참고 (필독!): 현승종, 조규창, 로마법 (1996) 64-78쪽, 91-98쪽, 107-119쪽, 149-154쪽

C. F. Konrad, Book review: The Praetorship in the Roman Republic by T. Corey Brennan, The Classical Journal, Vol. 98, No. 3 (Feb. - Mar., 2003), pp. 341-347 http://www.jstor.org/stable/3298058

왕정 (c.753 BC - c.510 BC)

• 왕(선출왕), 원로원, 민회 (comitia curiata, comitia centuriata)
• 부족연합으로서의 로마: Tities, Ramnes, Luceres 각각 10개의 희생공동체(curiae)를 구성
• 班常의 구분: patricii, plebeii
• 門閥(gens) - 로마시민의 이름: Praenomen, nomen gentilicium, cognomen

예: Marcus Tullius Cicero, Gaius Iulius Caesar

• 타르퀸 (Tarquinius Superbus)왕 축출 - c.510 BC

공화정 (c.510 BC - 27 BC)

정무관(magistratus): 통치권(imperium)의 담지자

• 집정관(consul)
  comitia centuriata에서 선출, 원로원의 승인
  fasces를 든 수행원
  2인의 집정관이 상호 협의하여 국정수행, 반대권(intercessio)
  dictator
• 법무總監(praetor): 367BC에 창설, 242BC에 외인법무總監(praetor peregrinus)추가
• 戶口總監(censor)
• 하급정무관(magistratus cum potestate): 査問官(quaestor), 按察官(aedilis)

원로원

• 300-1000명으로 구성된 자문기관
• patres(문벌의 대표?)와 conscripti(평민출신 원로원 위원)
• 국정자문, 외교정책, 조약 승인(Senatus Populusque Romanus, SPQR가 당사자로 되는 조약)
• senatus consultum은 정무관의 질의에 대한 원로원의 답신, 권고 의견으로서의 성격

민회

• comitia curiata (문벌중심의 구성; 입양 adrogatio 승인권)
• comitia centuriata (군사적 구성; 전쟁, 평화에 관한 결정; 고급정무관 선출; 로마시민에 대한 사형집행승인; 법률 leges 제정)
• comitia tributa (지역중심의 구성; 하급정무관 aediles, quaestores 선출
• concilium plebis (평민회; 호민관 tribune 선출; 법률 plebiscita 제정 - lex Hortensia, 287BC)

제국 (27BC 이후)

황제

• Gaius J C Octavianus가 princeps senatus, Augustus라는 별칭을 원로원 으로부터 받고,
• 로마시민을 구원하였다는 이유로 (ob ciues seruatos) 사실상 황제로 대접받기 시작함 (27BC)
• 집정관(consul)과 원로원(senatus) 간의 권력배분 과정: 전쟁지역 (스페인, 갈리아, 시리아)의 통치권은 consul이 전권을 가지고 행사
• consul 과 tribune의 권한이 1인에게 집중;
• pomerium의 안과 밖을 막론하고 imperator라는 칭호를 종신토록 사용할 수 있도록 하는 원로원의 결정 (주기적으로 갱신)
• 전통적으로 consul의 군사지휘권에 적용되었던 제약이 모두 없어짐
• imperium maius라는 명목하에 전통적인 집정관이 누리지 못하던 특권이 부여됨

민회

• 2-3세기 경까지 존속
• 형식적, 자동적 동의기구로 전락
• comitia centuriata의 경우 사실상 제1분과(귀족계급으로 구성)만의 표결로 결의

정무관

• 두개의 그룹으로 분류: 인민에 봉사 (원로원에서 선출) - 황제에 봉사 (황제에 의해 임명)
• 政務官이라기 보다는 行政官
• cursus honorum에 따른 승진개념 (최병조, 로마법강의, p.60)
  • vigintiviri
  • quaestor
  • 6 aediles (귀족 출신인 경우) 또는 tribunus plebis (평민 출신인 경우)
  • 14-18 praetores
  • praefecti, legatus,
  • consuls: 6-25, 그러나 주로 12명 (prince 도 포함)
    속주통치를 위하여 부임 중에도 consul로 임명되는 관례 (consul in abstentia)
    praetor가 주재하는 소송사건에 대한 intercessio 행사
    tribune이 선고한 형벌에 대한 상소
    일반 민사사건에 대한 상소

원로원

• 전직 정무관과 adlecti로 구성, 600명
• 매달 2회씩 회합, 불출석 문제
• consul, praetor, tribune이 소집
• senatus consultum 에 법적 효력이 인정됨
  Gaius, Ins. 1.4 Senatusconsultum est, quod senatus jubet atque constituit: idque legis vicem obtinet, quamvis fuerit quaesitum. 원로원 결의는 원로원이 명하거나 제정하는 것으로 법으로서의 효력을 가진다. 하지만 과거에는 이 점에 대하여 의문이 있었다.
  Digest 1.3.9 Non ambigitur senatum ius facere posse. 원로원이 법을 만들 수 있다는 점에 대하여는 의문의 여지가 없다.(Ulpianus)
  Institutes, 1.2.3 Scriptum ius est lex, plebiscita, senatusconsulta, principium placita, magistratuum edicta, responsa prudentium. 성문법으로는 민회가 제정한 법률, 평민회가 제정한 법률, 원로원 결의, 황제의 승인을 얻은 칙령, 정무관의 고시, 그리고 법률가의 회답이 있다.

제국 후기의 변화

• 거의 모든 정치, 행정 권한이 황제에 집중
• 중앙집권화, 관료조직화
• 황실고문회 (sacrum consistorium) 와 황제비서실(scrinium epistularum, scrinium libellorum 등)의 역할 강화

질문:

• 민회 (Comitia Centuriata)가 제정하는 법률(leges)과 현대 국가의 법전(code) 간의 차이점은?
• 고전 로마의 법체제는 성문법계라고 설명하는 것이 타당한지, 불문법계라고 설명하는 것이 타당한지?
• Augustus에 의해서 시작된 원수정과 과거 공화정의 제도들 간의 관계는?
• 원로원 결의가 '법'으로 인정된 것은 원로원의 권한 강화를 의미하는가?

c.753	로마 건국
510	타르퀴누스 왕 축출
494	평민들의 이탈, 호민관직 창설
451	12표법 - fons omnis publici privatique juris (Livius, 로마사, 3.34.6)
445	lex Canuleia - 평민과 귀족간의 혼인을 금지하였던 제11표법 폐지
367	leges Liciniae Sextiae: 평민도 통령(consul)이 될 수 있게 됨; praetor urbanus 직 창설
351	평민도 censor 가 될 수 있게 됨
337	평민도 praetor 가 될 수 있게 됨
304	ius Flavianum: leges actiones의 내용이 공표됨; 법과 소송의 운영이 공개화; 사제계급의 법독점이 와해
300	평민도 Pontifex maximus가 될 수 있게됨; 법률가 집단의 등장; veteres
287	lex Hortensia; Concilium plebis의 의결사항이 법률의 효력을 가지게 됨 (plebiscita)
c.282	lex Aquilia 제정
264-241	제1차 Punic War
242	Praetor peregrinus직 창설
150	lex Aebutia: praetor urbanus가 방식서소장제도 채택
67	lex Cornelia: praetor 의 告示에 구속력 부여
27	Gaius Octavianus가 사실상의 황제로 추대됨, princeps senatus
0	lex Iulia: praetor urbanus 가 방식서 소장을 사용하도록 강제됨
131	영구고시록 (edictum perpetuum) - Hadrianus 황제시절 Salvius Julius 가 집성
c.161	Gaius의 Institutes
212	Constitutio Antoniniana (Caracalla 황제의 告示)
313	기독교 공인
395	동,서 로마의 분열
426	인용법 (law of citations)
438	테오도시아누스 법전
c.472	서로마제국의 몰락
532-534	동로마 유스티니아누스 황제의 법전편찬작업; 학설휘찬 법학제요, 신칙법

Reading

• Yulan Fung (Youlan Feng), A history ..., i. 279-311
• John Knoblock, Xunzi: a translation and study of the complete works (1988-94). Please refer to the pages indicated below.

Please note that my translation often differs from Knoblock's.

1. Towards canonisation and orthodoxy.

• Changing meanings of `learning' (i. 139)
• Where does the learning begin? Where does it end? Speaking about the technique of learning, it begins from reciting the canonical texts and ends with reading the records on Li. Speaking about the purpose of learning, it begins from becoming an officer and ends with attaining the Sainthood.
• Documents set out the main outlines of handling the political affairs; Odes record the appropriate sounds; and the records on Li stipulate the broad classification of laws and principal distinctions among people.
• When Li inculcates the reverence for civilization; when music inculcates the sense of appropriate harmony; when Odes and Documents equip one with the comprehensive knowledge; and when one has the perceptiveness and subtlety through the study of the Annals, then that is all there is to be learned by man.

2. Various schools and Xun Zi's criticism (found in chapters 非十二子, 解蔽, 天論)

• Shen Zi: To uphold law to the degree of lawlessness, to downplay the need for self-cultivation and to resort to statecraft. Whatever they are told from their superior, whatever they hear from the street, they put down in writing all day long and keep composing law codes.
• Those who roughly emulate the ancient kings but do not know the overarching principle. However, they have great talents and lofty ambitions. With their broad and diverse learning, they use the old texts to put together their novel theories which they call `the movement of five elements'. But their theories are so seriously wrong as to be peerless; apparently profound and subtle but non-sensical; and they lead to dead-ends and straightjacket without a way-out. In an attempt to embellish and worship their theories, they say, `These are the true sayings of the late noble man.' Zi Si (grand-son of Confucius; 子思) started this and Meng Ke joined in. In every ditch out there, you could find half-blind `scholars' noisily debating together without knowing what is wrong. Transmitted in this manner, the saying of Zhong Ni and Zi Gong became shrouded in a thick, dark veil from the later generations. This is the crime of Zi Si and Meng Ke.
  

  `Base scholars' (i. 229)
  -- Wearing a big hat almost covering one's nose, with an air of specious seriousness in their speech, they walk like Wu and quicken their pace on their tiptoes like Xun. They are the base scholars of Zi Zhang's school.

  -- Neatly wearing their hat and apparel, with a solemn face, they sit tight all day long without a word. They are the base scholars of Zi Xia's school.

  -- Being unscrupulous scholars but timorous when faced with an actual affair, they shamelessly endulge in food and drinks and say `A noble man does not labour with muscles'. They are the base scholars of Zi You's school.

• Shen Zi had a conservative view of things; he did not see the progressive aspect of things. Lao Zi saw the point of lying low; but he did not see the point of standing up and coming out. Mo Zi saw the point of equality; but he did not see the point of distinctions. Song Zi saw the point of reducing; but he did not see the point of increasing. (iii. 22)
• Mo Zi was blinded by utility and did not appreciate the culture. 墨子蔽於用而不知文. Song Zi was blinded by the question of desire and did not appreciate the fulfulment.宋子蔽於欲而不知得 Shen Zi was blinded by law and did not appreciate the talent.慎子蔽於法而不知賢 Hui Zi was blinded by language and did not appreciate the reality. 惠子蔽於辭而不知實 Zhuang Zi was blinded by Heaven and did not appreciate man. 莊子蔽於天而不知人 (iii. 102)

3. State-centred Political philosophy

• The King - the leading ruler - a ruinous ruler
• If a ruler promotes Li and honours the talented, he will be the king. If he relies on law and loves people, he will be the leading ruler. If he likes profits and often resorts to fraudulent means, he will be in danger. (iii. 20)
• If a ruler estalishes himself with rightness, he is the king. If he establishes himself with loyalty of the allies, he is the leading ruler. If he establishes himself with machinations, he will be ruined. (ii. 150)

4. Political legitimacy

• If a ruler cannot manage to nourish and provide for people, he will be estranged by the people. If he cannot manage to maintain the distinctions and rule the people, people will not be at peace. If he cannot manage to praise and promote people, people will not be pleased. If he is not elaborate and does not know how to embellish people, people will not be glorious. If he fails in these four main tasks of rulership, the whole world will leave him. Then he is to be referred to as an ordinary bloke. (ii. 182)
• When the Way exists, then the country exists. When the Way perishes, then the country perishes. (Ibid.)
• When the whole world returns to the man, he is to be called `the king'. When the whole world deserts him, he is to be called `a ruined man'. As Qie and Chu had lost the whole world, it is not that Tang and Wu killed a ruler. It was like executing a loner. (iii. 35)

5. Employment policy

• A noble man will assess each one's virtue and grade them accodingly; gauge their ability and confer the right post; and allow the talented and the lackeys to find their suitable position. Then the capable and the incapable can all obtain the appropriate post. Everything can find its right place. (ii. 72)
• Social distinctions may not be rigidly fixed; but the clear and obvious differences must certainly be recognised. Suppose the king, the dukes, the senior and the junior ministers or the officers have the offspring. If they cannot be worthy of their place according to Li and rightness, they should be ranked with the ordinary people. Suppose the ordinary people have the offspring. If they are learned and cultured, upright in their conduct and worthy of the [exalted] place according to Li and rightness, they should be ranked with the Great counsellors, senior and junior ministers and officers. (ii. 94)
• Even those whose speech and arguments are extreme, whose conduct and ability are troublesome, and those who had escaped from neighbouring countries' imposts and subversive ones should be given a post. They should be reformed for a while and observed. If they manage well, they should be recompensed. If they persist in wrongdoing, they should be punished. If they stick to their post, they should be kept. If they cannot stick to their post, they should be discarded. Those who are disabled at birth need to be provided for. According to their talents, they should be employed and given the post, food and cloths. Everybody should be covered without leaving out anyone. (ii. 95)
• If a country adopts a magnanimous employment policy, it will become big. If it has a petty employment policy, it will become small. ... Magnanimous employment policy means to put the rightness before benefit. It means, unhindered by the distinctions between the close and the remote and between the noble and the lowly, to seek people according only to their truthfulness and ability. (ii. 154-155)

6. Li and law

• Law cannot stand on its own; precedents cannot enforce themselves. When they are employed by good persons, they can survive. When they lose the good persons, they perish. Law is the starting point of good governance. But noble men are at the source of the law. In the hands of a noble man, therefore, even a schematic law can have a fair result. In the absence of a noble man, however, even a well-equiped law can cause disruption, for when the relative weight of the provisions is not properly taken into account, one cannot adequately cope with the changing circumstances. Those who do not understand the meaning of law and yet decide the matter resorting to the power of law will, even if they may be widely learned, cause disruption when faced with actual cases. (ii. 175-176)
• If Li is used to strighten the country, it is as if a balance is used to determine the lightness and heaviness of things; as if a chalk line is used to determine the straightness and crookedness; or as if a square and a compass are used to determine the angle and the circle. (ii. 155)
• 子曰：「可與共學，未可與適道；可與適道，未可與立；可與立，未可與權。」 (Lunyu 9.30)

7. Xun Zi's philosophy of Language (iii. 130-131)

• Names do not have inherent accuracy. They are what is named on the basis of convention. When the convention is widely accepted, we say that the name is accurate. If the use of name is different from the convention, we say that the name is not accurate.
• Names do not have inherent truth. On the basis of convention, they are used to name things. When the convention is widely accepted, we say that the name is true.
• There are things which have the same appearance but occupy different locations; or have different appearances but occupy the same location. These are to be distinguished.
• When the appearance changes without affecting the thing itself but making it different, we say that the thing is `transformed'
• `To kill a thief is not to kill a man': This is to confuse the names through a misleading use of names. By investigating why names are there and by observing their usual usage, this confusion can be prevented.
• `Mountains and lakes are on a level': This is to confuse the names through a misleading use of things. By investigating whether or not there are differences between the things referred to and by observing the usual correspondence between a thing and a name, this confusion can be prevented.
• `Horse is not a horse': This is to confuse the things through a misleading use of names. By investigating the convention for the name in question and if we are to reject that which is incompatible with what we accept, this confusion can be prevented.

8. Metaphysical questions

• The movements of Heaven are constant. They do not exist because of Yao. They do not perish because of Qie. In response to them, if men govern themselves, it will be auspicious. In response to them, if men misgovern, it will be omenous. (iii. 14)
• To achieve without doing, to obtain without seeking - this is what we call the job of Heaven. Deep as it is, man cannot think about it. Great as it is, man cannot carry it out. Sophisticated as it is, man cannot investigate it. This is what we call `not to dispute with the job of Heaven'.Heaven controls the time, Earth has the materials, man has the government. This is what we call the three participants. To abandon the proper role in this triad and to seek to participate in the other's doing, is to invite disruption. Celestial bodies follow their courses, the sun and the moon alternate, four seasons come with regularity, Yin and Yang transform everything, the wind and the rain broadly benefit things. When each of these things obtains harmony, it lives. When each of them obtains nourishment, it grows and matures. Man cannot see this business but can see the results. This is what we call godly. Although everyone knows the author of all these, its shapelessness permits no human knowledge thereof - That is what we call the Heaven. The Saint will not seek to know the Heaven. (iii. 15-16)
• Good or bad government is not the work of Heaven, is not the concern of the Earth. (iii. 17)
• Heaven does not stop the winter simply because man hates the cold weather. The Earth does not stop being vast simply because man loathes the distance. A noble man does not stop his conduct simply because the petty and the lowly cavil at it. The Heaven has its constant Way; the Earth has its constant methods; a noble man has his constant framework. (Ibid.)
• When stars fall and trees make sound, the people of the country are all scared and say, `What's the reason?' But I will say, `For no reason.' Although it is rare, such things do happen as a result of the changes in the Heaven and the Earth and as the Yin and the Yang interact. One may treat them as extraordinary. But it is wrong to be afraid of them. ... What is to be feared, however, is `human monstrosities'. To lose the right timing for farming and thus lose the harvest; to have a violent government and thus lose the people; to have the arable land turned into wilderness and have poor harvest; to have the hyper-inflation and to have the people starve; to have the streets littered with dead bodies. These are human monstrosities. (iii. 18)
• Suppose yu (the ritual for praying for rain) is followed by rain (yu). What is the reason? I would say, `For no reason.' It is just like having the rain when no yu ceremony has been done. When there is a solar or lunar eclipse, people do a ritual to fend it off. When there is a drought, people do yu ceremony to pray for rain. People also do divination and resort to oracles before making major decisions. But these are not meant to give the solutions. They are cultural gestures. Thus, a noble man would treat them as cultural events whereas the people will treat them as having the godly efficaciousness. If one approaches them as cultural expressions, they will be auspicious. If one approaches them as godly affairs, they will be ominous. (iii. 19-20)
• Funeral ceremonies are aimed at sending off the dead with a broad likeness of the living. Hence, it should be as if the person is now dead, now alive; now present, now absent. (iii. 67)
• What is to be retained in ancestral sacrifices is the sentiments of yearning and love. For a noble man, they are human being's business. But people treat it as a ghostly business. (iii. 72)
• To serve the dead as if they are alive, to serve the absent as if they are present. This is to portray the shapeless and the shadowless. That is the hallmark of an elaborate culture. (iii. 73)
• A noble man has reverence for what is in him. He does not yearn for what is in the Heaven. (iii. 18)
• He who clearly understands the distinction between Heaven and man may be called the ultimate man. (iii. 15)

9. Natural mind, emotions, desires and mind

• What makes a living being as it is, we call `nature (xing 性)'. When the nature is joined to a creature, emotions are put together and feelings arise in response but when that is not artificial but natural, we call it `natural mind (xing 性)'. Likes, dislikes, joy, anger, sorrow and delight of the natural mind, are called `emotions'情. While emotions may arise just like that, when the mind does the choosing and retaining, we call it `to think'慮. When, with a thinking mind, we proceed to act, we call it `to make a conscious effort'偽. With accumulated thoughts and through practice, achievements can then be made - they are what I call `conscious efforts'. If benefit is the main concern when such efforts are made, we call it an `affair' 事. If rightness is the main concern when such efforts are made, we call it a `conduct 行. That with which one can know these affairs and conducts in people, is called `knowledge'. That in which knowledge is put together, is called `intelligence'. When intelligence enables one to do things, we call it `ability'. When abilities are put together, we call `to be capable'. (iii. 127)
• Natural mind itself is something I cannot do anything about. But I can transform it. Emotions are something I do not own. But I can do something about them. [Practice and habits which are developed and single-mindedly repeated over a long time will transform a person.] Man becomes a Saint, therefore, through what he has accumulated. ... If a person follows the dictates of emotions and natural mind and does not sufficiently inquire and learn, he becomes petty and lowly. (ii. 81-82)
• Man is born with desire and only death will put an end to it. The amount of desire is a question of emotions. Orderly or disorderly government is a question of what the mind permits or prohibits, not a question of what and how much the emotions desire. (iii. 135)
• He who is inwardly cultivated will treat outward things lightly. A noble man have the things work for him; the petty and the lowly work for things. (i. 154)
• Natural mind is as Heaven would have it. Emotions depend on the quality of natural mind. Desires are the responses of emotions. (iii. 136)

10. The Way and wu wei

• A noble man rightly responds to the changes because he knows when to bend and when to remain straight. (i. 175-6)
• Everything is a part of the Way. Each thing is a part of everything. Stupid people treat a thing as an isolated piece. (iii. 22)
• What we call the Way has the constant framework but constantly changes. It is impossible to take one corner of it and try to lift the whole thing up. Those who have distorted knowledge see one corner of the Way. While their knowledge is not enough to understand the Way, it is enough to allow them to embellish their knowledge. Their knowledge, however, is full of self-contradiction. And it misleads others too. What they say here hinders what they say there. (iii. 103)
• Confucius had wonderful wisdom and he was unhindered. His learning, therefore, had his technique under control. ... He was not hindered by what he has achieved or by what he has acquired. ... A saint knows the danger of having his mind occupied by technique, sees the harm of being hindered and stuck. Therefore, he harbours no desire, no aversion; no beginning, no end; no closeness, no remoteness; no comprehensiveness, no shallowness; no past, no present. He approaches everything at the same time and rightly weighs all of them. (Ibid.)
• What is it `to weigh'衡 ? That's the Way. The mind, therefore needs to know the Way. If the mind does not know the Way, one cannot talk about the Way; one may instead disparage the Way. (Ibid.)
• How do we know the Way? It depends on the mind.心 How does the mind know the Way? Through emptiness, oneness/wholeness and serenity.虛壹而靜 (iii. 104)
  • As we live, we acquire knowledge. With our knowledge, we form fixed ideas. Fixed ideas are stored. It is, however, possible to talk about emptiness. When what is already stored does not hinder what will be stored, we may refer to it as emptiness.
  • As we have mind, we have knowledge. As we have knowledge, we distinguish. To distinguish is when we know two things at the same time, we know that they are two different things. It is, however, possible to talk about oneness. When one thing does not hinder the other, we may refer to that as oneness/wholeness.
  • When our mind is left lying around, we dream about things. Those who are unscrupulous will go ahead and do as they fancy. Those who use their imagination will conspire. Our mind is thus never at rest. It is, however, possible to talk about serenity. When what we fancy does not disrupt our knowledge, we may refer to it as serenity.
• When the mind is empty, new things can enter. When the mind is one (whole), one can be thorough. When the mind is serene, one can observe. He who knows how to observe the Way, how to proceed along the Way and thus embodies the Way, can be called empty, whole and serene. That is what we call `SUPREME CLARITY'.大清明 (Ibid.)

11. Xun Zi's fallacies

• Man's natural mind is bad; what makes it good is man's conscious efforts. (iii. 150)
• Even if you may lay the firewoods in one heap, the fire will proceed to the dry ones first. Even if the ground may be level, water will proceed to the damp corners first. (i. 137-138)
• A Noble man maintains his arguments untainted. Thus, the same kind of men will agree. His speech is good. Thus, similar kinds of men respond. This is just like when a horse brays hee, another horse responds haw. That is not because the horse has the knowledge but because that is how the influence works. (i. 177)

Reading

• Yulan Fung (Youlan Feng), A history ..., i. pp.106-131
• Kwong-loi Shun, Mencius and Early Chinese Thought, pp. 48-83, 180-231
• Kim-Chong Chong, "Xunzi's Systematic Critique of Mencius", Philosophy East and West, Vol. 53, No. 2 (Apr., 2003), pp. 215-233

1. Misunderstanding 仁 (Ren)

(a) Closeness within family circle, that is 仁 (親親仁也)

We all have things which we cannot tolerate. To have that mindset with regard to what we can tolerate, that is 仁. We all have things which we do not do. To have that mindset with regard to what we do, that is righteousness. 人皆有所不忍 達之於其所忍，仁也. 人皆有所不為 達之於其所為，義也. (盡心下 31)

仁 means to offer what one loves to those whom one does not love. Lack of 仁 means to offer what one does not love to those whom one loves. 仁者以其所愛及其所不愛 不仁者以其所不愛及其所愛. (盡心下 1)

A man of 仁 has none that he does not love. As a matter of priority, however, he focuses on his parents and on the talented. ...  Yao and Xun's 仁 meant that they loved people without taking sides. But they loved their parents and the talented as a matter of top priority. 仁者無不愛也 急親賢之為務 ... 堯舜之仁不遍愛人，急親賢也. (盡心上 46)

Tao Ying asked, "Suppose Xun was the Son of Heaven; Gao Yao, his officer. Gu Sou commits a murder. What should happen?" Meng Zi said, "He will be arrested." "You mean, Xun will not intervene?" Meng Zi said, "Even Xun would be wrong to intervene as it is about what he has received from his predecessors." "Then what should Xun do?" Meng Zi said, "Xun will regard abandoning the world as no different from abandoning a worn out pair of shoes. He will sneak in, carry his old man on his back and escape. They will go to a seaside and settle there. Until his last day, they will be happy like that. In his happiness, Xun will forget about the world." (盡心上 35)

Wan Zhang said, "Xun's parents had Xun repair a granary. Once Xun was up there, they removed the ladder. Gu Sou then set fire to the granary. They had Xun bore a well. Once Xun was inside, they blocked the well. Xiang said, 'The plot to bury him in the well is all to my credit. Xun's cattle, Xun's granary may go to my parents. But I must keep Xun's armoury, his lute and his bow. Also, his two wives must now attend my bedroom.' Xiang went to Xun's palace. Xun, however, was on his bench playing the lute. Xiang said, somewhat embarrassed, 'Well, er, I was thinking about you ...'  Xun said, 'You're always kind to the staff and to the people. Why don't you help me govern?' Is it not because Xun did not know that Xiang was trying to kill him?" Meng Zi said, "How could he not know? But when Xiang was unhappy, Xun was unhappy too. When Xiang was happy, Xun was happy too." (萬章上 2)

Meng Zi said, "A noble man's attitude towards things is this: he loves them (愛). But it is not 仁. Regarding people, he loves them with 仁. But it is not closeness (親). Love your parents with closeness (親); love people with 仁; and love all things (愛). 孟子曰：「君子之於物也，愛之而弗仁；於民也，仁之而弗親。親親而仁民，仁民而愛物。」(盡心上 45, qin qin, ren min, ai wu)

To love your family members with closeness, that is 仁.  "親親仁也" (盡心上 15, 告子下 3)

However, Confucius said:

"Guys, when you are at home, serve your parents. When you are outside, treat everyone with brotherly love. Be earnest and trustworthy. Comprehensively love all living beings but closeness should be based on ethical integrity. Conduct should come first. Then, read books (學文) when you have energy to spare." 子曰：「弟子入則孝，出則弟，謹而信，汎愛眾，而親仁。行有餘力，則以學文。」 (學而 1.6)

(2) Mea culpa, mea culpa! (終身之憂)

• Don't blame others! Never fight!
• Scrutinise yourself all your life.

Mencius said thus: "What differentiates a noble man from the people is that he preserves his heart with 仁 and 禮. A man of ren loves people. A man of li respects people. He who loves people is bound to be loved by people. He who respects people is bound to be respected by people. Now, if there is a person who treats me with atrocities, if I am a noble man, I would scrutinise myself thus, 'I must have lacked ren and lacked li. Otherwise, how can this happen to me?' If his atrocities are not due to my lack of ren or li, if I am a noble man, I would scrutinise thus, 'I must have lacked loyalty.' If I was loyal to him as well and he nevertheless committed these atrocities to me, then if I am a noble man, I would say, ' 'This is a gone case. He is no different from a beast. Why should I take issue with a beast?' Thus, a noble man has life long worries. He would not have a day's calamity...."   (離婁下 28)

How should you worry? Worry like Xun did. 憂之如何？如舜而已矣 (離婁下 28)

Mencius said thus, "仁 is like archery. An archer will shoot the arrow after obtaining the correct posture. If he misses the mark, he does not blame the winner. He turns on himself to scrutinise his own shortcomings." (公孫丑上 7)

Cf. The Master said, "A noble man has no reason to fight. But if he has to fight, he will do it as in the archery. He will bow and give way as he mounts to shoot. Afterwards, he dismounts and will share the drinks. This is how a noble man fights."
子曰：「君子無所爭，必也射乎！揖讓而升，下而飲，其爭也君子。」(八佾 4.7)

Cf. Si Ma Niu asked about noble man. The Master said, "A noble man does not worry, is not afraid." Si Ma Niu said, " 'No worry, not afraid'? Is this what a noble man is about?" The Master said, "When you look at yourself and find no blemish, why would you worry, why should you be afraid?" 司馬牛問君子。子曰：「君子不憂不懼。」曰：「不憂不懼，斯謂之君子已乎？」子曰：「內省不疚，夫何憂何懼？」(顏淵 12.4)

Cf. Someone asked, "When a person causes you grievances, how about reciprocate them with virtue?" The Master said, "When a person treats you with virtue, with what will you reciprocate? When a person causes grievances, you reciprocate them with frankness. When a person treats you with virtue, you reciprocate it with virtue."  或曰：「以德報怨，何如？」子曰：「何以報德？以直報怨，以德報德。」(憲問 14.34)

2. Misunderstanding 禮 (Li)

Meng Zi said, "仁 boils down to serving your father. 義 boils down to obeying your elder brother. 知 boils down to knowing these two and not to abandon them. 禮 boils down to regulating and institutionalising these two. 樂 boils down to deriving pleasure from these two." (離婁上 27) 事親從兄

Duke Jing of Qi was out on the field. He summonned a game keeper with a pennon. The game keeper did not come. And the game keeper was going to be put to death for this. A determined officer does not forget that he may end up dead in a ditch or in a valley (溝壑); a courageous officer does not forget that he may have his head chopped off. What did Confucius want to illustrate with this? He wanted to show that when the summon was not properly done, one should not repond. Wan Zhang asked, "May I venture to ask how the game keeper should have been summonned?" Meng Zi said, "With a leather hunting cap. A commoner should be summonned with a plain pennant; an officer, with an embroidered pennant; magnates, with a pennon. As the game keeper was summoned with a pennon which is used to summon a magnate, the game keeper dared not respond even though he risked being executed for his refusal. How can a commoner have the audacity to respond to a call which was done with an insignia for summoning a high ranking official?" 萬章下 7, 滕文公下 1

• Cf. The Master said, "Li (禮)! Li! Do you think I am talking about jade and silk?" 子曰：「禮云禮云，玉帛云乎哉？」(陽貨 17.11)
• Cf. The Master said, "When a noble man broadly learns civilisations and constrains himself with Li, he would not cross the line." 子曰：「君子博學於文，約之以禮，亦可以弗畔矣夫！」 (6.27) (12.15)
• Cf. Zi Gong said, “Guan Zong lacked ethical integrity, did he not? When Duke Huan of Qi had his brother Jiu killed, Guan Zhong was unable to commit suicide. He instead served Duke Huan as his minister.” The Master said, "Guan Zhong acted as prime minister to the duke Huan, made him leader of all the princes, and united and rectified the whole kingdom. Down to the present day, the people enjoy the gifts which he conferred. But for Guan Zhong, we should now be wearing our hair unbound, and the lappels of our coats buttoning on the left side. Will you require from him the small fidelity of common men and common women, who would commit suicide in a stream or in a ditch (溝瀆), no one knowing anything about them?" (憲問 14.17)

• Cf. The Master said, "A determined officer, a person of integrity would not seek to live undermining ethical integrity. He will sacrifice his life to fulfil the ethical integrity." 子曰：「志士仁人，無求生以害仁，有殺身以成仁。」衛靈公 15.9
• Cf. The Master said, "To follow the Li, ceremonial caps should be made of Hemp. Nowadays people use silk cap, which is economical. I follow the general trend..." 子曰：「麻冕，禮也；今也純，儉。吾從眾。(9.3)

3. Metaphysical, mysterious Mencius

Meng Zi said, "Bo Yi was holy and remained clean. Yi Yin was holy and undertook responsibilities. Liu Xia Hui was holy and achieved harmony. Confucius was holy and knew the right timing. What Confucius did was to assemble and achieve a grand ensemble. To assemble and achieve a grand ensemble is to start with the sound of iron bells (金聲) and to end with the vibration of jade carillon (玉振). The sound of iron bells signifies the beginning of the way things work; the vibration of jade carillon signifies the end of the way things work. The start of the way things work means wisdom. The end of the way things work means holiness. Wisdom is like skills. Holiness is like the strength. 萬章下 1

4. Xing [Original mind]

• The Master said, "The original mind is more or less the same; what we do afterwards tends to make us different." (陽貨 17.2)
• Zhong Yong, preamble: "We call 'original mind' what Heaven has ordained in us."
• Zi Gong said, "About our Master's brilliant learning, you can hear. But you cannot hear him talk about man's original mind or the Way of Heaven." 子貢曰：「夫子之文章，可得而聞也；夫子之言性與天道，不可得而聞也。」(公冶長 5.13)

문제는 여기

[해설]

김갑동 이을순 간의 계약은 토지매매계약이다. 그러나 매매대금을 받기 전에 매수인에게 점유를 넘겨주고, 건물을 짓도록 허락하는데 대한 위험요인을 감안하여, 매매 당사자 간에 추가적인 특약이 있었다. 즉, 건물 완공 후 30일 내에 토지매매 대금을 완납하지 않으면 토지매매계약은 별도의 의사표시 없이 해제되고, 손해배상에 갈음하여 토지매수인(이을순)은 자기 소유의 신축건물까지 토지매도인(김갑동)에게 양도하겠다는 내용이다.

이 특약을 대물변제의 예약이라고 오해한 응시생이 더러 있었는데, 이 사안에서는 건물 완공 후 30일 내에 잔금이 지급되지 않으면, 계약이 자동해제되도록 미리 합의하였다는 점을 이해할 필요가 있다.

이을순 박병국 간의 계약은 건물 신축을 내용으로 하는 도급계약이다. 이을순의 변제자력이 미약함을 염려한 박병국은 이을순이 공사대금을 지급하지 못하게 되는 경우, 이 사건 토지와 건물을 자기 소유로 확보할 수 있도록 하고자 이을순과의 특약을 체결하였다. 그 특약의 내용은 이을순으로부터 박병국이 이사건 토지와 건물을 5억원에 매수하고 그 중 2억원의 지급방법은 이을순이 김갑동에게 부담하는 토지매수대금 지급채무 2억원을 박병국이 대신 이행하기로하고, 나머지 3억원은 공사대금 잔금채권과 상계하기로 한 것으로 해석된다. 그러나, 이을순이 공사대금 잔금을 약정 기한내에 지급하지 못하는 경우, 박병국이 반드시 이을순으로부터 토지와 건물을 매수하여야 한다는 내용이라기 보다는, 박병국의 선택으로 이렇게 할 수도 있다는 취지로 보인다. 건물 완공 후 30일 내에 공사대금 잔금이 지급되지 않는 경우, 박병국은 잔금지급을 구하기로 선택할 수도 있음은 물론이다.

건물의 완공과 동시에 건물 소유권은 건축주 이을순이 원시취득하게 되는데, 이을순에 대하여 8천만원의 채권을 가진 정금자가 이을순의 책임재산인 이사건 건물을 가압류하였다. 가압류 자체는 소유권 관계에 변동을 가져오지 않으므로, 특별한 사정이 없는 한 가압류로 인하여 채무자 이을순의 책임재산이 감소되었다고 평가할 수는 없다. 특히 이을순이 정금자와 통모하여 가압류 등기를 경료시켰다고 볼 정황도 없으므로 가압류의 효력을 다툴 여지는 없다.

이을순이 i) 자기 소유 건물을 강민첩에게 처분하는 행위, ii) 김갑동과의 토지매매 계약을 합의해제하는 행위가 사해행위인지 여부가 문제의 핵심이 된다.

그 건물이 이을순의 책임재산의 중요 항목 또는 거의 유일한 항목이고, 그 처분으로 이을순의 무자력이 초래 또는 심화된다면 사해행위로 평가받을 여지가 있다. 이을순에게 채권자를 해할 의사(害意)가 있었다는 점은 사해행위 취소소송의 원고가 될 박병국이 입증하여야 한다. 그러나 채권자를 해할 의사는 객관적 자료를 근거로 판단하므로, 그 처분행위가 무자력을 초래하거나 심화한다는 점을 입증하면 족하다. 구체적으로 어느 채권자를 특별히 해할 의사가 필요한 것도 아니다. 책임재산의 감소로 채권자들이 일반적으로 채권만족에 지장이 초래된다는 점을 인식하고 처분행위를 하면 채권자를 해할 의사가 있은 것으로 인정된다. 수익자 강민첩의 악의는 추정된다. 본 사안에서 강민첩은 비정상 적으로 저렴한 가격에 건물을 매수하였으므로 자신이 선의였다는 점을 입증하기가 거의 불가능할 것이다.

이을순이 김갑동과의 토지 매매계약을 합의해제한 행위도 사해행위로 될 것인지는 의문이다. 사해행위 취소소송은 채무자의 책임재산이 부당히 감소되는 것을 저지하려는 것인데, 토지 매수계약 만을 체결하였고, 아직 토지 소유권을 획득한 바도 없던 상태에서 매수계약을 해제 한다고 해서 책임재산의 감소가 있었다고 평가하기는 어려울 것이다. 물론 박병국이 이을순으로부터 이사건 토지를 매수하려면, 이을순 김갑동 간의 매매계약이 해제되어서는 안되고, 이렇게 보면 이을순 김갑동 간의 토지 매매계약 합의 해제는, 이을순이 박병국에게 부담하게 될 채무의 이행을 불가능하게 만드는 행위임은 분명하다. 그러나 채권자 취소권은 이처럼 특정채권의 보전을 위하여 행사할 수 있는 제도가 아니다.

설사, 이을순 김갑동 간의 합의해제가 사해행위로서 취소되더라도, 이을순은 매수인에 불과할 뿐, 김갑동 소유의 토지가 이을순 소유로 되는 것은 아니다. 김갑동은 자기 소유의 토지를 강민첩에게 (이중으로) 매도할 수 있고, 그 이중매매가 반 사회질서 행위라고 볼 특별한 사정이 없는 한, 이를 무효로 볼 여지는 없다. 박병국은 김갑동에게는 어떠한 채권도 없으므로 김갑동의 처분행위의 효력을 다툴 근거는 전혀 없다.

결국 이 사건 건물에 한하여, 박병국은 강민첩을 피고로 하여 사해행위 취소소송을 제기하고, 건물 소유권 이전등기를 말소 시킴으로써 건물을 이을순의 책임재산으로 환원시킬수 있다. 저당권 등이 설정되어 있던 부동산을 목적물로 한 사해행위가 있은 후, 저당권이 말소된 경우 원물반환을 허용하지 않는 것과는 달리, 가압류되었던 부동산의 경우에는 사해행위와 동시에 또는 사해행위 후에 가압류가 취소되더라도 원물 반환을 구하는데에는 아무 지장이 없다.

이 사건 부동산에 대하여 강민첩 앞으로 경료된 소유권이전 등기가 말소되면, 박병국은 이을순을 피고로하여 공사대금 잔금 채권 3억원의 지급을 구하는 소송을 제기하고, 그 승소 판결에 기하여 이 부동산에 대한 집행절차를 개시할 수 있다.

[채점 평]

대부분의 응시생들이 채권자 취소권이 핵심쟁점이라는 점을 정확히 파악하고 만족스러운 답변을 제출하였다. 간혹, 이을순이 김갑동에게 부담하는 토지매수 대금 지급 채무를 박병국이 인수하였다고 오해하고 채무인수에 대하여 자세히 논한 수험생들이 있었다. 그러나 이을순-박병국 간의 특약을 정확히 해석하는 것이 무엇보다도 중요하다. 약정 기한 내에 공사대금 잔금이 지급되지 않으면 박병국이 반드시 김갑동에게 2억원을 지급할 채무를 부담한다는 취지로 해석할 수 있을까? 박병국으로서는 도급계약에 기하여 공사대금 잔금 지급을 구하는 채권을 행사할 가능성을 일부러 포기할 이유가 없고, 특약의 내용 또한 그렇게 해석할 아무런 근거도 없다. 박병국이 원하면, 이을순이 김갑동에게 부담하는 토지 매수대금 지급채무의 이행을 대신할 수는 있지만(이행인수), 김갑동이 이미 그 토지를 강민첩에게 처분해버린 이상, 박병국은 도급계약에 기한 공사대금 지급을 구하는 외에는 별다른 해법이 없을 것이다.

이을순-박병국 간에도 대물변제의 예약이 있었다는 취지의 주장을 제기한 수험생도 있으나(공사대금 잔금 지급에 갈음하여 건물을 양도), 이을순-박병국 간의 특약은 이를 단순히 대물변제의 예약으로 보기는 어렵다. 기한 내 공사대금 지급이 없을 것을 정지조건으로 한 건물 및 토지 매매의 예약이라고 보는 것이 적절할 것이다(위 설명 참조).

(가)압류되었던 부동산에 대하여 사해행위가 있은 경우, 사해행위 후에(또는 사해행위와 동시에) 수익자의 출연으로 (가)압류가 취소되었다면, 수익자가 원물반환을 저지할 수 있는지를 논의한 수험생은 많지 않았다. 그러나, 이점을 논의한 수험생은 대부분 원물반환이 가능하다는 정확한 결론을 도출하였고, 저당권이 설정되었던 부동산과는 달리 이해할 필요가 있다는 점도 언급하였다. 2002다37474 참조.

김갑동 이을순 간의 토지매매 계약의 합의 해제와 관련하여 박병국이 과연 제3자로서 보호되어야 하는지를 논의한 수험생도 많았다. 매우 바람직한 문제의식이고, 이 논의를 한 대부분의 수험생들은 박병국이 계약해제의 경우 보호되어야 할 제3자가 아니라는 정확한 분석을 제시하였다. 민법 제548조 제1항 단서에서 말하는 제3자는 계약을 기초로 새로운 이해관계를 형성하였을 뿐 아니라, 등기 또는 점유의 이전 등으로 확정적인 권리(대세적 권리)를 취득한 자를 말한다. 계약상의 채권을 양수하였거나, 그 채권에 의존하여 새로운 채권관계를 형성한 데 불과한 자는 여기서 말하는 제3자 아니다.

채권 총론

1.  채권 양도의 대항요건을 설명하고, http://www.korea.ac.kr/%7Elawlec/obl/22648.html 사례를 평석함.  5월23일 24:00까지.

2.  동시이행의 항변권을 설명하고, http://www.korea.ac.kr/%7Elawlec/obl/4298.html 사례를 평석함. 6월6일 24:00까지.

서양법제사

1.  다음 귀절을 감안하여 위임계약을 설명함.

 무상이 아닌 위임관계란 있을 수 없다. 위임은 의무감이나 친분관계에 기하여 맺어지는 것에서 연원하는 것인바, 대가를 받는 다는 것은 의무감과는 상충된다. 금전이 개입되면 그 관계는 오히려 임계약에 해당하는 것이다. Dig.17.1.1.4

5월23일 24:00까지

2.  다음 귀절을 설명하라:

 카시우스는 탈퇴 조합원은 다른 조합원을 조합법적 구속에서 해방시키지만 자신을 해방시키지는 아니한다고 한다. 이 견해는 악의로 탈퇴하는 조합원에 대하여 적용된다.전 재산에 대하여 조합관계를 맺은 자가 상속받기에 임박하여 그 점을 고려하여[상속 재산을 독식하려는 의도로] 탈퇴하는 경우가 그러하다. 이때 상속으로 입은 손해는 탈퇴자가 전부 부담하고, 이득은 조합원에게 분배하도록 조합원 소송이 허용된다. 그러나 탈퇴 후에 [별도의 원인으로] 얻은 이득은 분배하지 않아도 된다. 그러한 이득은 악의로 취한 것으로 볼 수 없기 때문이다. Dig.17.2.65.3

6월6일 24:00까지

보고서는 각 경우, A4 용지 2면을 넘지 않는 분량으로 작성하여,   http://lawlec.korea.ac.kr/essay 에서 제출하시기 바랍니다.

Mo Zi

Reading

• Yulan Fung (Youlan Feng), A history ..., pp. 76-105
• Xinzhong Yao, An introduction ..., pp. 71-80
• Burton Watson, Basic writings of Mo Tzu, Hsün Tzu, and Han Fei Tzu (New York, London, 1967), pp. 39-49, 52-61, 65-77, 78-83, 110-116, 124-136.

Peculiar style, similar to Pali suttas

example

 

Mo Zi and his followers - passages from Mo Zi Jian Gu

1. Shang Xian [Upholding the talent]

[It is good for the state to have plenty of skilled archers and charioteers. By offering them good benefits, the state can secure many of them. Likewise, it is good to have plenty of] talented and good administrative staff who are ardent in the practice of virtuous conducts, clear in discourse, broadly learned in the Way and methods. They are the treasures of a state, keepers of the altars of soil and grain. They too must be enriched, honoured, respected and praised. Then, they may be obtained in plenty.

[The ancient sage kings said,] no rightness, no rich; no rightness, no honour; no rightness, no favour; no rightness, no closeness ... Having heard this, everybody strove for rightness.

Ancient sage kings venerated and honoured the talent. Their appointment was based on ability. No partisan-ship for the kin, no preference for the noble or the rich, no favouritism for the good-looking. Talented persons were employed and promoted. Wealth and honour were bestowed on them. Leading posts were given to them. Incapable ones were suppressed, impoverished, dishonoured and pressganged to labour. Then the people - encouraged by the recompense and fearing the punishment - all strove to become talented. The talented persons became numerous; the incapable ones became few. This is called `advancing the talent'.

Upholding the talent is the foundation of good governance.

cf. Lun Yu (尙賢 v 賢賢)

1.7 子夏曰：「賢賢易色，事父母能竭其力，事君能致其身，與朋友交言而有信。雖曰未學，吾必謂之學矣。」
4.16 子曰：「君子喻於義，小人喻於利。」

2. 'Radical' understanding of Lun Yu, 3.4
(Lin Fang asked about the root of Li. The Master said, ‘Great question! Regarding Li, you should rather be frugal than splashing out. Regarding funeral, you should rather have a genuine sentiment of poignancy than nicely decorating the graves. 林放問禮之本。子曰：「大哉問！禮，與其奢也，寧儉；喪，與其易也，寧戚。」)

• Jie Yong [Moderation of comfort]
  

  Then, what should be the method of building a house? Mo Zi said, walls should be able to shield from winds and coldness; the roof should be able to shield from snow, frost, rain and dews; the inside should be clean enough to offer ancestral sacrifices; partitions and outside walls should be able to maintain the distinction between men and women. This should be enough and no more. All additional expenses which do not add to the benefit of the people were avoided by the sage kings.

• Jie Zang [Moderation in funerals] (節葬下, 6)
  

  [As a result of elaborate funeral and lengthy grief period], the rulers will not be able to discharge their official duties, the people will not be able to pursue their activities. If the rulers do not discharge their official duties, the punishment and government will be disrupted. If the people do not pursue their activities, the basic materials for subsistence will be lacking. In the event of the shortage, a younger brother asking for help from his elder brother would not be able to get it. The younger brother who is not affectionately looked after is bound to blame his elder brother. A son asking for help from his father would not be able to get it. Then the son will not be respectful and is bound to blame his father. A subordinate asking for help from the boss will not be able to get it. Then the subordinate will not be loyal and is bound to usurp his superiors. [Then it will be impossible to govern.]

  Food and clothes are the benefits of the living. A measured approach is necessary. Funerals and burials are the benefits of the dead. Then why shouldn't there be a measured approach for this?

  This is Mo Zi's method of not losing the benefits of the living and the dead.

• Fei Yue [No music] - cf. Lun Yu, 3.23 ("I know something about music. You begin, then you move on to unison, you then phase into polyphony. The sound should be clear and distinct. Yet it should be unbroken and continuous. That’s how you play."), 17.11 ("Music, music! Do you think I am talking about bells and drums?")
  

  The body does know what is comfortable, the mouth knows what is sweet, the eyes know what is beautiful, the ears know what is delightful. Seeing, however, that music was not among the sage kings' business; understanding that it is not in the interest of people, Mo Zi says, `No music!'

  [With a complete array of able-bodied musicians, music is played.] Magnates alone listen to it. What pleasure? This argument certainly applies to the people as well as to the ruler. While listening to the music, the ruler cannot listen to the people. While listening to the music, the people cannot pursue their [productive] activities ... Mo Zi therefore says, 'No music!'

3. Jian Ai [Reciprocation of love]

In a poem of Zhou [Shu Jing, Hong Fan], it is said, 'The kingly Way is immense. No sides, no parties. The kingly Way is even. No parties, no sides.' It was straight as an arrow, straightforward as a grinding stone. I am not making this up. In olden days, the king Wen and the king Wu rightly divided up equally. In rewarding the talented and in punishing the violent, no favouritism was shown to a father, an uncle, a brother younger or elder.

In the Odes, the poem Ya has it, 'No word fails to get a reply; no virtue fails to get a recompense. Toss me a peach, I will pay you back with a pear.' This means that he who loves others is bound to exude love; he who hates others is bound to exude hatred.

If we all reciprocate benefits to each other, we will all have the benefit. It will be so easy ... I believe that no ruler has yet explained this. If a ruler explains this, encourages the people with prizes and honours and threatens them with punishments, I believe that people will proceed to mutual love and reciprocation of benefits just as a flame proceeds upward and water proceeds downward.

cf. Lun Yu,
1.6 (汎愛眾，而親仁),
6.30 (Zi Gong said, ‘How about broadly looking after people and thus bringing all living beings to their fulfilment? Can it be called ethical integrity?’ The Master said, ‘How can it merely be ethical integrity? It must be Sainthood!),
15.24 (子曰：「其恕乎！己所不欲，勿施於人。」What you yourself do not want, do not do it to others.),

4. Fei Gong [No war of aggression]

[Wars of aggression cause loss of man-power and material resources which could otherwise be used to venerate the Heaven, appease the ghosts and bring comfort to people.] Is the aggression, then, in the interest of the Heaven? Is it, then, in the interest of ghosts? Is it, then, in the interest of man?

When you kill one person, people will say it is wrong. You committed the crime of killing one person. Proceeding along this line of argument, we may say that killing ten persons are ten times as wrong. It must be the ten-fold crime of killing. Killing one hundred persons is hundred times as wrong. It must be the hundred-fold crime of killing. About this, all noble men know and condemn and say that it is wrong. But when it comes to committing the great wrong of attacking a country, they do not condemn. They go along and extol it. They say it is right ... We can tell that all noble men of this world are seriously mixed up in their ability to tell the right from the wrong.

[War of aggression v War of retribution]

5. Shang Dong [Upholding uniformity]

In the beginning, when people started to appear, punishment and governance were not yet in place. Everybody had his own standard of what is right and what is wrong ... The whole world was in a chaos just like the animal world.

[In such condition, there is no place for Industry; because the fruit thereof is uncertain: and consequently no Culture of the Earth; no Navigation, nor use of the commodities that may be imported by Sea; no commodious Building; no Instruments of moving, and removing such things as require much force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society; and which is worst of all, continuall feare, and danger of violent death; And the life of man, solitary, poore, nasty, brutish, and short. - Hobbes, Leviathan, ch. 13.]

[The Heaven, therefore, installed the Son of Heaven, who then installed three grand dukes, who then installed the feudal rulers (kings), who then installed regional governors, who then installed village chiefs.]

The Son of Heaven then proclaims to the people of the world, ... 'Report to your superior.' The village chiefs then proclaim to the villagers, `If you hear something good or something bad, you shall report to the regional governor.' [In this manner, intelligence can be gathered and] the regional governor can obtain uniformity of what is right and what is wrong. The region is then governed. The regional governor proclaims to the people of the region, 'When you see or hear something good or something bad, you shall report to the feudal king.' [In this manner,] the king can obtain uniformity of what is right and what is wrong. The kingdom is then governed. The king proclaims to the people of the kingdom, 'When you see what is good for the kingdom or what is bad for the kingdom, you shall report to the Son of Heaven.' The Son of Heaven can then obtain uniformity of what is right and what is wrong. The whole world is then governed.

When a ruler upholds the uniformity of the opinion, the ruled dare not criticise. What the ruler affirms to be right is bound to be right. What the ruler confirms to be wrong is bound to be wrong. If you wish to purge bad discourse, study the good discourse of your ruler. If you wish to purge bad deeds, study the good deeds of your ruler. The ruler of an area must be the talented man of the area. When the people of the area emulate him as the model, the area is well governed.

The ruler obtaining intelligence about the ruled, this is what governing is about. Only when the uniformity of right and wrong is thus upheld, can the governing be properly done. If there persists discord as to what is right and what is wrong, parties and cliques will appear.

However, when the uniformity is achieved all the way up to the Son of Heaven, but not up to the Heaven itself, a disaster will strike.

[cf. Lun Yu, 3.16, 13.23 ('A noble man seeks harmony but not uniformity. The petty and the lowly seek uniformity but not harmony.')]
[cf. Lun Yu, 3.9 子曰：「夏禮，吾能言之，杞不足徵也；殷禮，吾能言之，宋不足徵也。文獻不足故也，足則吾能徵之矣。」]

6. Tian Zhi [The will of Heaven]

[天志上, 1] If a person residing in a household commits a crime against the head of the household, the culprit can escape to a neighbouring household. ... If a person residing in a state commits a crime against the head of the state, the culprit can escape to a neighbouring state. ... Now, everybody resides in this world under the Heaven. A person who commits a crime against the Heaven has nowhere to escape to. Heaven sees everything clearly. [cf. Lun Yu, 3.13 獲罪於天，無所禱也]

[天志上, 2] Then, what does Heaven desire? What does Heaven abhor? Heaven desires rightness; Heaven abhors crookedness. ... How do I know? If there is rightness in this world, all live. If there is no rightness, all die. If there is rightness, wealth ensues. If there is no rightness, poverty ensues. If there is rightness, there is order. If there is no rightness, there is chaos. Heaven, however, desires life and abhors death; desires wealth and abhors poverty; desires order and abhors chaos. As this is [obviously?] right, I know that the Heaven desires rightness and abhors crookedness.

Only rightness can put things right. [cf. Lun Yu, 2.19 舉直錯諸枉，則民服] You may not follow the inferior to put the superior right. You must follow the superior to put the inferior right. The stupid and base people cannot correct the noble and intelligent people. The latter can correct the former. This is how I know that rightness does not come from the stupid and base. It comes from the noble and intelligent. Then, who is noble and intelligent? Heaven is noble; Heaven is intelligent. This is how I know that rightness comes from the Heaven.

[天志中 6] Now, Heaven reciprocates its love to the whole world. ... I know Heaven's love for the people is great. This is because he laid out the sun, the moon and the stars and guides them brilliantly; he created the four seasons and leads them in order; he makes the snow, frost, rain and dews fall so that five grains and hemp can grow; he lets the people harvest them so that these materials can benefit them; he made the mountains, rivers and valleys; and he disposes and propagates all things therein. He superintends the people's conducts good and bad. He installs the kings, dukes, counts, viscounts to rule the people. He rewards the talented; punishes the violent. He provides the metal, wood, birds and animals in abundance. He tends five grains and hemp so that people can have them as food and clothes. Of old until now, things have always been like this. Now, imagine the same in human relationship. A father graces the son with love. He expends all his might and single-handedly endeavours to benefit the son. The son grows and does not render unto the father the things that are father's. [Matt. 22.21] All noble men of the world will say that it is immoral and blasphemous.

[天志上, 7] Mo Zi said, 'I have the Will of Heaven just as a wheelwright has the gauge; just as a carpenter has the square. Wheelwrights and carpenters take the gauge and the square; they measure wheels and angles of the world and say, ``This is correct.'' ``This is not correct.'' These days, scholars and rulers have produced so many books. Their arguments are inexhaustible. Grand dukes have their theories, small scholars have their theories. As far as ethical integrity and rightness are concerned, however, they are all way off the mark. How do I know? I know because I have obtained the brightest measure of this world and measure them.'

[天志下, 8] 天之志者，義之經也

[cf. Shi Jing [Odes], Huang Yi]
The Lord spoke to the king Wen,
'I have bright virtue in me
But my voice is not loud, my appearance is not striking
My whip is not long, my lash is not thick
You won't see me, you won't know me
Follow my rule.'

7. Ming Gui [Proving the existence of ghosts]

[Why is the whole world now in a chaos?] This is because everybody is in doubt as to the existence or non-existence of ghosts and spirits. Nobody is clear about the ability of the ghosts and spirits to recompense the talent and punish the violent.

The way to investigate the existence or non-existence of a phenomenon is to see whether many people have actually witnessed or heard it. A mere account that a certain this saw it or a certain that heard it will not be enough.

Those who insist on non-existence of ghosts say, 'So many people claim to have seen or heard the ghosts and spirits. But who exactly have done so?' Mo Zi says, 'In fact, many people saw it together, heard it together. Du Bo is the case in point ...'

Those who insist on non-existence of ghosts say, 'This is no more than many people's account of what they saw or heard. Is it enough to settle the doubt? How can a man who aspires to be a noble man of this world can be so gullible as to believe many people's account of what they saw or heard?' Mo Zi says, 'If many people's account of what they heard or saw is not enough to believe, not enough to settle the doubt, we won't know what the ancient sage kings Yao, Xun, Yu, Tang, Wen, Wu were like. Then, how can you say that they are to be emulated? Those who are above average all agree that the sage kings of the previous three dynasties are good enough to be emulated. [In numerous books which record their deeds, however, we may see that] they all believed in the existence of ghosts and spirits. They all served them well. Those who insist on the non-existence of ghosts go against the practice of the sage kings. Going against the practice of the sage kings is not the way of a noble man.'

Those who insist on non-existence of ghosts say, 'If the intention is not genuine, [offering sacrifice to the ghosts] is merely harming the interest of family members. Would such a practice make a respectful son?' Mo Zi says, `[In most cases, the sacrifice will be for the ghosts of one's deceased parents or relatives.] If these ghosts should be there, it is to offer food and drinks to one's parents and relatives. Is it not a great benefit? Even if these ghosts should not be there, the expenses of offering sacrifices are not wasted because family members and village people can all eat and drink. Through these occasions, people can get together and rejoice resulting in good bonding of the village people.'

Those who insist on non-existence of ghosts say, `Ghosts and spirits simply do not exist. That is why you should not offer food, drinks and sacrificial animals. It is not that I cherish the food, drinks and sacrificial animals. I simply do not see what can be gained.' This is against the books of the sage kings, against the deeds of respectful sons.

[cf. Lun Yu,
11.12 Ji Lu asked about serving spirits and ghosts. The Master said, ‘While we haven’t manged to serve human beings, how could we serve ghosts?’ ‘May I then ask about human being’s death?’ The Master said, ‘We don’t even know about life; how can we know about death?’
7.21 子不語怪，力，亂，神。
2.24 The Master said, 'If you are not awe-inspired by ghosts, offering sacrifice to them is a flattery.’ 子曰：「非其鬼而祭之，諂也
7.35 The Master was ill. Zi Lu wanted to pray. The Master said, ‘Do you have the phrase?’ ‘Yes,’ said Zi Lu, ‘in an obituary, it is said, “I pray for thee, to the spirits of the above and of the below, with reverence ...
”’ The Master said, 'I have been praying like that for a long while already.’

8. Fei Ming [No Fate]

[Some say that there is the fate; some say that there is no fate.] If many people saw or heard it, we may know that there is the fate. If not, we may know that there is no fate. As none of the people have ever seen or heard the fate, we may conclude that there is no fate. If the base people are not to be trusted, why not observe the feudal lords' account or sayings? Again, none of the feudal lords have ever heard the sound of the fate, seen the shape of the fate. Let us then observe the affairs of the sage kings.

[Whether there was a good government or a bad government depended on the ability of the ruler. So there was no fate. Only the tyrants had claimed the fate. But the sage kings have all vanquished them. In their good reign, all said that it was due to their effort.]

[Why do people work hard? If they don't, they will lose the benefit of good government, peace, wealth, honour, prosperity, warmth, and a full belly. If they should believe in the fate, who would work hard?]

Noble men of the world who wish to promote the interest of the world and remove the harm of the world should condemn the theory of fate.

[cf. Lun Yu, 9.5 The Master was menaced in Quang. He said, ‘King Wen being long dead, do I not embody civilisation (wen) now? If Heaven is going to forsake that civilisation, my death will result in a world without the civilisation. If Heaven is not going to forsake the civilisation, what can the people of Quang do to me?’ 子畏於匡。曰：「文王既沒，文不在茲乎？天之將喪斯文也，後死者不得與於斯文也；天之未喪斯文也，匡人其如予何？」]

[cf. Sivaka-sutta: One day ... Moliya-Sivaka asked Buddha, `Oh! Venerable Gautama, there are the religious and the bramans who hold this view, ``All feelings joyful, sorrowful and neutral of an individual are the result of the actions which the person committed in the past.'' What say you, Venerable Gautama?' Buddha said, `Oh! Sivaka, there are also feelings which arise because of the physical condition (three kinds of humour - pitta semha, vata - and their combination). The existence of these feelings is generally recognised by people as truthful. The religious and the bramans who say ``All feelings joyful, sorrowful and neutral of an individual are the result of the actions which the person committed in the past'' go too far from the facts recognisable by personal experience and from the facts generally admitted by people. There are also feelings which arise because of the seasonal changes. ... There are also feelings which arise because of irregular events. ... There are also feelings which arise because of sudden accidents. ... There are also feelings which arise because of maturation of actions.']

9. Fei Ru [Against Confucians]

Throughout summer, they beg barley and rice. When five grains have all been harvested, they go after big funerals. They bring along their children and relatives to the funeral and bloat out. A few funerals will be enough to get them going. At the expense of other's family, they fatten themselves. Relying on other's field, they promote themselves. If a rich man has a funeral, they go crazy with joy and say, `This is the beginning of good food and good clothes!'

Jing Gong of Qi asked An Ying, `What is Confucius like?' [After much hesitation,] An Ying replied, `Kong Qiu contemplates deeply, schemes thoroughly and supports the rebels. He thinks elaborately, knows exhaustively and does evil things. He encourages the subordinates to usurp the superior, teaches the ministers to kill their boss. This is not a wise man's deeds. He enters a country and sides with the rebels. He is not among the right sort of people. He knows when people are disloyal and quickens the rebellion. This is not ethical integrity nor rightness. After he flees, he plots. After he escapes, he criticises. His practice of rightness is not clear to the people. His plots and contemplations are not in common with the rulers and their ministers.

An Ying said, `Confucians are haughty and self-righteous. You cannot take them [as the example] to teach the people. They like music and decadent. You cannot let them rule the people. They believe in fate and lazy in doing the job. You cannot let them keep their post. They take funerals seriously and grief endlessly. You cannot have them pity the people. They wear their clothes in all pomp and pretend that they are humble. You cannot let them guide the people.'

[An Ying continues,] `Kong Qiu was in trouble caught between Ca and Chen. For ten days on end, he was surviving on vegetable porridge without even a broken grain of rice in it. Zi Lu finally managed to serve pork. Kong Qiu did not even ask where the meat came from and ate it. Having stripped someone's clothes, Zi Lu managed to serve wine. Kong Qiu did not even ask where the wine came from and drank it. [Later] Ai Gong received Kong Qiu. He did not sit down complaining that the cushion was not properly laid out. He did not eat complaining that the meat was not properly cut. When they came out, Zi Lu asked, `How come you are so different from when we were caught between Chen and Ca?' Kong Qiu said, ``Come closer. I will tell you. You and I now need to practice rightness. When you are starving and hard up, you should not hesitate to grab anything and everything. When you can relax and your belly is full, you put up some appearances.'' Now, who can surpass him in the art of self-embellishment using dirty tricks and crooked hypocrisies?'

[cf. Lun Yu,
3.18,The Master said, "If you serve your boss in full compliance with Li, people will say that you are a flatterer. 子曰：「事君盡禮，人以為諂也。」
1.1: `People don't understand you and you don't mind; you sure are a noble man!']

10. Gui Yi [Endearing rightness] - yi (rightness) or li (benefit)?

Suppose a man offers you a hat and shoes. In return he proposes to chop your hands off. Would you agree? You wouldn't. Because a hat and shoes are not as dear as your own limbs. Suppose a man offers you the whole world. In return, he proposes to take your life. Would you agree? You wouldn't because the whole world is not as dear as your life. Over one word, however, people kill each other. This shows that rightness is dearer than one's own life. Nothing, therefore, is dearer than rightness.

Noble men of the world treat rightful scholars with even less esteem than they treat a coolie carrying cereal. Imagine this. A coolie has rested on the roadside. Now he wants to stand up again with his load of cereal. But he is having difficulty. A noble man sees this. Without any regard to the age, low or high status of the person, he will help him to stand up. Why? `Because it is right', he says. These days, noble men who [supposedly] practice rightness transmit the Way of ancient kings only to preach; they do not do what they expound. Rather, they deny and defile it. This is why I say noble men of the world treat rightful scholars with even less esteem than they treat a coolie carrying cereal.

Mo Zi said, `Merchants go to all corners. To sell their wares in markets, they move about with passport. In spite of the difficulties of crossing the check-points and toll-gates, in spite of the danger of thieves and robbers, they do it. Scholars, however, can remain seated and discuss rightness. There is no difficulty of crossing the check-points and toll-gates, no danger of thieves and robbers. [The comfort] is incomparable to the discomfort of having to move about with passport. Still, they don't do it. That is, scholars cannot calculate the benefit while merchants even investigate it.

When I say a blind man does not know black and white, I do not mean that he does not know the name. I mean he does not know what the name refers to. ... I say noble men of the world do not know ethical integrity. They do know the name but they do not know what it refers to.

Refuting my argument with your argument is just like hitting a boulder with an egg. Use all the eggs in the world. The boulder will still be right [there]. You cannot even make a dent.

[cf. Lun Yu, 4.16: `Noble men always go by rightness; the petty and the lowly always go by benefit.']

Fundamentalist fanatics?

Reading:
Fung Yu-lan, A history of Chinese philosophy, 2nd edn. (Princeton, 1952) vol.1, ch. 4, pp. 43-75

Select passages from Lun Yu

KO Thompson, "The Archery of" Wisdom" in the Stream of Life:" Wisdom" in the Four Books with Zhu Xi's Reflections", Philosophy East and West 2007

H Rosemont, R Ames, "Family Reverence (xiao 孝) as the Source of Consummatory Conduct (ren 仁)" Dao, Vol. 7, No. 1, 9-19

1. What are we constrained by?
   
   

   He broadens me with learning and he tightens me with Li (Lun Yu, 9.11, 博我以文，約我以禮。).

   
   
2. Irrational - rational - supra-rational ?
   
   
   
   • You mean, the chap who does things knowing that they are not achievable? (Lun Yu, 14.38)
   
   
   • A noble man always goes by the rightness; the petty and the lowly always go by benefit and loss (Lun Yu, 4.16).
   
   
   • Lin Fang asked Confucius, `What is the ultimate root of Li?' Confucius replied, `Blimey! That is a good question! When it is about provisions, to be genuinely frugal; when it is about funeral, to have a genuine sentiment of poignancy. That is the root of Li' (Lun Yu, 3.4).
   
   
   
   

   * Bodhisattva should produce `an unsupported thought, ...a thought unsupported by sights, sounds, smells, tastes, touchables or mind-objects.' -- The Diamond Sutra, ch. 10c (Edward Conze, Buddhist Wisdom Books, pp. 47-48).

3. Li 禮
   
   
   • The Zhou dynasty modelled itself upon the two preceding ones. What a splendid civilization! I follow Zhou (Lun Yu, 3.14).
   • To follow the Li, the cap should be of Hemp. But nowadays everybody uses silk cap and it is economical. I follow the general trend. To follow the Li, one ought to bow before climbing up the steps. Nowadays, everyone bows after climbing up the steps, which is rude. Going against the general trend, I follow the proper practice of bowing beforehand (Lun Yu, 9.3).
   • A noble man does not worry, is not ashamed. When you look at yourself and find no blemish, why would you worry, why should you be ashamed? (Lun Yu, 12.4)
   • You do not mind if people don't understand you; boy, you sure are a noble man! (Lun Yu, 1.1)
   • Li, Li! Do you think I am talking about jade or silk? (Lun Yu, 17.11)
4. Ren 仁
   
   
   • Soothing words and pleasant face; there can hardly be any ren. Stiff, firm, crude, with few (awkward) words; they are closer to ren (Lun Yu, 1.3, 13.27).
   • Only the man with ren can truly love someone and truly hate someone Lun Yu, 4.3).
   • To overcome oneself and bring oneself back to Li, this is what ren is all about (Lun Yu, 12.1).
   • A man of moral fortitude (ren) is bound to have courage' (Lun Yu, 14.4).
5. Subjectivity
   • The original mind (with which we are born) is more or less the same; what we acquire afterwards tends to make us different (Lun Yu, 17.2).
   • When Buddha was staying in a city called Kesaputta, members of Kalama clan asked him: `Various religious leaders and brahmans come to this city and they all explain how wonderful their teachings are and how useless are the others. We have doubts as to which of those teachers are telling the truth and which are lying.' Buddha replies: `You are indeed right to have doubt because your doubt is about a thing which is doubtful in the first place. Do not be carried away by those stories, religious traditions, or by what you have heard elsewhere. ... But when you yourself know that certain things are good and that these laudable things are practised by wise men, and that when one practises them, they lead to satisfactory results, then take those things and practise yourself.' -- Kalama-sutta, Anguttara-nikaya (Pali Text Society edition) vol.1, pp. 187-91.
6. Xue 學
   • Learning will make you overcome the narrow-mindedness (Lun Yu, 1.8).
   • Studying without thinking produces false knowledge, thinking without studying is dangerous (Lun Yu, 2.15).
   • Zi Xia said, `If you know better than knowing, overcome appearances, support your parents with all your force, support your boss with all your power, socialise with your friends with amity and abide by your words, who can say that you are not learned? I will certainly say that you are learned.' (Lun Yu, 1.7)
   • Listen, You (Zi Lu's name), do you want me to tell you what knowing is? To know that you know, to know that you do not know, that is what knowing is (Lun Yu, 2.17).
   • To learn and to apply your learning at the right moment, isn't it wonderful? (Lun Yu, 1.1)
7. Zhong 中
   • I know something about music. You need to know when to start, when to pause, when to sing in polyphony, when to sing in unison, when to go the opposite way, when to come back and move in parallel, when to hit hard, when to strum gently. That's how you play (Lun Yu, 3.23).
   • Music, music! Do you think I am talking about drums and bells? (Lun Yu, 17.11)
   • For a noble man, `balanced' means to know the right timing. For the petty and the lowly, `balanced' means to have no shame, no fear. - Zhong Yong (Middle Way and Constant Practice), ch. 1.
8. Yong 庸
   • Some know as soon as they are born, some know after some learning [like Confucius himself], some know with great difficulty. But there is no difference in knowing. Some carry out their practice with ease, some do it with profit, some do it with great effort and resolute determination. But there is no difference in carrying out the practice (Zhong Yong, ch. 19).
   • A noble man does not bend (forget about) his moral fortitude even while eating; even in extreme haste, even in extreme peril, he will act always with moral fortitude (Lun Yu, 4.5).
   • And how, O Vasettha, a disciple has the attention and comprehension? This is how, Vasettha. In going and coming, the disciple acts with attention and comprehension. In looking in front and looking around, he acts with attention and comprehension. In stretching and bending his limbs, he acts with attention and comprehension. In eating, drinking, chewing and tasting, he acts with attention and comprehension. In defecating and in urinating, he acts with attention and comprehension. In standing up, in sitting down, in sleeping, in waking up, in talking, in keeping quiet, he acts with attention and comprehension.' -- Tevijja-sutta, GanakaMogallana-sutta
9. The Way (道 Dao) forward
   
   

   If I understand the Way [attain the Enlightenment] in the morning, it wouldn't matter if I should die in the evening (Lun Yu, 4.8).

   
   

Reading:
Liu, Yongping, Origins of Chinese law, ch. 1 (file size: 2.1 Mb), ch. 4 (file size: 2.0 Mb)
Book review (see pp. 650-653 of this file)
Select texts from Shu Jing
Historical background
Shu Jing, Kang Gao
Regarding the feudal state of Wei 衛 (which was placed under the rulership of Kang Shu), see this.

1. Human sacrifice

Yin dynasty	Wu Ding(1254-1197), about 60 years	Zu Geng - Wen Wu Ding (1206-1110), about 90 years	Di Yi - Di Xin (1121 - 1041), about 60 years
Human sacrifice	5418	1950	75
Highest number of humans killed per ceremony	1000	300	30
Number of tortoise shells where human acrifice is mentioned.	379 pieces	277 pieces	32 pieces

Huang Zhanyue, A General Treatise on Ancient Human Sacrifice (古代人牲人殉通论)

2. Pre-Zhou punishments (wu xing 五刑, etc.)

• Emperor Xun showed proper punishments. He used banishment to mitigate five punishments, used whips as official punishments, used sticks for educational punishments, used fine for redemption punishments. If the offence was not deliberate and resulted from a mishap, pardon was granted. If the offence was deliberate, the offender was executed. (Shang Shu, Xun Dian 6) 象以典刑，流宥五刑，鞭作官刑，扑作教刑，金作贖刑。眚災肆赦，怙終賊刑 (尚書, 舜典 6)
• Emperor Xun said, "Listen Gao Yao.  Barbarian tribes are harrassing us and there are robbers, murderers, insurgents and traitors. As the judicial officer, you should apply five punishments to ensure their submission." (Shang Shu, Xun Dian 12) 帝曰 皋陶，蠻夷猾夏，寇賊姦宄。汝作士，五刑有服 (尚書, 舜典 12)
• According to the law of Yin, anyone who throws ashes on a public road shall have his hands cut. (Han Fei Zi, Nei Zhe Shuo I, 33) 殷之法，棄灰于公道者斷其手 (韓非子, 內儲說上 33)
• People of Yin used the five punishments to deal with traitorous crimes. By inflicting mutilation, they admonished evil deeds. (Han Shu, Dong Zhong Shu Zhuan 19) 殷人執五刑以督姦，傷肌膚以懲惡 (漢書, 董仲舒傳 19)

3. Textual evidence of Shang punishments

• If you do not obey the words which I have spoken, I will put you and your children to death; and you will find no forgiveness.  (Shang Shu, Tang Shi [admonitions of king Tang of Shang addressed to the members of Shang zu]) 爾不從誓言，予則孥戮汝，罔有攸赦 (尚書, 湯誓 2)

• Without regard to whether you are close to me or not, those who commit crime shall be executed and those who demonstrate good deeds shall be praised. If the country prospers, it is thanks to you all. If the country does not prosper, it is all due to my fault in administering the punishments (Shang Shu, Pan Geng [the speech of king Pan Geng of Shang to his people]) 無有遠邇，用罪伐厥死，用德彰厥善。邦之臧，惟汝眾；邦之不臧，惟予一人有佚罰 (尚書, 盤庚上 7)

4. Shang society

• zu (族): gens? cf. Marcus Tullius Cicero, Gaius Julius Caesar, Marcus Licinius Crassus (nomen gentilicium)

• zu yi (族邑)

• zu yin (族尹)

• zu customary law, clan law

5. Shang and its neighbours

• Shang: a loose federation of numerous zu (clans) with blood ties

• Fang: neighbouring "states", with no blood tie with clans making up Shang

6. Zhou punishments (wu xing, continued)

• If there are doubts, five punishments should be commuted to five fines. If there are doubts, five fines should also be commuted. (Shang Shu, Lu Xing 7) 五刑之疑有赦，五罰之疑有赦 (尙書, 呂刑 7)
• When Tatooing should be commuted, fine of 100 Huan must be applied. When cutting off the nose is commuted, the fine should be doubled. When cutting off the foot is commuted, the fine should be more than double depending on the seriousness of the offence. When castration is commuted, fine of 600 Huan must be applied. When capital punishment is commuted, fine of 1000 Huan should be applied. (Shang Shu, Lu Xing 7)
• In total, 3000 offences are subject to five punishments. 五刑之屬三千 (Shang Shu, Lu Xing 7)

7. Punishments (刑) and virtue (德)

• Officers controlled the people with appropriate punishments and taught them to uphold virtues with respect (Shang Shu, Lu Xing 3) 士制百姓于刑之中，以教祗德
• He occupies the high throne with dignity, shining brightly to the four corners of the kingdom. He does not fail to abide by the virtues and thus ensures the appropriate application of punishments. He thus leads the people so that they can all be upright (Shang Shu, Lu Xing 3) 穆穆在上，明明在下，灼于四方，罔不惟德之勤，故乃明于刑之中，率乂于民棐彝
• Those who harm others would be placed in remote prison with hard labour. With clear punishments, let them have a sense of shame. 凡害人者，置之圜土而施職事焉，以明刑恥之(周禮, 秋官司寇 57)
• A noble man uses punishments in clear and prudent manner 君子以明慎用刑 (易經, ䷷旅, 象傳)

8. Tian Ming Mi Chang 天命靡常 (靡 =無)

• 尙書, 湯誓 (Tang Shi) King Tang of Yin’s speech (on the occasion of attacking Jie 桀 of Xia 夏)

• 王曰：「格爾眾庶，悉聽朕言，非台小子，敢行稱亂！有夏多罪，天命殛之。
  King said, “Come, ye multitudes of the people, listen all to my words. It is not I, the little child, who dare to undertake a rebellious enterprise; but for the many crimes of the sovereign of Xia, Heaven has given the charge to destroy him.

• 夏氏有罪，予畏上帝，不敢不正。(the sovereign of Xia is guilty, and as I fear the emperor in Heaven, I dare not but punish him.)

• 尚書, 泰誓 (King Wu 武王 of Zhōu周’s speech on the occasion of attacking King Zhòu 紂王 of Yin 殷)

• 商罪貫盈，天命誅之。予弗順天，厥罪惟鈞。The iniquity of Shang is full. Heaven gives command to destroy it. If I did not obey Heaven, my iniquity would be as great.)

• 惟天惠民，惟辟奉天'Just as Heaven showers benefits to people, the sovereign should reverently carry out Heaven's commands. )

• 古人有言曰：『撫我則后，虐我則仇。』獨夫受洪惟作威，乃汝世仇。The ancients have said, "He who soothes us is our sovereign; he who oppresses us is our enemy." This solitary fellow Shou, having exercised great tyranny, is your perpetual enemy. ) King Zhou (紂王) = Shòu (受) or Shòudé (受德)

• 詩經, 文王
  穆穆文王、於緝熙敬止。
  Profound was king Wen; Oh! continuous and bright was his feeling of reverence.
  假哉天命、有商孫子
  Great is the appointment of Heaven! There were the descendants of [the sovereigns] of Shang; -
  商之孫子、其麗不億
  The descendants of the sovereigns of Shang, Were in number more than hundreds of thousands;
  上帝既命、侯于周服
  But when the ruler in Heaven gave the command, They became subject to Zhou.
  侯服于周、天命靡常
  They became subject to Zhou. The appointment of Heaven is not constant.
  ...
  上天之載、無聲無臭。
  The doings of high Heaven, Have neither sound nor smell.
  儀刑文王、萬邦作孚。
  Take your pattern from king Wen, And the myriad regions will repose confidence in you.(孚=信)

Leviathan, ch. 21

The liberty whereof there is so frequent and honourable mention in the histories and philosophy of the ancient Greeks and Romans, and in the writings and discourse of those that from them have received all their learning in the politics, is not the liberty of particular men, but the liberty of the Commonwealth: which is the same with that which every man then should have, if there were no civil laws nor Commonwealth at all. And the effects of it also be the same. For as amongst masterless men, there is perpetual war of every man against his neighbour; no inheritance to transmit to the son, nor to expect from the father; no propriety of goods or lands; no security; but a full and absolute liberty in every particular man: so in states and Commonwealths not dependent on one another, every Commonwealth, not every man, has an absolute liberty to do what it shall judge, that is to say, what that man or assembly that representeth it shall judge, most conducing to their benefit. But withal, they live in the condition of a perpetual war, and upon the confines of battle, with their frontiers armed, and cannons planted against their neighbours round about. The Athenians and Romans were free; that is, free Commonwealths: not that any particular men had the liberty to resist their own representative, but that their representative had the liberty to resist, or invade, other people. There is written on the turrets of the city of Luca in great characters at this day, the word LIBERTAS; yet no man can thence infer that a particular man has more liberty or immunity from the service of the Commonwealth there than in Constantinople. Whether a Commonwealth be monarchical or popular, the freedom is still the same.

...

To come now to the particulars of the true liberty of a subject; that is to say, what are the things which, though commanded by the sovereign, he may nevertheless without injustice refuse to do; we are to consider what rights we pass away when we make a Commonwealth; or, which is all one, what liberty we deny ourselves by owning all the actions, without exception, of the man or assembly we make our sovereign. For in the act of our submission consisteth both our obligation and our liberty...

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