Administration Of Justice In The Context Of Spring And Autumn Period

The general academic knowledge about Judiciary in traditional China has beenon the basis of judicial practices since Song Dynasty (especially Qing Dynasty),lacking of comprehensive understanding the Judicial characteristics. Moreover, therehas been strong "modernity"value judgment in it. Therefore, it is of great significanceto further the study of judicial systems and its related issues concerning ancientChina,especially before the Qin and Han dynasties. Spring and Autumn Period is thefirst transformation period in Chinese history. As far as its judicial form are concerned,it not only retained the old factors, but showed up some seeds of the new systems,worthy of deep research and systematical study. Due to the lack of historical data andthe limitations of research methods, for the academic, it is still far behind to have aclear understanding of the overall features and the details of the justice in the Springand Autumn Period. Besides, there has been so many problems in the existedstudies.Thus, the systematic and deep discussion is extremely necessary.This thesis will be based on Zuozhuan(《左传》), with reference to other rawmaterial of the Pre–Qin literature, such as Guoyu(《国语》), Lunyu(《论语》),Shangshu(《尚书》), compared with the unearthed documents,such as Western Zhouinscriptions and the inscribed Chu Bamboo slips of Warring States. Also, the Behaviorism and Functionalism methods of legal anthropology will be employed inthe article, and the judicial functions, jurisdiction, judicial forms, judicial official, thewords of litigation, proceedings, the administration of justice basis and itscharacteristics on the dispute resolution perspective will be thoroughly andsystematically investigated as well. In this article, a list of related keywords will beanalyzed and compared, which will ensure that the research is reliable on historicalresource.In addition to the Introduction and Conclusion, the article is divided into fourparts.The Chapter One will investigate a variety of disputes forms, dispute resolutionmethods and their characteristics in Spring and Autumn Period. As far as the methodof legal anthropology is concerned, the disputes types back that time could be dividedinto five, that is, marriage, inheritance, administrative, criminal and Land. Then, themode of dispute resolution could be divided into two aspects: the violent andnonviolent way. Forms of violence can be divided into war, retaliation and revengethree ways. The paper made a distinction between retaliation and revenge. The articlediscussed in particular the attitude of revenge and its causes, which emphasized thelegitimacy of the reasons and distinguished between public and private purpose.Non-violent means can be divided into three ways of conciliation, mediation andlitigation. Reconciliation have both active and passive, which usually under theauspices of the Chief (盟主). In order to fixed the results of the reconciliation,it isusually held the ceremony of the Vows (盟). Ensuring the effectiveness ofreconciliation, the hostage is also a common subsidiary way. Mediation can also bedivided into both active and passive, but the result is likely to be successful or may befailed. Dispute resolution in Spring and Autumn Period has three main features. Firstof all, diversification of dispute resolution which violent and non-violent way, privaterelief and public relief way co-existed. Secondly, the common form is to resort to theChief(盟主). It was consisted with the Chief political (盟主政治)or dominantpolitical(霸主政治)of Spring and Autumn Period. Thirdly, a lot of disputesresolved by the way of litigation, In the late Spring and Autumn Period, there have gradually enhanced by the referee.to solve various disputes. This may be a reflectionof the social changes in the times of the Spring and Autumn Period, that it wasgradually emphasized on justice in resolving disputes.The Chapter Two will examine the authority of jurisdiction in Spring andAutumn Period. Although the word "judicial" has appeared in traditional China, it isso different from its modern counterpart, and it obviously can not be used tosummarize the actual status of the traditional justice. There is great need to grasp theconcept of traditional justice in light of its function. The judicial power of Spring andAutumn Period, including jurisdiction and enforcement powers. It can be divided intogeneral, medium and narrow jurisdiction according to its fact. Narrow jurisdiction isvery similar to the jurisdiction of the modern judge, and medium jurisdiction,however, is not limited to the professional judges. General jurisdiction means de factojudicial power, including empero(r周天子), Chie(f盟主), Zhuhou(诸侯), Qindafu(卿大夫),and so on. From the horizontal relations, in Spring and Autumn Period,the Justice Official not only including the professional judges, such as Sikou(司寇),Shi(士), Li(理), but also including part-time judges,such as Situ(司徒), Sima(司马), Sikong(司空)as well. The paper refers this phenomenon as "multi-officialand sub-post judicial'. From the vertical relationship, emperor(周天子), Chief(盟主), Zhuhou(诸侯), Qindafu(卿大夫) have jurisdiction accordingly within itsjurisdiction, and this is called "multi-tiered justice". In Spring and Autumn Period,there are three special form of judicial, that is, family justice, international justice andmilitary justice, which is the obvious evidence of the diversity of judicial form.Chapter Three will examine the professional judges. In Spring and AutumnPeriod, it mainly including Sikou(司寇), Sibai(司败), Shi(士), Li(理), andso on. This paper argues that Sikou(司寇)was professional judge in Western ZhouDynasty. The meaning of Sikou(司寇)is diverse in Spring and Autumn Period, whichnot only can be used to refer to as institutions, but refer to official, and persons nameas well. Sikou(司寇) was professional judges, which was responsible for theadministration of justice, but its case have not judicial function, but only play anauxiliary functions.Therefore, it was not completely understanding to said that Sikou (司寇)was judicial official or not. The records of Slkou(司寇)in Zhoul(i《周礼》)has a close relationship with Zuozhuan(《左传》), which is most likely an importantsource of the former. Although the ideal of set the official sub-grade records in Zhouli(《周礼》)was after the Warring States, but there are still the basis of its facts. Therehas always been poorly researched on the Specific meaning of Sibai(司败). Thearticles argued that "bai"(败))is the same as "ze"(则) and "zei"(贼)from threeaspects of shape, meaning, and its initial function. They are related to the violations ofproperty,and also show that the concept of penalty origins in military(刑起于兵) inearly China. The basic meaning of the Sikou(司寇)and Sibai(司败))both meansjudicial, The different expression between the two words may be reflected anorth-south geographical. During the Qin Dynasty, Sh(i士) have multiple meanings,but its original means "things", which referred to the things of warrior. As the title ofjudge, Sh(i士)existed in various state, and most of them were in the state of Jin(晋).Shi(士)was not only responsible for judicial affairs, but also responsible for othermatters such as foreign affairs. As the name of judge, Li(理)appeared in Spring andAutum Period, formed in Warring States Period, and were popular in the Han Dynasty,just like Sikou(司寇)and Sh(i士).Therefore, there is enough evidence that it was notvery correct to make use of the existed material that Li(理)had been written down.The Chapter Four will inspect the litigation words, proceedings, the basis ofreferee and the characteristics of administration of justice. As a word,"YuSong"(狱讼)was apeared in Waring States Period, while "litigation" was first documented inHanshu(《汉书》)."Gao"(告) in "Zuozhuan"(《左传》)has been the meaning ofthe litigation, and after the development of the Warring States Period to Han Dynasty,there have been such a mature legal form of Gaolu(《告律》)."Su"(诉)means thevictims Unilateral sue act,while "Song"(讼)means what behaviors between bothlitigants among parties, and the basic meaning of the word "Yu"(狱)means cases(notonly means criminal cases). The difference between "Gao"(告),"Su"(诉),"Song"(讼)and "Yu"(狱)is: the former is from the point of view of individual behavior ofthe litigants, while the latter is from the trial's point of view. The main forms ofprosecution in Spring and Autumn Period were three kinds, that is private prosecution, information,and arrested by self."Zhi"(执)was similar to arrest, which usuallyoccured after prosecution."Qiu"(囚)sometimes also be used to indicate coercivemeasures before trialed."Zuoyu("坐狱)was a unique requirements in the proceedingsof the Spring and Autumn Period. The basic principles of "Zuoyu"(坐狱)must followthe principle of hierarchy of the Western Zhou Dynasty, that is, only the same statusof both sides can be debate each other within the proceedings. In addition toconsidering the level of the nobility, the position of the vassal state(诸侯国)of thesize is also an important reference criteria. In Zhouli(《周礼》),the records of"Nobility does not participate in litigation process"(命夫命妇不躬坐狱讼)does notfully conform to the facts of Spring and Autumn Period,and may be idealistic,systematic summary. The trial stage of litigation called "Ting"(听), that is, lawsuitsby those who have jurisdiction to conduct the hearing process. Due to the diversity ofthe judicial power in Spring and Autumn Period, the Subject of "Ting"(听)are alsodiversity, in which the monarch, Qingdafu(卿大夫), judges can be hearing. Thestatement of "Wuting "(五听) in ZhouLi(《周礼》)is an idealized description of thejudicial practices since the Western Zhou and Spring and Autumn. In the proceedings,what the parties Statement or excuse was called "Ci"(辞), which have two forms oforal and written. In the procedure of litigation, judges need to be carefully listened tothe statement of both sides so that to decide whether is guilt or not. In the proceedings,what the justification called "Youci"(有辞). The justification of the convicted alsocalled "Youci"(有辞), and if the conviction was not justified, then known as the"Wuci"(无辞). In Spring and Autumn Period, evidence can be divided into twoforms,that is verbal evidence and written evidence. The former is mainly manifestedwhat the words of witness, and the later mainly the "Yao"(要), contract(契) andthe files of the gonernment(盟府档案).In Zuozhuan(《左传》), the judgment were mainly manifested by the words of"Duan"(断),"Jue"(决)and "Zhi"(制)and sometimes, the "Shu"(数) is alsomeans the judgment. Means of implementation in Spring and Autumn Period weremanly reconciliation, impunity, and the conviction, and the later of which have the death penalty, public display(示众), exile, etc. There had mainly been four kinds ofreferees in Spring and Autumn Period, that is fact and reason(情理), precedent(先例), covenants(盟约) and command(命令)."Qing"(情) mainly refers to themeaning of the truth of the matter. Based on the fact of the matters in theadministration of justice, is considered to be performance of "loyalty"."Li"(理)means "reason", usually associated with "Zhi"(or "Righteous")(直). Precedent(先例)can be manifested in various kinds of forms, sucu as "Xianwangzhiming"(先王之命),"Guzhizhi"(古之制),"Gaoyaozhixing"(皋陶之刑),"Zhougongshiming"(周公誓命),"Dian"(典),"Zei"(则),"Chang"(常), etc."Zhouli"(周礼)usually appears as a precedent in the form. The previous generation of the Covenant(盟约)are also a form of aprecedent. Contemporary Covenant(盟约)mean theagreement between two or more parties, and the specific content was call "Mengci"(盟辞), which the major role was to determine the effectiveness of the Alliancereached by agreement. The authority of the Covenant was relied on its religiousfunction, that what the anticovenance would be subject to the curse and punishment ofGod and Spirits. From the point of view, command(命令)were mainly included"Ming"(命), order, oath, law, etc. From a publisher's point of view, it may be theking's command, or the command of the Qingdafu(卿大夫).In Spring and AutumnPeriod,"legitimacy" or "uncertainty" was mainly not the standard of theadministration of justice, but it does not just mean out of nowhere, or so-called Khadijustic(e卡迪司法)at that time. Generally speaking, it remains the times of Ritual Rule(礼治)by Patriarchal Aristocrat(宗法贵族)in Spring andAutumn Period, and witha strong feature of so-call chief politica(l盟主政治). Therefore, the administration ofjustice in the context, with the distinctive characteristics of the times. To sum up, itapperaed made the decision after discussing (议事以制), comply with therequirements of the "Li"(or Rite)(礼)and the pursuit of practical results.On the view of judicial,the events of cast punishment book on the tripod(铸刑书)reflects the changes of the referee way,that form made the decision afterdiscussing(议事以制)to the way of " legality "(罪刑法定), and from the referees on basis of "Li"(or Ritial)(礼)to Xingshu(刑书), and that is the reflection on theadministration of justice of the changes of patriarchal aristocratic feudal regime to theabsolute monarchy.