Why is there a judge who does not bow his head in the era of Wu Zetian?

Francis Fukuyama said that a good political order depends on three elements: the state, the rule of law and responsible government. Pen ~ fun ~ Ge www.biquge.info it would be interesting to measure the history of China in this way. In Fukuyama's view, China is a political precocious, and as early as 2,000 years ago, it has become a modern state that meets Max Weber's definition, with a unified central administrative structure, a complete bureaucratic appointment system, and impersonal management of a vast territory and a large population, so it can be called "a model for state formation".

But the other two elements of good order, the rule of law and accountable government, have been scarce throughout Chinese history. The so-called responsible government means that the ruler has to take responsibility for the people under his rule and put their interests above his own, which is too difficult for a monarch to be. One of the major functions of the Confucian tradition was to educate the rulers, with the assistance of bureaucrats and doctors, to receive training from the state of the state and to feel their responsibility to the people. But because this is not a formal system and there are no procedural constraints, it is still reluctant to call it a system of moral responsibility – it has always left China in a cycle of good emperors and bad emperors, and it cannot escape the historical fate of "one rule and one chaos". In fact, the only formal accountability system in traditional Chinese politics is upwards rather than downwards, with lower-level officials accountable to their superiors and higher-level bureaucrats accountable to the emperor, and the interests of the people never really cared for.

True accountability must be institutionalized and procedural, and this involves another element – the rule of law. However, compared with the responsibility system, the rule of law in China is even more ethereal, and it is impossible to talk about it. If someone uses Legalist thought to argue about the existence or absence of the rule of law, then he is too far wrong. The basic meaning of the rule of law is that no one is above the law, and the king or emperor must be bound by it and not do as he pleases. Legalism in China, on the other hand, does not recognize any authority or norm except for the monarch, let alone the rule of law. The laws they have in mind reflect only the will of the rulers, not the moral consensus of society. Such a law is clearly just an order.

Westerners have never had the idea of separating the judicial power from the executive power and implementing the rule of law in the system in imperial China for more than 2,000 years. Therefore, Taiwanese scholar Lu Jianrong is right, "A history of Chinese's human rights is a history of politics overriding justice." This sentence comes from the preface of the book "The Pioneer of the Iron Mask". Paradoxically, Lu Jianrong's purpose in writing this book is to find shining examples of judges from China's history that lacks a legal framework.

Although rare, there are "bones". Due to the lack of institutional guarantees, judges are still very hard-boned, and they are not afraid of being degraded, exiled, and killed, and they dare to take big risks. On the other hand, in the face of huge risks, they have high requirements for themselves in terms of legal literacy, and they will never be foolish and brave in the moment. Lu Jianrong said that this is called wisdom and bravery. Come to think of it, if it weren't for that, they wouldn't have been able to pull off the miracle of justice in a hopeless political landscape.

"The Pioneer of the Iron Mask" mainly focuses on the Wu and Zhou periods, and also takes into account a group of judicial scholars from 514 to 755 AD, especially Xu Yougong, who served as the chief of the Punishment Temple, the servant of the imperial history, and the Shaoqing of Dali, as well as his colleagues Di Renjie, Su Jue, Zhang Xingqi and others. The reason why I focus on that period is that in addition to the author's specialization in the history of the Sui and Tang dynasties, it is also because when Wu Zetian was in power, there were subtle changes in the inherent situation of politics overriding law.

Since the regent of Gaozong in his later years, Wu Mei abolished Zhongzong Li Xian, set up his fourth son Li Dan as the emperor, called the system in the dynasty, and finally officially called the emperor in 691 AD. She was worried that the legitimacy of the regime was too low and the foundation of her rule was not solid, so she reused cool officials and wanted to use justice to eliminate political opponents. But for the same reason, she had to tolerate a certain degree of justice who were loyal to the law, otherwise she would not be able to show her fairness and wisdom. This contradiction not only cultivated Zhou Xing, Hou Sizhi, Lai Junchen and other traitors who framed innocent people, but also created a group of judicial people such as Di Renjie, Xu Yougong, and Du Jingjian who upheld justice. The wrestling struggle in the middle was quite exciting, so much so that at that time, there was a folk proverb that "when you meet (Junchen) Hou (Sizhi) you will die, and when you meet Xu (meritorious) Du (Jingjian) you will live".

Xu Yougong is the judge who writes the most in "Iron Mask Pioneer". When many rebellions against Wu Zetian were put down by the officials and soldiers, political purges were launched one after another, and all kinds of unjust, false and wrongful cases implicated thousands of innocent people, Xu Yougong dared to defend in court and saved many lives. Several times, he confronted Wu Zetian face-to-face to clear the charge of the falsely accused. Many family members who sat together were sentenced to exile, and because of Xu Yougong's arguments, Wu Zetian finally had to "be released on the basis of merit" and was acquitted. There are more than 300 such cases. He was framed by colleagues such as Lai Junchen several times, demoted, exiled, and sentenced to death.

Why are there still people like Xu Yougong in a political environment where cool officials are rampant and murderous? Lu Jianrong's explanation of this is the most innovative part of the book. In addition to Wu Zetian's little tolerance, he believes that there are several other reasons worth paying attention to. For example, the educational traditions from the Northern Qi Dynasty to the Sui and Tang dynasties, including official and private studies, focused on the inheritance of legal knowledge, thus cultivating a large number of legal talents who were familiar with the written code, and also giving birth to a new tradition with the nature of legalism. Lu Jianrong refers to this historical process over the past 100 years as the "law-making movement" that abandons customary law and moves towards written law.

Along with this historical process, judicial culture gradually became part of the secular concept. This is evidenced by the popularity of the belief in judgment. When Xu Yougong accused Junchen, he said: "Junchen obediently knows the gift of the Lord's rebirth, and owes the way of the saint's kindness." This typical religious argument is supported by the belief in judgment.

The so-called judgment of hell is also the judgment of hell. This concept was born in the pre-Qin period, and in the Sui and Tang dynasties, it was basically stereotyped because of the prosperity of Buddhism. "Do evil in life and be punished after death" is for the sake of retribution. By extension, the belief that judges were unfairly judged and disregarded for their lives would be severely punished by the king of Hades when they arrived in the underworld, and this belief had a strong binding effect on the judges' behavior. In fact, when Xu Yougong and others were impartially enforcing the law, the books that talked about the ethics of judicial work, "The Chronicles of the Underworld", "The Chronicles of the Underworld", and "The Pearl Forest of the Law Garden" were widely popular. The author of the first book is none other than Tang Lin, a judge who served as the head of Dali Temple, the Criminal Department and the Imperial History Observatory during the Tang Taizong period.

But why did the "wise and courageous" judges, supported by legal knowledge and the belief in retribution, not create a true tradition of the rule of law? The answer is obvious, and it is not because of the "family of the world." The stronger the imperial power, the weaker the law. Lu Jianrong also admitted that no matter how powerful the iron-faced vanguard was, he was invincible when he met Li Shimin. After Empress Dowager Hu Ling, who was in power in the Northern Wei Dynasty, dismissed the three protesting judges from their salaries, she also declared in the form of an edict from the emperor that the ancient imperial private torture hall prison should have been, but now it was handed over to the judiciary for convenience. The general practice of sticking to the legal world, climbing the legal principles indiscriminately, regardless of the interests and harms, such a style deserves to be shared here. (Wei Shu Criminal Law Chronicles)

Lu Jianrong practices the tradition of narrative historiography, and his views and perspectives are unique, but his writing is unfortunately poor. Especially in the first third of the book, the story is messy and shallow, but the later part is more academic. He has written countless critical texts for Yu Yingshi for many years, and I don't know how the writing is, I am very curious.