves of looting, massacres, and ethnic cleansing as merely enforcing the laws of the state, but the judges finally ruled on the basic principles of natural law that a person should be able to judge by his conscience that an act was inhuman or unethical, even if it came from the coercive force of the state.

One is a Confucian tradition, and the other is a descendant of Legalism. Cheng Qi decided to take a third path between the two, and the reply to the letter to the Luoyang professor was the best opportunity.

He spread out the letter, first politely said two clichés, and then turned to the main topic:

What exactly is the law, this is the most fundamental question. The natural school believes that there is a heavenly principle, that the legal principle is the "share" of the heavenly principle, and that the law should be in accordance with the heavenly principle—this answers what the law should be; The school of coercive law, on the other hand, states that law is the sum total of norms guaranteed by the coercive power of the state – which answers the question of what law actually is.

How do you strike a balance between what should be and what is? Obviously, in life, the law is not divided into two parts, nor is it simply one of the two. Rather, there is both the supposed part and the actual part.

In fact, the law is neither the result of the meditation of a few scholars, nor the eraser created out of thin air by a group of old parliamentarians. Law is the sum of existing social relations, it is a social phenomenon, it has both rights and obligations, it is a system, this system has historical elements, but also the crystallization of the wisdom of people in the present era, and it also affects future events. It can be improved, and the role of the jurist is to propose and argue the necessity and possibility of improvement. The law has its own unique purpose, which is not abstract fairness and justice, but the fairness and justice of each case, that is, the social effect of the law.

Comparing natural law and compulsory law, Cheng Qi's concept of social law shifts the focus of attention from the source of law to the operation of law. He pointed out that if there is no good law but no good justice, good law is also bad law. The so-called true good law must be the good law that falls on a daily basis and manifests itself in individual cases.

After this letter was sent, it quickly caused an uproar in the Luoyang Higher Normal School, some criticized, some praised, and many law professors sorted out the views put forward by Cheng Qi in the reply letter in their own classes and discussed them one by one. In less than half a month, Cheng Qi received more than ten letters from Luoyang, some of which were long to refute him, some of which were carefully detailed and in-depth for him, and one was even more straightforward, this letter came from the joint name of more than ten professors of Luoyang High School, and they hoped to follow the ancient rules and invite Cheng Qi, a junior boy in the legal field, to start a debate in the school of Luoyang High School.

Mutual debates between different schools of thought is a long tradition in classical China, starting from the Jixia Academy in the pre-Qin era, scholars with their own views have launched various verbal wars, such as the White Tiger View Conference in the Han Dynasty, the Fan Zhen Xiao Ziliang Debate in the Liang Dynasty in the Southern Dynasty, and the Goose Lake Meeting between Zhu Xi and Lu Jiuyuan, to name a few.

Cheng Qi's recovered invitation card was led by Zhu Zhiyu (Mr. Shunshui), the sacrificial wine of Luoyang High Master, and the hospitality of scholars from various countries in Luoyang, such as Ito Nisai and Tokugawa Mitsukuni, which was a great honor for a young boy who set foot in academia for the first time.

"Let's go, go to Shangluo!" Cheng Qi didn't hesitate after receiving the invitation, and slapped his thigh and decided happily.