| The principle of convicting on the basis of the Mourning System was first established in the law of the West Jin Dynasty, and has been retained in and improved by various laws of subsequent dynasties. Although this principle incorporates some Confucian provisions into the law, it nonetheless runs counter to the spirit of Confucianism. To be specific, Convicting on the basis of the Mourning System violates the principle of Confucianism that people’s behavior should be guided by morality and etiquette. In this sense, the Mourning System challenges the fundamental position of Confucianism regarding the relationship between etiquette and justice, and its one-sided emphasis on the obligation of juniors to seniors is inconsistent with the Confucian family ethics. The spirit of Confucianism and its family ethics in line with social reality, as well as the fairness and justice of law, are seriously distorted by the application of the principle of convicting on the basis of the Mourning System.The apparent reason for applying the principle of convicting on the basis of the Mourning System is to maintain the patriarchal power associated with monarchial power, since absolute monarchial power requires absolute patriarchal power. The underlying reason, however, is to force the family to bear the responsibility of self-restraint and self-management, which is beneficial for the social order of a monarchy with centralized power. |
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