Chinese style equity ――The application of “human relationships”, “ethics” and “national law” in the Song dynasty justice
Abstract
Confucianism, which was later developed to a higher level in Song dynasty, had an impact on the Chinese laws since ancient times. Song justice revealed new features, especially in terms of civil procedure: judge in Song dynasty integrated the “human sentiment” and “ethics”, which served as standards for deciding a case and compensated for the deficiency on statutory law, into “national law” ingeniously. The practice in those cases is of Chinese characteristics. Even when the “national law” were consistent with the “human sentiment” and “ethics”, the judge were in favor of writing it formulary, which served as standards for deciding a case together with the law itself, into court decree. But when they conflicted with each other, the “human sentiment” and “ethics” were given preference. When no law expressly provided, the “human sentiment” and “ethics” as jurisdiction clauses content to be determined, thus becoming the main basis for deciding a case.
The combination of “human sentiment” and “ethics” and “national laws” were in existence extensively in Song dynasty, and this contributed not only the justice in individual cases but also the configuration and maintenance of social order, which was influenced by the law. However, the justice equity, to a large extent, offers communication in the Nation-Society dualistic structure and regulates the contradiction between legal provisions and social reality. Meanwhile, it is also the judge' implement of moral and ethical value with a form of law. In the traditional judicial activities, the judge not only sticks to the moral principles of Confucianism, but also takes a practical attitude. Overall, the approach of justice equity adopting human sentiment and ethics into laws in Song dynasty makes an integrated law system, which achieves the purpose of stopping suits by the ruling class.
Keywords : Song dynasties justice，Human sentiment，Ethics，National law，Equity
