关键词: 法律儒家化, 卡迪司法, 嵌入式规范结构, 依法裁判

Abstract: The proposition of Confucianization of law put forward by QU Tongzu is inherently related to Marx Weber's evaluation of traditional Chinese law concerning Khadi Justice. Confucianization of law was the basis for the formation of the Chinese Khadi Justice model. The result of Confucianization of law was the fusion of ritual and law, and the formation of the embedded normative structure of "behavior→rite/crime→moralization/pu nishment". In practice, this normative structure could be transformed into the four secondary forms,namely, "behavior→rite→moralization", "behavior→rite→punishment", "behavior→crime→moralization",and "behavior→crime→punishment". The introduction of rituals into law helped instill Confucian principles into legal provisions, therefor, the implementation of law could be regarded as upholding Confucian ideas. Legalist Confucianism did not exclude legal adjudication in the form of "behavior→crime→punishment", and was open to the other three secondary structures. The Chinese judicial practice was quite different prior to the Confucianization of law. Judicial practice used to apply strict formal trials, and laws were used to exclude any influence of ethics; however, after the Confucianization of law, judicial practice possessed the elements of both formal and substantive trials, and the openness of the embedded structure made it possible to be trialed by non-legal means. As a result, all four secondary forms could be found in judicial practice. Khadi Justice had a high degree of political acceptance and judicial practicality, however, it could not completely replace formal trials. While traditional Chinese judiciary presented duality with strong Khadi Justice characteristics, this feature did not sum up all. Confucianization of law was closely related to the change of the knowledge structure of judicial officials, and the flexible structure of legal norms. These elements jointly promoted the emergence of a judicial model that integrated sentimental, rational and legal judgments, which, in essence, was a concrete form of the embedded normative structure.

Key words: the Confucianization of law, Kadi Judiciary, the embedded normative structure, the legal adjudication