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The Hundred Year Myth of 'Punishment Starts in the Army': A Review and Reflection on an Academic History

Abstract: As one of the common theories in legal history, the "punishment originates from the military" theory holds that ancient Chinese law originated from wars between blood related groups in ancient times. This theory is fundamentally different from the ancient concept of "unity of military and punishment". The theory of 'punishment begins in the military' was born in the modern context of the prevalence of social Darwinism and racial thought, and was based on the ancient racial war scenes associated with the Chinese nation. The contemporary theory of 'punishment begins with the military' basically continues the core of the modern theory of 'punishment begins with the military', but downplays the narrative background of racial war. The theory of 'punishment begins with the military' has theoretical premises that are pseudo scientific in nature, improper use of core historical materials, insufficient attention to ancient literature and academia, formalistic methods in comparing legal history, inconsistent observation focus in the process of comparing China and the West, and excessive criticism of ancient people in terms of value orientation. The theory of 'punishment begins with the military' is a byproduct of the stress response of modern scholars after encountering the highly Eurocentric Western view of racial history. In the future research on the origin of Chinese law, there are sufficient reasons to bid farewell to the theory that "punishment begins with the military" and make Chinese contributions to world academia with a calm attitude.

Keywords: "Punishment begins with the military"; Speaking of the West; Origin of Chinese Law

1. Introduction

The classic saying found in the vast majority of contemporary Chinese legal history textbooks is' punishment begins with the military '. It transcends the status of general discourse, approaching academic consensus, and even the self-evident premise in legal history narratives. The standard content of this theory is as follows: ancient Chinese law, with criminal law as its main content, originated from military conflicts between various blood related groups in ancient times; The ancient punishment mainly based on corporal punishment directly borrowed from the use of metal weapons on the battlefield; Punishment and criminal law were initially used against ethnic groups, but in order to strengthen the necessary discipline and authority for long-term wars, this system was gradually applied within ethnic groups, thus becoming a universal legal order; Influenced by this, ancient Chinese law has long exhibited characteristics such as oppression and cruelty.

There have been sporadic doubts about this theory in contemporary academia, but almost no scholars have examined the history of the "punishment begins with the military" theory itself. If we do not sort out the initial appearance, development and subsequent solidification of this theory, we will find it difficult to gain a full understanding of its theoretical loopholes, material limitations, and blind spots. This article indicates that the theory of "punishment begins in the military" originated from an extremely unique modern ideological and political context that contemporary legal historians could hardly imagine, and has significant flaws in its scientific validity. Understanding the century old academic and political myth that 'punishment begins with the military' not only helps to reflect on the reasons for its long-term dominance in legal history, but also provides sufficient evidence for future abandonment and opening up new horizons for early Chinese legal research.

2. The theory of "unity of military and punishment" from the perspective of classical Tian Dao view

The theory of 'punishment begins in the military' is far from ancient, it is essentially a product of the academic, ideological, and political context of the late Qing Dynasty and the Republic of China. But this theory is not completely fabricated out of thin air. It has some superficially similar counterparts in ancient classics, namely the "unity of military and criminal" theory.

For the first time in the "Lu Yu" and "Jin Yu" sections of the pre Qin historical book "Guoyu", a relatively clear expression of "the unity of military and punishment" appeared. In the book "Lu Yu", the great official Zang Wenzhong of the state of Lu provided a famous statement about the relationship between military and punishment: "There are only five punishments... for severe punishments, armor is used, followed by axes and axes, for moderate punishments, knives and saws are used, and for light punishments, whips are used to intimidate the people. Therefore, for severe punishments, the fields are vast, and for minor punishments, the cities and courts are powerful. This passage is not so much describing the origin of punishment as emphasizing that "armor soldiers" (if understood as war) are also a form of punishment (i.e. "great punishment"). Moreover, the use of armor, axes, knives, saws, drills, and whips constituted the five legitimate punishments that could be used under the Zhou Dynasty's ritual and legal order, while the use of other violent means would be considered illegitimate. Based on the context, it can be clearly stated that Zang Wenzhong claimed to have "only five punishments" because at that time, Duke Wen of Jin detained Wei Chenggong, who had once been disrespectful to Jin, but did not use appropriate punishment to deal with him. Instead, he used poisoning methods that did not belong to the five punishments mentioned above (but failed to poison him to death). Zang Wenzhong further believed that the extra legal punishment imposed by Duke Wen of Jin was not legitimate, and requested Duke Xi of Lu to rescue Duke Wei Cheng. In the "Jin Yu", the great minister of Jin, Fan Wenzi, also said on another occasion: "When a man fights, he is punished, and the punishment is wrong. The text here still understands war as one of the punishments, which implies that all punishments, including war, must obey the order of etiquette and law.

On the basis of the pre Qin texts mentioned above, Ban Gu of the Eastern Han Dynasty wrote the "Book of Han: Criminal Law Chronicles", which further stated the strong normative "unity of military and criminal" concept. As is well known, the "Records of Criminal Law" first extensively describes the military system from ancient times to the Han Dynasty, and then introduces the evolution of the narrow criminal system. The reason for supporting this system is precisely the traditional Confucian narrative described at the beginning of the "Criminal Law Chronicles" that the sage used ritual and criminal law to establish the order of the world: "The sage, who understands the nature of the world, must understand the hearts of heaven and earth, establish rituals and teachings, legislate and impose punishments, and influence people's emotions, thus creating celestial phenomena and the earth. The punishment here, along with the ritual, has a strong normative meaning: "The Book of Documents states that 'there is ritual in the heavenly order' and 'heaven punishes sin'. Therefore, the sage made five rituals based on the heavenly order and five punishments based on the heavenly punishment. Ban Gu subsequently cited the text from the aforementioned "Lu Yu" to indicate that armored soldiers were also a legitimate form of punishment. The legendary military and criminal events of Huangdi's battle against Chiyou, Zhuanxu's Chen Gonggong, Yao and Shun's exile of Gonggong, Huandou, Sanmiao, and Yisheng have also been listed by Ban Gu as classic cases of the use of legitimate punishment in the world order. The recollection of the Xia, Shang, and Zhou dynasties' military system in the Criminal Law Annals, as well as the criticism of frequent military uprisings by rulers during the Spring and Autumn, Warring States, and Qin dynasties, also emphasize that as one of the punishments of the Heavenly Calamity, soldiers should not be abused and should be used with a sense of purpose, and carried out with a sense of rebellion.

Therefore, there is a fundamental difference between the ancient concept of "combining military and punishment" and the contemporary scholar's familiar theory of "punishment begins with the military". At the level of discourse, the theory of "punishment begins in the military" discusses the practical origins of law at the level of factual theory; The ancients did not have such strong historical thinking. The concept of "combining military and criminal forces" attempts to answer normative questions: how should violence such as military and criminal force be placed in an established and mature, even somewhat idealized, world order? In terms of conceptual relationships, the theory of "punishment begins with the soldier" states that the soldier was born before, and punishment is an imitation of the soldier; In the concept of "military punishment integration", the broad and regulated punishment is the superior concept that can govern both the military and the narrow punishment. In terms of the substantive attitude towards violence, the "punishment begins with the military" theory completely allows for the violent nature of war, and believes that criminal law directly originates from the violence of war, thus completely de regulating ancient criminal law itself; The direction of the "integration of military and punishment" concept is rather the opposite. It is a product of the Confucian school (or pioneers of Confucianism) since the pre Qin period, which incorporated war into the order of heaven. In this context, both military and punishment must be restrained by ritual and law, which is also in line with the spirit of Confucian kingship and benevolent governance. Confusing these two theories is not only a misunderstanding of the good intentions of ancient people, but also a betrayal of the ambitions of modern scholars.

Until the Qing Dynasty, scholars still understood the ancient military punishment relationship from the aforementioned perspective. As Wang Tang pointed out, "The Book of Han focuses on punishment but not on soldiers, which is also a case of miscellaneous soldiers in terms of punishment. The saying goes, 'Saints make five rituals based on the order of heaven, and five punishments based on the punishment of heaven. For severe punishments, armor soldiers are used, for moderate punishments, knives and saws are used, and for light punishments, whips are used.' Taking armor soldiers as the severe punishment is the greatest punishment among armor soldiers.

Even in the 20th century, when the theory of "punishment begins with the military" was born, some scholars have made interpretations of relevant classic texts that are in line with the original intention of the ancients. In the 32nd year of the Guangxu reign (1906), Lu Shaoming wrote an article in the "Journal of National Classics" stating: "The military is the greatest form of law... The military is nothing but the law, and it is called the law." Moreover, "the art of war seems unique, but its meaning is the same, nothing more than persuading good and punishing evil, and prohibiting violence and eliminating evil. In 1925, Gong Ergong clearly pointed out the normative ancient meaning of "combining military and criminal punishment": "Both punishment and military are beautiful in law, so in ancient times, military and criminal punishment were not distinguished and belonged to Dali. The Great Punishment used armored soldiers, and Zhang Ying noted: 'Six divisions were used to punish riots.' In ancient times, they regarded execution as punishment, with specific crimes being severe and minor, and specific punishments having varying degrees of severity. In 1936, Liu Yangzhi, who was influenced by the new theory, still pointed out the old-fashioned concept of military punishment: "Punish the minor for war, and punish the major for war. Both are aimed at implementing the purpose of punishing the guilty by heaven, so as to maintain the order of the country. In addition, Gu Jiegang also discussed the phenomenon of no distinction between military and criminal punishment in ancient times, and focused on the official system to investigate the long-term overlapping status of official positions and affairs corresponding to military and criminal punishment. Unfortunately, his argument did not reach the level of righteousness, resulting in a failure to provide a reasonable explanation that conforms to ancient principles for the phenomenon of indiscriminate military punishment.

3. The modern origin and formation of the theory of "punishment begins with the military"

3.1 Background of Thought: Racial Competition, Historical View, and the Western Ethnicity in China

However, regardless of China or the West, the mainstream social trends of the late 19th and early 20th centuries presented a completely opposite picture of de standardization to the Confucian concept of the Way of Heaven. The modern theory of 'punishment begins with the military' draws nourishment from this de standardized social theory. Specifically, the theory of "punishment begins in the military" originated from the historical perspective of racial competition and the context of Chinese national discourse, which were jointly influenced by social Darwinism and racial discourse.

Imagining world history as intense scenes of struggle for survival between different races is a product of the intersection of social Darwinism and racial discourse that prevailed in the second half of the 19th century. As is well known, social Darwinism, founded by British sociologist Herbert Spencer and highly praised and developed by the entire European and American academic community at that time, believed that there is a survival choice competition similar to that in the biological world between individuals and groups, and only those who are most adapted to the environment can win in the competition, while those who are not adapted to the environment are eliminated. When the prevalent so-called ethnology and its underlying racist ideology began to borrow from social Darwinism at the same time, the attention of relevant commentators would focus on the issue of inter racial competition: the most intense survival competition was believed to occur between different races, and only the most adaptable (in a sense, the best) to the environment could win and dominate other inferior races. In the view of the Western intellectual community at that time, the winners in the history of racial competition were clearly the white race, especially the so-called Teutonic race, while non white races had to accept the fate of colonization. It is obvious that this interracial 'heavenly performance' scene is a defense against the imperialist actions of the time, and it can easily cause anxiety and fear among the non Western elite class.

The discourse of racial competition and superiority over inferiority quickly occupied the intellectual territory of the late Qing Dynasty through translations by Yan Fu, Liang Qichao, and others. Yan Fu translated Thomas Huxley's "Tianyan Lun" (1898), systematically explaining the principle of "competition between things" in the biological world and human society. Yan Fu's "Yuan Qiang" (1895) and other political comments directly pointed out the extinction crisis of the Chinese people. Liang Qichao and other like-minded people spared no effort to play up the images of racial competition to arouse countrymen's awareness of hardship, whether during the period of founding the Current Affairs Daily (August 1896 to October 1897) or during the period of serving as the chief teacher of Changsha Current Affairs School (November 1897 to February 1898). The most directly related to this article is that after the failure of the Hundred Days' Reform and his exile in Japan, Liang Qichao systematically explained the world historical view centered on racial struggle in his article "New History" (1902). He believes that history is just about the development and competition of different races, and that sacrificing one's own race leads to no history. The main content of thousands of years of world history is the history of mutual exclusion and survival of the fittest among different races in the form of families, clans, tribes, and nations. He referred to the general theory of ethnology at that time and divided humans into races such as black, red, brown, yellow, and white. Among all races, only yellow and white people can be called the "race of history", and only white people are the "race of world history". After a long period of racial struggle, the current winners are white people (especially Anglo Saxons and Germans): "Today, 90% of the land sovereignty on the earth belongs to white people, and the so-called white people are only Arians, and the so-called Arians are only Teutons. Teutons are the unique masters in modern history.

This scene undoubtedly caused great anxiety among modern Chinese intellectuals and forced them to think hard about countermeasures. Faced with the cultural hegemony of the West at that time, almost no one in the Chinese intellectual community dared to question the pseudo scientific nature of this discourse and the racist ideology behind it. On the contrary, they could only follow the problem consciousness, thinking mode, and even value orientation set by Western academia to think about the following questions: What is the racial attribute of the Chinese nation (mostly referring to the Han ethnic group at that time)? Is the Chinese nation a "superior species" or a "inferior species"? Can the Chinese nation survive in the fierce racial struggle? In this context, the Chinese ethnic group was highly praised and became a popular topic in the academic circles of the late Qing Dynasty and the Republic of China.

The Chinese ethnic group originated from the works of scholars outside the region, but it has developed and grown in modern Chinese academia, and has been given a strong political color. In 1894, French British scholar Terrien de Lacouperie published "Western Origin of the Early Chinese Civilization," which compared the ancient history of West Asia with that of China, proving that the ancient Chinese nation migrated from Babylon. In 1899, Japanese scholar Shirakawa Jiro and Kokuo Tsung Tak co wrote the History of Civilization in ** with reference to Lakbury's works, further citing various historical records and legends to confirm the theory of the origin of the Chinese nation in the west. The above-mentioned works quickly gained attention and dissemination in the Chinese academic community, such as the works of Baihe and Guofu, which were translated into Chinese and published by students studying in Japan, and renamed "History of the Development of Chinese Civilization" (1904).

Influenced by this, Chinese scholars also began to write books and discuss the issue of their own ethnic group's westward migration. For example, Jiang Zhiyou pointed out in the Research on Chinese Ethnicity (1906) that the Chinese people originated under the Kunlun Mountains, and the position of the Kunlun Mountains was "from Caomir in the Congling Mountains, and from Mount Khotan in the east". The most important leader in this national migration was the Yellow Emperor: 'Those who are particularly fond of the Yellow Emperor, if they lead their own people and select their handsome talents, they will launch a large-scale campaign to establish the country in the east.'. The battle between Huangdi and Chiyou is understood as an act of foreign races conquering the local Jiuli tribe. Jiang Zhiyou believed that after the Chinese people entered China, they established a "class system" similar to the Indian caste system. He also used the words "people", "people", "nations" and "barbarians Dijon" in historical records to indicate the racial differentiation at that time. At the end of this book, the significance of this research is pointed out: "On the day when races are tied, we should explain the origin of our species, unite the spirit of our compatriots, and make them dare not feel ashamed of their ancestors, and put their race in a state of inferiority. Therefore, how can we benefit from the preservation and evolution of our race. Liu Shipei's "Chinese Ethnography", created during the same period, presents a stronger nationalistic sentiment. At the beginning of the book, it praises the ancient racial wars: "During the three generations, there were mixed ethnic groups, so the sages taught us to fight against the Di as an immortal achievement. Liu Shipei believed that "the civilization of the world's ethnic groups all began in the Pamirs", and the Han and European people originated here, so they are of the same race, but "one move to the northwest is the people of the Caucasus, and the other move to the southeast is the people of **". After the Han ethnic group entered China, they launched wars of conquest against the indigenous races, and the "Yi" and "Miao people" mentioned in historical records were regarded as foreign tribes that were conquered. The war against foreign tribes did not come to an end until the Warring States period, after which "the rivers and mountains of Yu territory were all under the control of the Han people". At the end of the book, he also paid tribute to the discourse of racial competition: "Today, the great philosophers of the Taixi region have created the theory of natural selection and competition between things. When things compete, things compete on their own. When natural selection occurs, they are suitable for planting. When races are different, competition arises. Those who compete and exist independently must plant the most suitable ones.

During the late Qing Dynasty, although Liang Qichao did not elaborate on the theory of the West in the form of specialized books or articles, the texts reflecting this theory can be seen everywhere in his works at that time. At the same time, influenced by the Gongyang III theory of modern Confucian classics, Liang Qichao tended to believe that ancient times belonged to a chaotic and disorderly era, which further solidified the picture of racial wars in ancient times. The establishment of the Republic of China has almost become a common belief among the people in the West. In 1915, the national anthem set by the Beiyang government included the lyrics' The Chinese have always been at the top of Kunlun ', and Sun Yat sen also accepted this statement in his speeches during that period.

The above-mentioned historical views and theories are destined to have a fatal impact on the newly emerged Chinese legal history at that time. When scholars began to study the origin of Chinese law, they found it difficult not to be influenced by this extremely popular and tempting set of images of racial wars and migrations.

3.2 The emergence, determination, and dissemination of the modern theory that 'punishment begins with military action'

The Chinese ethnic group quickly infiltrated the legal history works of China at that time. Firstly, there are works by Japanese scholars on the history of Chinese legal system. Asai Torao believed that the Han people were a foreign race and had a fierce conflict with the indigenous seedlings after arriving in China. Tian Neng Village Meishi also believes that the Han ethnic group migrated from Central Asia, settled in northern China through the upper reaches of the Yellow River, and gradually expelled the local Miao ethnic group. A larger number of Chinese scholars immediately followed suit. Liang Qichao wrote in his foundational work on legal history, "On the Evolution and Gains and Losses of Chinese Statutory Law Compilation" (1906, hereinafter referred to as "Evolution and Gains and Losses"), that "from the Yellow Emperor to the Shunyu Emperor, our ethnic group and the Miao ethnic group engaged in fierce competition, and we emerged after death. In his lecture on legal history (1923), Feng Chengjun agreed with the Western view that the ancient Han people were "immigrants", so the study of "ancient systems" should distinguish between "indigenous systems" and "immigrant systems". Even the exegesist Hu Yunyu was unconsciously influenced by the prevailing theories. In his book "A Brief History of Chinese Politics and Law" (1923), he wrote: "In the prehistoric era, the Chinese nation flourished in the northwest, known as Pangu, at the location of Yikaoqi, on the Pamir Plateau today. I don't know when it was, but it was located in the Yellow River Basin, at the foot of the Kunlun Mountains. He also regarded the conflicts between Huangdi and Chiyou, as well as the conflicts between Yao and Shun and the Miao people, as ethnic conflicts. Li Jitao, who participated in the great debate on social history, stated in his lecture on legal history that the Han people "followed the source of the rivers, pursued the benefits of water and grass, and first entered the northwest of the inland... Huangdi fought Chiyou at Zhuolu... Yao's Miao people rebelled against the order, Yao conquered it at Danshui... After the Miao people retreated, the Han people occupied all of China.

As a result, scholars naturally place the issue of the origin of ancient laws in the context of racial wars. The first person to make such an attempt was still Liang Qichao. Although Liang Qichao did not explicitly state the statements "punishment begins with the military" or "punishment begins with the military", his discourse actually constitutes the source of this theory. In the article "The Gains and Losses of History", Liang Qichao quoted phrases from the "Book of Documents - L ü Xing", such as "The Miao people used their spirits and punishments, but only the five forms of torture, known as the law", to clearly state that "the five forms of punishment were created by the Miao people". After the arrival of "our ethnic group" (Liang Qichao cautiously avoided using the term "Han" commonly used by revolutionaries) and the conquest of the Miao ethnic group, "the civilization of that ethnic group was absorbed and used for my own purposes, and thus the criminal law was enacted. He also cited phrases such as "The Emperor mourns the injustice of the common people's slaughter, repays the abuse with power, and suppresses the Miao people" in "Lv Xing", "The Emperor ordered Gao Tao: The barbarians are cunning in summer, the bandits and traitors are being studied, you become a scholar" in "Book of Documents · Yao Dian", and "In the 25th year of Duke Xi's Zuo Zhuan", "Virtue is used to soften China, and punishment is used to intimidate the four barbarians", indicating that initially this type of criminal law was only "applied to other tribes" and had not yet been "applied to our own tribe". The norms originally used to regulate intra clan relations were not punishments, but rituals. The "Yao Code" states that "Xiang was punished with the code, Liu Yu was punished with five punishments, whip was used as an official punishment, pounce was used as a teaching punishment, gold was used as a redemption punishment, disaster was pardoned, and he was punished with the death of a thief", which is considered to be the "oldest written law in China". This criminal law originated from the Five Punishments of the Miao ethnic group, but it is clearly a refinement and humane transformation of the original Five Punishments, so that it can be applied within the "our ethnic group".

Until 1923, although Liang Qichao's own beliefs towards the West had been shaken, ancient times were filled with racial struggles, and the law also originated from this idea, which still existed firmly in his published "History of Pre Qin Political Thought" at that time. He continued to quote from the Book of Documents and the Zuo Zhuan in the book, believing that criminal law was created by foreigners and was adopted by "our tribe". Initially, it was only used to deal with foreigners, but later it was imposed on some classes within our own tribe. He also made a creative interpretation of the sentence in "Qu Li" of the Book of Rites: "Etiquette is not inferior to commoners, and punishment is not superior to officials": "And the majority of 'commoners' are of different ethnicities, so punishment is not superior to officials, which is consistent with the power of punishment over the four barbarians, and its righteousness is consistent. Compared to the discourse in "The Gains and Losses of History", he also elaborated in more detail how the criminal law originally used for foreign tribes was transferred to within his own tribe: on the one hand, the war of racial conquest required the use of criminal law to maintain military discipline within the tribe: "When it comes to using troops, relying solely on friendship is not enough to command the masses, and the law cannot be ignored; On the other hand, the completion of racial wars has led to a gradual blurring of the boundaries between race and class. The tools used to sanction special individuals in the past are now more and more applicable to ordinary people. On the one hand, accidents within the group are becoming more frequent, and the means used occasionally in the past are being used from time to time. Therefore, the application of this law is becoming increasingly widespread.

Liang Qichao is undoubtedly the pioneer of the 20th century theory of "punishment begins with the military". His narrative already includes the following basic elements of the more mature Republic of China version of the "punishment begins with the military" theory: firstly, there were frequent wars between various blood groups (such as races and tribes) during the ancient times (and even later Xia, Shang, and Zhou dynasties) when Huangdi, Yao, and Shun lived; Secondly, punishment and even criminal law originated from the Miao ethnic group who participated in the war, and the Miao ethnic group is different from the Han or Huaxia ethnic group in terms of race; Thirdly, the Han ethnic group learned the criminal law of the Miao ethnic group during the war, but due to its extreme cruelty, it was initially only used to deal with other ethnic groups; Fourthly, due to the need for military discipline and the need to maintain order in an increasingly complex society, the reformed Criminal Law has gradually been applied within the Han ethnic group. In terms of information, Liang Qichao's discourse mainly relies on the records of "Lv Xing" and "Yao Dian" in the "Book of Documents", and does not give sufficient attention to the text in the "Guoyu" and "Han Shu" that reflects the old theory of "military and criminal unity". This historical choice also had an impact on later proponents of the theory that 'punishment begins with the military'.

The work of other theorists in modern times has mainly focused on improving this in local details. For example, Feng Chengjun almost applied Western culture to all aspects of ancient and third-generation legal systems. In his eyes, the system of well fields, the system of public fields, the relationship between ritual and punishment, the "elephant punishment" in the Yao Code, and the feudal system are all directly related to racial migration and conquest. In the field of "punishment begins with the military", we only need to know that he, like Liang Qichao, believed that ritual only applied to the "high-ranking officials" of the Huaxia ethnic group, and punishment only applied to the "common people of Miao and Li"; Elephant punishment "refers to the use of" pictographic characters "to announce laws, which are in line with the pictographic characters of ancient Western Assyria and Egypt. Hu Yunyu narrowed down the meaning of "punishment" in the phrase "punishment begins in the military" to corporal punishment, and pointed out that it was only after Chiyou mastered the manufacturing of metal weapons (i.e. "weapons") that corporal punishment was able to emerge. "When Chiyou became a soldier, the use of axes, axes, knives, and saws was promoted, and the Miao people inherited the benefits of Chiyou's golden tools and subjected him to five forms of torture, known as the law, killing innocent people, which was a great form of torture. Therefore, the "punishments of knives and saws" and "weapons of gold and iron" both originated from Chiyou and the Miao people. "The Yellow Emperor fought against Chiyou, adopted his methods, and trained him in organization, and the military affairs began. Along the Zhou Dynasty, more detailed preparations were made. This is the general outline of ancient military punishments. Du Naiyi listed the evolution of the names and types of punishments since Chiyou: "The earliest establishment of the punishment system was the Chiyou clan, which divided punishments such as divination, divination, divination, and tattooing, all of which were used to treat the Miao people. With the rise of the Yellow Emperor, the punishment system was slightly improved, with whips, pounces, drills, pipes, knives, saws, axes, and swords. In the Tang and Yu dynasties, the Miao people were intimidated and their authority was unified, and the punishment system was changed again. The system was divided into five, which are called the Five Punishments. The Five Punishments: Ink, divination, divination, palace, and grand opening... There were also whips, pounces, and streams. Punishments such as release and exile. There are also redemption punishments to punish suspected crimes

Among many scholars of the Republic of China, Chen Guyuan became the culmination and most important disseminator of the "punishment begins with the military" theory. In 1934, the book "History of Chinese Legal System", which had a significant impact on the academic history of legal history, was published, which included a rich discourse on "punishment begins with the military". Due to the shaking of the dominant position of the Chinese ethnic group in the West at this time, Chen Guyuan did not discuss the origin of ethnic groups in his book. However, his discourse still retained the scene of tribal wars prevalent before the Zhou Dynasty: "As for the fact that Shun Liu worked together in Youzhou, released Huandou in Chongshan, killed three Miao in Sanwei, and died in Yushan, it is also the fact that one tribe destroyed another tribe." Later, Shun ordered Yu to recruit Miao, initiated the war with the Youhu clan, Tang Zhi to conquer Gebo, Zhou to conquer Canrong, Mishu, Li, Chong, and defeated Yin in Muye, all of which are examples of tribal wars (between the same or different ethnic groups). The Five Punishments originated from the Miao ethnic group and were later adopted by "our ethnic group" (and this is a "common saying of ancient and modern times"), but initially they were only "specially designed for foreign ethnic groups". "If anyone of the same ethnic group commits a crime, or if the four barbarians are not the same as China, it would be as if the" Code of Shun "were" Liu Gonggong, Fang Huandou ". The term 'Dafu' in the phrase 'no punishment for Dafu' refers to an identity group that combines nobility and kinship. In 1944, Chen Guyuan published "Observations on the History of Rule of Law and Rule of Rites", which once again elaborated on his viewpoint that "the original meaning of law is' punishment 'and originated from' soldiers' '' in plain language. Compared with the discourse from 10 years ago, he added an answer to the question of how the punishment inherited from other ethnic groups was applied to his own ethnic group: "Because the punishment of the Five Abuses was specifically designed for other ethnic groups, and other methods such as exile and whipping were used against the same ethnic group, the scope of punishment has been expanded; because other ethnic groups gradually submit and are under the Han ethnicity, any type of punishment cannot be absolutely divided into external and internal boundaries, and can only be applied universally, at most referring to the use of armor for external purposes as the Great Punishment, which further expands the application of punishment. After 1949, he continued to write articles to spread his theory of "punishment begins in the military". In the first edition of "A Brief History of Chinese Legal System" in 1964, which was later reprinted by scholars on both sides of the Taiwan Strait, he still adhered to this viewpoint. It is precisely because of Chen Guyuan's academic influence and persistent enthusiasm for writing, publishing, and even translating that the theory of "punishment begins in the military" has become a common saying in the academic community since the 1930s.

Just by browsing through the names of other scholars who basically accepted the theory of "punishment begins in the military" during the Republic of China period, one can feel the wide spread and strong ruling power of this theory. These people include but are not limited to Dong Kang, Cao Xinhan, Yang Honglie, Ding Yuanpu, Sun Chuanxuan, Xu Chaoyang, Chen Guangyu, Liu Gongren, Guo Wei, Lv Simian, and Li Yuanzhi (roughly sorted by the time of the works' birth).

The concept of 'punishment begins with the military' is destined to be the zeitgeist of 20th century Chinese legal history.

3.3 Evaluation of the Modern Theory of 'Punishment Originates from the Soldiers'

The theory of "punishment begins in the military" in modern times is a collective answer by the Chinese legal history community to the question of the origin of Chinese law. This answer attempts to break away from the old path of academic literature review in the Qing Dynasty, which was not good at explaining meanings and theories, and focused on dynastic cycles while neglecting group evolution. For the first time, it creatively interprets relevant records in domestic classics with new concepts and ideas imported from Japan and Western academia, which seems to be self explanatory. This effort itself deserves recognition.

However, due to the fact that the theory of "punishment begins in the military" was born in the early stages of modern Chinese academia, it is destined to be immature. On the one hand, some of the premises it relies on are themselves products or derivatives of the equally immature Western social sciences at that time; On the other hand, it also has obvious deficiencies in core historical materials, old academic background, and literature exploration.

Firstly, the modern theory of "punishment begins with the military" relies heavily on the fallacy of the Chinese nation. Essentially, it is a kind of saying created urgently by modern Chinese intellectuals in the anxiety of national subjugation to boost the morale of Chinese people and fight against western racial prejudice. At the academic level, the Western doctrine has almost no room for establishment: within it, scholars have different opinions on whether the Han people came from Babylon or Pamir, and whether the leader of the migration movement was the Yellow Emperor or someone else; Since the 20th century, archaeology has had a significant impact on the excavation of New and Old Stone Age sites in China; His works are also filled with arbitrary associations and even misinterpretations of Chinese and foreign classics and historical materials. Even during the Republican era, scholars such as Miao Fenglin and He Bingsong had launched serious criticisms of this viewpoint. The prejudice of Han chauvinism contained in the Western perspective (equating "Chinese ethnicity" with "Han ethnicity") also does not conform to the more comprehensive and appropriate understanding of the diversity and unity of the Chinese nation today. Furthermore, the theoretical foundation of Xi's theory is filled with social Darwinism and racial discourse that have been heavily criticized by contemporary social sciences. Serious social scientists should not imagine world history as a history of conflicts between several major races that have existed since ancient times. Even if this view of history appears in the form of a disguised 'clash of civilizations', it should not be.

Secondly, the modern theory of "punishment begins with military action" has fatal flaws in the selection, application, and interpretation of core historical materials. Among many surviving documents, the "Yao Dian" and "Lv Xing" in the "Book of Documents" are particularly favored. The citation of 'L ü Xing' is to prove that the Five Punishments originated from Chiyou and the Three Miao, as well as the existence of racial wars between the Han ethnic group and Chiyou and the Three Miao in ancient times. The reference to the "Yao Code" is to prove that after learning the five punishments of the Miao ethnic group, Yao and Shun initially only applied them to other ethnic groups, and then reformed them and applied them to their own ethnic group. However, the ancient history discernment school that emerged during the flourishing period of the "punishment begins with the military" theory pointed out that a large number of ancient figures and deeds in the classics are not true records of history, and even these classics themselves may not have been written in ancient times or the Three Dynasties, but were created by scholars in the Spring and Autumn Period and Warring States Period. Specifically regarding the Book of Documents, the "Yao Dian" was recognized by Gu Jiegang as a book after the "Analects". Its creative purpose was to support the Confucian doctrine of abdication, and therefore it is far from a true record of the deeds of Yao and Shun. Even the "L ü Xing", which is often considered to have been written in the Western Zhou Dynasty, was once determined by Qian Mu, who was close to the camp of ancient history, to have been written after Li Kui and Shang Yang in the Warring States period. This article explicitly referred to "Xing" as "Fa", and the true appearance of this term was after the rise of Legalism. Based on recent unearthed evidence, some contemporary scholars believe that the writing of "L ü Xing" went through a complex evolution process from the Spring and Autumn or early Warring States period to the late Warring States period. The final version of this work has undergone significant changes compared to the initial text. Unfortunately, most proponents of the theory that 'punishment begins in the military' have not seriously faced the complexity of the recorded historical texts. Instead, they simply treat the words in them as historical records and use imagination and speculation to connect these fragments of information into a cohesive historical story.

Even if we do not consider whether these records are historical records for the time being and instead treat them as theories proposed by scholars during the Spring and Autumn Period and the Warring States Period, this theory still falls far short of the modern "punishment begins with the military" theory. Both the "L ü Xing" and the "Yao Dian" actually presuppose the existence of a global order during the reigns of Chiyou, Yao, and Shun, rather than the unrestrained killings and conquests envisioned by modern scholars. Therefore, "L ü Xing" refers to the behavior of Chiyou and Miao people as "rebellion" and immediately describes the efforts of heaven and its agents to restore order. The interpretation of what kind of characters or groups Chi You and Miao are by modern scholars is also significantly different from that of ancient people. Under the domination of racial thinking and Western discourse, modern scholars instinctively identify these people as alien tribes or tribal leaders, which is unreasonable for ancient commentators. In the annotated edition of the Thirteen Classics of the Qing Dynasty, titled 'Justice in the Book of Documents', editors and proofreaders provided various interpretations of these terms since the Han Dynasty. For example,' Chiyou 'has been interpreted as the ruler of the Nine Li Kingdom, one of the feudal lords in the late years of Emperor Yan, an' ancient emperor ', and even a' greedy person '.' Sanmiao 'is also considered a country name. That is to say, ancient people did not consider Chiyou or Sanmiao to be foreign tribes outside the order of Chinese etiquette and law. On the contrary, they were also considered to belong to the order of the world at that time and were one of the feudal lords. However, due to their excessive tyranny, they were punished or even executed by heaven or the emperor. In short, neither the author of the Book of Documents nor the ancient commentators could imagine a scene of lawless and arbitrary killings among different races in ancient times.

The statement in "Zuo Zhuan: The 25th Year of Duke Xi" that seems to support the idea that "punishment begins with the military" is worth further analysis, as it states that "virtue is used to soften China, and punishment is used to intimidate the four barbarians". The context of this sentence is: Duke Wen of Jin met with King Xiang of Zhou and requested permission to enjoy the funeral rites of King Xiang after his death. King Xiang refused on the grounds of not meeting the royal seal, but still granted him land such as Yang Fan. The residents of Yangfan were unwilling to surrender to the state of Jin, so Duke Wen of Jin led troops to besiege them. At this moment, Yangfan Ren Cangge shouted in front of the army: 'Virtue softens China, punishment threatens the four barbarians', and stated that the residents of Yangfan are all' relatives of the king ', so they cannot become prisoners of war. Duke Wen of Jin listened to Cangge's words and released and relocated the residents, only taking their soil. This context cannot prove that Cangge was discussing the origin of law or the practical application of morality and punishment. Rather, he advocated the most ideal position of morality and punishment in the Zhou Dynasty's world order at the normative level. On the factual level, the same "Zuo Zhuan" indicates that the scope of application of punishment is far greater than what Cangge is willing to accept. "Many members of the ruling class, such as officials and officials, also left records of being sentenced to death or corporal punishment. But modern scholars, due to the lack of the normative thinking of ancient people, instinctively understand this sentence as a discussion of facts, that is, an expression of the origin of law or the actual application of morality and punishment, using (pseudo) social science thinking. It is worth noting that Duke Wen of Jin was clearly besieging Yangfan with his army, that is, he was clearly raising "troops", but Cangge referred to this action as "punishment". It is obvious that this referential relationship contains the "unity of military and criminal" theory, which belongs to the normative level. Yang Bojun also explains this linguistic phenomenon with the phrase "one of military and criminal".

Again, the modern theory of "punishment begins with the military" lacks sufficient understanding and respect for the classical concept of "the unity of military and punishment". Although some scholars still mention the ancient concept of "military and criminal unity" that exercised restraint on both types of violence, the mainstream of this period was clearly in the opposite direction: ancient history was completely de standardized, leaving only naked violent conflicts between races, and criminal law was the product of this violence; If there are any remaining norms, then it is rather a social Darwinist authoritarian norm (which is indeed the idea advocated by the advocates of Chinese nationalism). Although scholars often refer to the text in "Guoyu" and "Hanshu" discussing the integration of military and criminal affairs, they only understand it literally (such as simply interpreting it as a mixture of military and criminal affairs or official positions), and even use this to support their view that "punishment begins with the military". The strong normative view of the world order originally contained in the classical theory of "unity of military and punishment" is nowhere to be found in these modern texts. Chen Guyuan even bluntly stated that in the era of "combining military and punishment", "there is no concept of right and wrong, nor is there a distinction between good and evil... Even if there are norms, they are not unified and determined norms. What standards should be used to criticize others for doing right or wrong?" The rupture between the old and new academic traditions has reached a surprising level.

Finally, the modern theory of "punishment begins with the military" ignores other descriptions of the origin of law in historical documents. The discussion on the origin of criminal law or law is far beyond the few words recorded in the Book of Documents. In the era of the Hundred Schools of Thought in the Pre Qin period, each school had corresponding discussions on the origin of politics, law, or ritual systems in order to strengthen their own political beliefs, such as the theory of divine will, the theory of sages administering punishment, the theory of nature or heavenly principles, the theory of water management, the theory of dividing and stopping disputes, the theory of unifying right and wrong, and the theory of eliminating differences between the wise and the foolish. As contemporary scholars have pointed out, compared to "punishment begins with the military", "these statements do not link the origin or formation of law to the political oppression of tribal groups through warfare, but only to the need to establish an order for the distribution of political and material resources within society. The first punishment methods mentioned in these statements are not the Five Punishments, exile, and release, but the rules of distribution or behavior. But modern legal history, which has a special preference for the argument that 'punishment begins with the military', chooses to turn a blind eye to the above statements.

4. The Contemporary Evolution and Solidification of the Theory of 'Punishment Starts with Soldiers'

4.1 The Layered Structure of the Contemporary Theory of 'Punishment Starts with Military Action'

The contemporary theory of "punishment begins in the military" emerged in the context of the "cultural fever" of the 1980s and 1990s, which was highly characteristic of the times. With the rectification of chaos, the entire intellectual community began to ponder the fundamental reasons for the various twists and turns of China's modernization path since the late Qing Dynasty. Guided by the slogan of "liberating the mind", the old path of "the economic foundation determines the superstructure" is no longer the only answer, and reflections on various factors in traditional culture that are not conducive to modernization are beginning to emerge. Correspondingly, the recently restored study of legal history also focuses on examining issues related to legal culture, which naturally includes seeking the roots of Chinese legal culture and considering whether this root may hinder attempts to build the rule of law. The revival and solidification of the theory of "punishment begins with military action" became a natural product of the academic history of law during that period. Due to space limitations, this article focuses on the works of the three most important proponents of the "punishment begins with the military" theory at that time - Cai Shuheng, Liang Zhiping, and Zhang Zhongqiu. It should be emphasized that, in the context of the time, the emotions and thoughts of this generation or two are completely worthy of understanding and respect.

As a figure who transcends the academic circles of the Republic of China and contemporary academia, Cai Shuheng naturally became a pioneer in the history of the theory of "punishment begins with the military". As early as 1981, Cai Shuheng published an article titled "The Origin of the Name of Criminal Law", interpreting the origin and development of criminal law from the background of ancient ethnic conflicts. He believed that during the reign of Huangdi, there was already a criminal law in place, but it was aimed at the foreign race as the ruled class, namely the "Bangmin". Chiyou's rebellion was actually a "mass uprising" of the "Bangmin" against the rulers of the Xia ethnic group (i.e. the "Bangren"). It was not until the reign of Emperor Yu that the Xia ethnic group officially began to use criminal law, marked by the formulation of the "Yu Punishment". At this point, the leaders of the Xia ethnic group went from representing the "people of the state" to oppressing the "people of the state" to oppressing both the "people of the state" and the "people of the state". It is worth mentioning that Cai Shuheng used his unique knowledge of phonetics and exegesis to standardize the interpretation of the ancient Chinese character "fa" (灋). He does not agree with the interpretation of the character "fa" in "Shuowen Jiezi" as "flat as water", and even believes that these four characters were added by later generations because "the character" fa "originally had no fair meaning". The ancient pronunciation of the character "fa" is "waste", which means to release, remove, or eliminate. Moreover, the character "fa" is composed of water, and as a punishment, it is natural to abandon the flow. Therefore, the oldest meaning of the character "fa" is to place people above the water flow and expel them from their own group.
In the book "History of Chinese Criminal Law" (1983), Cai Shuheng combined some concepts of historical materialism and his unique understanding of philology to construct a grand theory of the origin and development of early law. He pointed out that in the primitive communist society, there were no ethnic differences, and there was no distinction between Yi and Xia. It was just that "due to their different lifestyles, there were differences between Xia and barbarians, Yi, Rong, and Di". There is no punishment at this time either. After entering the era of 'private ownership by the people of the state' (since the Yellow Emperor), conflicts and oppression between ethnic groups emerged, and punishment was thus born. But initially, the punishment was only applicable to foreign "nationals" under the rule of their own state, and did not apply to their own "nationals". The Miao people were the first to enter the "state ruler private ownership" and began to use punishment within the tribe, persecuting the shaman class who originally governed their own people through means such as education and persuasion (Cai Shuheng believes that the sentence in "Lv Xing" that "the Miao people use their spirits, use punishment, but only resort to the five tortures of law, killing innocent people" refers to the slaughter of shamans and their sympathizers). The Xia ethnic group intervened with force in a timely manner, which helped to quell the internal strife of the Miao ethnic group. Later, due to the increasingly irreconcilable class contradictions within the Xia ethnic group, the Xia state had to establish "private ownership of the state monarch" and punishments began to be imposed within the clan. During the reign of Yu Shun, influenced by the advanced experience of the Miao ethnic group, the Xia ethnic group also began to develop a punishment system centered on corporal punishment, but changed it to symbolic punishment, namely "elephant punishment". According to Cai Shuheng's highly creative exegesis plan, the "elephant subjected to ritual punishment" in the "Yao Dian" became the "shape of the Jin Ying elephant subjected to ink punishment", the "Liu You Five Punishments" were the "shape of the lemon scarf subjected to corporal punishment", the "whip as an official punishment" was the "shape of the Fei Yi elephant subjected to patellar punishment", the "pounce as a teaching punishment" was the "shape of the grass skirt elephant subjected to palace punishment", and the "gold as a redemption punishment" was the "shape of the cross leading elephant subjected to murder punishment". However, in the late years of Shun's reign, corporal punishment was officially established. The text in "Gao Tao Mo" of the Book of Documents has also been uniquely interpreted by Cai Shuheng: "The Five Classics and Five Dunzai of the Book of Documents" means that the criminal law adopts the method of punishment, "The Five Rites of the Self are Yongzai" means that the criminal law adopts the method of punishment, and "The Unity of Compatriots and Respect" also means that the system of punishment is about to be combined into a system of punishment, including punishment, execution, death, palace, and ink. The old five punishment system in Chinese law has officially been established.

The most influential work in the history of the contemporary theory of "punishment begins with the military" may be Liang Zhiping's article "The Debate on Law" published in 1986. Unlike Cai Shuheng's works that focus on examining the meanings of words and texts in classics, this article presents a broad perspective on the comparison of Chinese and Western history. Liang Zhiping agrees with Cai Shuheng's understanding of the ancient meaning of "law", believing that the meaning of the word "water" is "purely functional" and does not contain connotations of fairness, justice, etc. Words such as "ius," "drought," and "Recht" in Western linguistic notation can "blend rights, justice, and law into one. This linguistic difference must be clarified by going back to the origins of the respective countries and laws in the East and the West. On the one hand, Liang Zhiping examined the origins of ancient Athens, Roman city states, and law, and on the other hand, explored the formation of Xia, Shang, and Zhou states and law. He came to the following understanding: Athens and Roman states were products of the disintegration of clan organizations, and their states and laws were forces above society, so the law had stronger justice; The three generations of states, however, have been closely associated with clan organizations. In frequent inter clan conquests, the state is not a "public power," but an appropriate form for each clan to use its legitimate force. As a result, "law is only seen as a tool for repression, and its main manifestation is punishment. Liang Zhiping also quoted the phrase from the "Guoyu" that "large punishments use armor, followed by axes and swords, medium punishments use knives and saws, followed by drills and knives, and thin punishments use whips", but it was used to emphasize the violence and cruelty of the law.
In 1991, Zhang Zhongqiu's book "Comparative Study of Chinese and Western Legal Culture" was published. On the basis of Liang Zhiping's comparative legal history framework, the first chapter of the book is filled with more classic records and explained by himself, constructing a complete and harmonious narrative about "punishment begins in the military". In terms of discussing cases of the origin of Western law, this book, like "The Critique of Law," relies on the history of Athens and the Roman city states. Zhang Zhongqiu's focus is mainly on the origin of Chinese law. He integrated the viewpoint of "punishment begins with the military" throughout the periods of Emperor Yan, Emperor Huang, Yao, Shun, Yu, Xia, Shang, and Zhou. He pointed out at the beginning that both the legendary era and the Xia, Shang, and Zhou dynasties were filled with tribal wars, and "the law was mainly formed through the special form of warfare". Specifically, during the Battle of Chiyou by the Yellow Emperor, the death penalty was first used to deal with the defeated; Sanmiao invented corporal punishment and used it to harm the Huangdi tribe, but was suppressed by Shun; Shun punished the leaders of the same or different ethnic groups, such as Sanmiao, Gonggong, Cong, and Huandou, with punishments of exile, release, and death. The corporal punishment created by Sanmiao was also inherited by Shun; The Xia Dynasty's "Yu Xing" originated from the suppression of rebellions by other clans during the Xia Dynasty; The Shang Dynasty's' Tang Xing 'also originated from the conquest of foreign tribes; The Nine Punishments of the Western Zhou Dynasty originated from the suppression of foreign tribes such as the Old Yin tribe and the Xu Huaiyi tribe; The legal creation model of "punishment begins with the military" even continued into the Spring and Autumn Period and Warring States Period. The Jin State's "Laws of Being Covered" and "Laws of Constant Law" and the Chu State's "Laws of Maomen" were all issued before or during military operations. Although this criminal law was initially used to deal with foreigners, it also applies to serious illegal crimes within one's own tribe or clan. He finally stated that tribal wars had a significant impact on ancient Chinese law, leading to its repressive, brutal, unjust, undemocratic, and closed characteristics.
After Zhang Zhongqiu's works, there are few specialized and systematic interpretations of the theory of "punishment begins with the military" in strict academic works. Of course, this does not mean its decline. On the contrary, the theory of "punishment begins in the military" subsequently became the standard view in the majority of Chinese legal history/legal history textbooks regarding the origin of Chinese law, and its popularity even exceeded that of the Republic of China period. To this day, almost all undergraduate law students still come into contact with these four words in the core course of Chinese legal history.
The contemporary theory of 'punishment begins with military action' not only inherits similar theories from modern times, but also has variations that reflect the characteristics of the times. In terms of inheritance, contemporary theories about ancient times were filled with wars between clans or tribes, and punishment and criminal law originated from these wars. They were initially used for foreign tribes and gradually applied to their own tribes, and are no different from the core propositions of the Republic of China theory. In terms of variation, contemporary scholars have made two revisions to modern theory: firstly, influenced by the theory of social evolution of historical materialism, contemporary theory no longer regards various conflicts and wars in ancient times as occurring between different races, but as wars between different blood groups such as clans and tribes within the same race, culture, and territory, and no one mentions them anymore; Secondly, compared to modern scholars who often positively affirm "the beginning of punishment in the military" as one of the chapters of the "developed history" of the Han ethnic group, scholars in the 1980s and 1990s tended to regard "the beginning of punishment in the military" as the "original sin" of Chinese law, and believed that it created the "cruel" characteristics of Chinese law for thousands of years to come.
4.2 Reflection on the Contemporary Theory of 'Punishment Starts with Soldiers'
As mentioned earlier, in the special historical context of the early stage of reform and opening up, the "punishment begins with the military" theory was once again raised and strengthened, which is a phenomenon that requires sympathetic understanding. From the perspective of the development of the discipline of legal history, scholars during this period (especially the three gentlemen mentioned earlier) also established basic paradigms and topics for the teaching and research of this discipline in the following decades, and their contributions are indelible. However, if viewed from a hindsight perspective, the theory of "punishment begins with the military" since the 1980s can still be debated academically.
Given that the core proposition of the contemporary "punishment begins with the military" theory is still a continuation of the modern version of the theory, criticism of the modern version can also be applied to contemporary times. In addition, there are still several aspects of methodology and substantive viewpoints worth reflecting on in the contemporary theory of "punishment begins with military action".
Firstly, there is a formalistic issue in the study of comparative legal culture in the contemporary theory of "punishment begins with military action". This is particularly reflected in the comparability of the definition of the scope of "law" between China and the West. Due to the broad extension of the concept of "law" in Western languages, which includes not only empirical law but also what some scholars call justice theory, philosophy of rights, and natural law, the Western concept of "law" in the minds of contemporary scholars engaged in comparative research is this broad definition of law. Due to the fact that the concepts of "law" and "punishment" in ancient Chinese language are considered to only contain the meaning of empirical law, contemporary scholars' examination of ancient Chinese law focuses on empirical law, especially criminal law. By comparing in this way, it is natural to conclude that Western "law" is more "just" or "transcendent" than Chinese "law". However, this formalistic comparative method, burdened by language, is not suitable for accurately and comprehensively presenting the similarities and differences between Chinese and Western French cultures. From the functionalist perspective of comparative law, there were a series of discussions in ancient China about the principles of heaven and human relationships, political justice, and individual dignity, which also had a significant impact on empirical law (such as the Confucianization of law). Just because these explorations and related practices are not called "law" or "jurisprudence", they cannot be excluded from the scope of legal culture. No legal culture can be a naked tool of violence, as they both contain elements of empirical law and conceptual law. Comparing the narrow empirical Chinese law with the broad Western law that includes empirical law and conceptual law is itself an unfair double standard approach, and the conclusions drawn are naturally biased.
Secondly, in the process of comparing China and the West, the contemporary "punishment begins with the military" theory not only amplifies the impact of war on early Chinese law, but also ignores the impact of war on the formation of ancient Western law. The reflection on this issue needs to be divided into two levels. Firstly, contemporary scholars tend to believe that "clan society" and countries directly formed by kinship such as clans are naturally more competitive than "regional states" or "political states" that break blood ties. Therefore, wars in ancient China must have been more frequent and brutal than those in ancient Western times. This understanding was indeed influenced by the works of Lewis H. Morgan, Engels, and others in the 19th century, but it also largely deviated from their original intention. Influenced by the theory of evolution, Morgan and Engels indeed believed that political states were more "civilized" than clan societies, but they did not say that the more "barbaric" clan era had more wars. In terms of historical records, if there are indeed many legends of ancient wars in classics such as the Book of Documents, then many epic poems and historical books in ancient Western times are mainly based on war (such as the Iliad and the History of the Peloponnesian War). Whether a group frequently falls into a state of war is not mainly determined by its subjective will, but rather by the influence of the geopolitical environment. Moreover, in terms of objective war capabilities, a "civilized" country with a more organized local political landscape and more efficient mobilization machinery is much stronger than a "barbaric" society in this regard. Secondly, even when considering the impact of war on the origins of Chinese and Western law, contemporary scholars' comparative research has failed to achieve comprehensive peace. If the origin of Chinese law may have been influenced by war, then the origins of ancient Greek and Roman states and law, especially their public law systems, were largely a product of military or geopolitical factors. In fact, both Morgan's works that have had a significant impact on these scholars and the study of Roman legal history in the 20th century have focused on the relationship between various legal reforms and military affairs in the history of Athens and Rome. All the legal reforms in the history of Athens and Rome regarding the rights and obligations of various social classes, administrative divisions, and grassroots social organizations (such as the centurion system) were almost entirely aimed at meeting the needs of war mobilization and had distinct characteristics of "militarism". Even the most familiar position in the field of legal history, the Roman judge, has military origins: its Latin name is "praetores", consisting of the words "prae" (before...) and "itores" (army), which originally referred to military leaders. Can we also tell a beautiful story about ancient Greece and Rome where 'law originated from war'?
Finally, some contemporary proponents of the theory that 'punishment begins with the military' have failed to historically and comparatively address the issue of so-called cruelty in early Chinese law. This is particularly reflected in the understanding of corporal punishment. Meat punishment was a common phenomenon in early laws. From the perspective of modern people, criticizing the old five punishment system in early China, which was centered around corporal punishment, as being too cruel may seem a bit harsh. Moreover, during the reigns of Emperor Wen and Emperor Jing of the Western Han Dynasty, Chinese law had already initiated a humane reform movement aimed at abolishing corporal punishment. After the establishment of the new Five Punishments in the Sui and Tang Dynasties, the old Five Punishments had already been abolished. Therefore, it is biased to believe that corporal punishment and its accompanying cruelty have influenced Chinese law for thousands of years (until the end of the Qing Dynasty). From a comparative perspective, there have also been instances of corporal punishment in other legal cultures throughout human history. Even in the "noble" Roman law, corporal punishment was often used in reality, especially during the imperial period (equivalent to the late Western Han Dynasty to the Southern and Northern Dynasties). During the reign of Diocletian, the punishment for Christians who had not yet obtained legal status was to stab their right eye and chop off their left foot. Since the reign of Constantine, many types of criminals (such as those who desecrate graves, rob churches, commit sodomy, and deceive officials) have also been frequently punished with physical harm. Under the discretion of judges, certain statutory punishments that were not originally corporal punishment are often replaced by corporal punishment. The criminal law of medieval Germany stipulated a variety of punishments for bodily harm, such as branding, amputation, ear amputation, tongue amputation, and eye gouging. The execution of the death penalty also involved cruel methods, such as car splitting, burning, live burial, and being strangled with red iron tongs. In the contemplation of legal culture spanning ancient and modern times, both in China and the West, how to maintain a balanced perspective has always been a test.

5. Conclusion
Given the powerful dominance of the theory that 'punishment begins with the military', our abandonment of it must be carried out with a grand farewell ceremony. In this farewell, we experienced the experiences, emotions, achievements, and limitations of several generations of intellectuals. The theory of "punishment begins with the military" in the 20th century is fundamentally different from the ancient Chinese concept of "the integration of military and punishment". The former identifies the actual origin of criminal law as war violence, while the latter attempts to bring both war and punishment violence under the constraints of the ritual and legal order. Essentially, it is not a discussion of the origin of law. The theory of 'punishment begins in the military' originated in modern times when social Darwinism and racial ideology were prevalent, and was long based on the premise of the Chinese nation, the West, which no one mentions today. This theory regards Chinese law as a product of racial or tribal wars in ancient times, and therefore believes that the initial form of Chinese law was criminal law, even pure punishment, and this law was initially only applicable to foreign races before gradually transferring to our own races. Both the late Qing Dynasty and the Republic of China period, as well as the contemporary theory of "punishment begins with the military", have obvious flaws, such as the pseudo scientific nature of theoretical premises, improper use of core historical materials, insufficient attention to ancient literature and academia, formalism in comparative legal history methods, inconsistent observation focus in the process of comparing China and the West, and overly harsh criticism of ancient people in terms of value orientation. Therefore, current legal historians have ample reason to bid farewell to the saying 'punishment begins with the military'. I also believe in the power of time: among the scholars who advocated the theory of "punishment begins with the military" in the 1980s and 1990s, perhaps many people are no longer fixated on their views from more than 30 years ago.
The theory of 'punishment begins with the military' is a byproduct of the stress response of modern Chinese scholars after encountering the highly Eurocentric Western view of racial history. It not only failed to surpass Eurocentrism, but was firmly captured by it. The premise for constructing China's independent knowledge system is to conduct a thorough review of the old knowledge structures that have accumulated in humanities and social sciences such as "punishment begins in the military" since modern times. After bidding farewell to the saying 'punishment begins with the military', the origin of Chinese law and early research on Chinese law in the future will be able to broaden the scope and objects of research with a more calm attitude and a more agile pace, based on fully valuing various historical documents (no legal system can only include criminal law), and engage in dialogue with more scientific and inspiring social science theories, ultimately providing world academia with explanatory intellectual insights into both Chinese and Western legal history.