Benevolent Administration Of The West Zhou Dynasty And The Judicial Choice

Taking the rule of law amidst the benevolent administration and the benevolent administration amidst rule of law as a cut-in point, this dissertation offers a comprehensive study on choice between the benevolent administration and the rule of law in the West Zhou Dynasty. Except preamble and conclusion, it consists of five chapters.Chapter One focuses on the benevolent administration that is regarded as value basis for the rule of law. Widespread benevolent awareness is a precondition to the benevolent administration, while thoughts of benevolent administration come into being on the basis of such awareness of citizens of the Zhou Dynasty. The benevolent administration is rich in content, according to which, rulers should maintain a virtue of justness, generousness and forgivingness; be able to readily accept and cultivate the people, grant subsidies to the extent of supplies available, and carry out moral education; concern about people’s hardships, benefit them and relieve their corvee, to get them well-fed and well-clothed; select the virtuous and appoint the able, and introduce benevolent policies; and have one mind with the people, and listen to desires of the people. Rules should not seek ease and comfort, engage in tyranny, or strive for interests against the people. As a result, the foregoing definitely shows that the rule of law, under the benevolent administration, should inevitably choose basic values that punishments are imposed in a prudent, proper and enlightening manner, so as to reflect spirit and principles of benevolent administration, and launch military campaigns against those kingdoms who disrupt the order of benevolent administration, to resume or reinforce this order.Chapter Two chiefly discusses issues such as thought of cautious punishment under the benevolent administration, substantive and procedural guarantee for cautious punishment. When the administration is implemented in a benevolent manner, any punishment should be imposed cautiously, for abuse of criminal punishment is not in conformity with spirits and principles of the benevolent administration. The documents in West Zhou Dynasty that were unearthed and are being passed down reflect the thought of cautious punishment.“Explicitly stipulated punishment”,“having a fear of the law”and“imposing punishment and finishing litigations in an expeditious manner”as recorded in bronze inscription all indicate more or less thought of cautious punishment. According to the Book of History, rulers should not arbitrarily interfere with judges’affairs, so as to show the rulers’intent of cautious punishment. Judges should impose any punishment cautiously, refrain from kill the innocent, or even treat with leniency criminals who committed felonies, so as to display the rulers’virtue of caring for living things. Judges should verify and check complicated cases in public, free of rashly making judgments, and should try cases with mercy and care, without regarding trials as auspicious. According to the Book of Changes, if rulers keep diligent in benevolent administration and refrain from rashly imposing any punishment, everything would take its proper course. Judges should try cases with extreme care, thinking twice just like chewing, and then make judgments. As a suspect would modify his confessions again and again, judges should interrogate him several times to confirm them, and then impose appropriate punishment against him. By virtue of natural phenomena, the Book of Changes expounds the thoughts of cautious punishment, such as“imposing criminal penalty with caution”,“reviewing cases and reducing death penalties”,“trying cases without any fear”and“pardoning faults and forgiving offenses”. The thoughts of cautious punishment in the West Zhou Dynasty have substantive and procedural guarantee, making such thoughts implemented in terms of systems. Judges should, during trial of cases, listen to the people’s opinions, and make cautious punishment known to the public, a reflection of humanistic thought that emerged in the West Zhou Dynasty, in the application of law. The application of principle of cautious punishment is subject to restrictions, i.e. with the exception of major crimes involving life and property, as well as ones against religious ethnics.Chapter Three mainly deals with the education functions of the benevolent administration and the rule of law. To implement the benevolent administration, education should be taken essential. In turn, the rule of law with help of education by the benevolent administration would inevitably have functions of education, consequently maintaining the order of benevolent administration. This Chapter covers the education function arising from publicity of laws and orders, thought of judicial education under the benevolent administration, education function as reflected in judicial systems, education function of symbolic punishment, pursuance of no litigations, etc. In the West Zhou Dynasty, officials in charge of the justice also were responsible for the publishing and publicity of various criminal punishments and bans; just in this sense, we include the education function from publicity of laws into that from administration of justice. The thoughts of judicial education under the benevolent administration are mainly indicated in the Rites of Zhou, the Book of History, the Book of Changes, and other literatures. According to the Rites of Zhou, judicial adjudication and criminal punishments are a kind of education, which can remove the evil and follow the good. The Book of History offers a method of judicial education that persuasion should be used before imposing punishment upon the people, according to which, exercise of each criminal punishment is to ultimately educate the people, resume or reinforce the order of benevolent administration. The Book of Changes often employs metaphors to indicate moral education of criminal punishment, with an aim at keeping the people away from affliction of criminal punishment, making the people respect virtues and do good deeds, and ultimately meet the requirements of the benevolent administration. The function of judicial education is reflected not only by judicial philosophy, also by judicial system and practice. By using detention, imprisonment, corporal punishment, meditation, symbolic punishment and other judicial systems, the education function is exercised in specific criminal penalties, ultimately realizing the order of benevolent administration in which no disputes would be brought before courts.Chapter Four mainly discusses the relationship between the benevolent administration and fairness of the justice. The thought on virtue of moderateness, as a major part of the benevolent administration, determines that the justice should choose fairness and justness. The thought on virtue of moderateness derives from the concept of people in the West Zhou Dynasty on valuing moderateness, on the basis of which such thought came into being. The virtue of moderateness is an important part of codes of conduct for the monarchs, and also a code of conduct for their subjects. The virtue of moderateness is very important to judges because the fairness and equitableness of the justice depends on the fact that judges are equipped with the virtue of moderateness. In the Book of Changes, judges with virtue of moderateness are known as honorable officials. It is auspicious and favorable for litigants to let them adjudicate cases. If judges adhere to the virtue of moderateness, trials will be conducted in a fair and equitable manner, and the judgments will be completely accepted by the people. The Book of History insists that“judges with the virtue of moderateness but crafty and fawning persons are chosen to adjudicate cases”, so as to ensure fairness and equitableness of the justice. As recorded in the inscription, fairness and equitableness of the justice means that“no crimes will be punished unless they are serious enough”or that“only those crimes that are serious enough will be punished”. The fairness and equitableness of the justice requires judges to adjudicate cases in strict accordance with the law, and to pay much attention to use of various types of evidence, free of conviction based on subjective judgment. It also requires the parties to litigation to make oaths, ensuring the fairness and equitableness of the justice. In addition, direct appealing may be used to reach this end. In the West Zhou Dynasty, apart from fairness and equitableness of the justice, hierarchically there also existed differentiated treatment in the application of law; in other words, the justice in the West Zhou Dynasty is the unity of opposites, namely the fairness and equitableness and the differentiated treatment.Chapter Five mainly deals with the relationship between the benevolent administration and the punishment through military expeditions. In the mind of the people in the West Zhou Dynasty, military expedition is a kind of criminal punishment, also a part of criminal judicature. Since military expedition is a kind of criminal punishment, it shows that the targets must be guilty, and criminal charges mainly include crime of armed rebellion and crime of disobedience both of which definitely bring destruction to the order of the benevolent administration. The purpose of punishment through military expeditions is to penalize those kingdoms that undermine the order of benevolent administration, to resume or reinforce this order. The subject implementing the punishment through military equitable manner, and the judgments will be completely accepted by the people. The Book of History insists that“judges with the virtue of moderateness but crafty and fawning persons are chosen to adjudicate cases”, so as to ensure fairness and equitableness of the justice. As recorded in the inscription, fairness and equitableness of the justice means that“no crimes will be punished unless they are serious enough”or that“only those crimes that are serious enough will be punished”. The fairness and equitableness of the justice requires judges to adjudicate cases in strict accordance with the law, and to pay much attention to use of various types of evidence, free of conviction based on subjective judgment. It also requires the parties to litigation to make oaths, ensuring the fairness and equitableness of the justice. In addition, direct appealing may be used to reach this end. In the West Zhou Dynasty, apart from fairness and equitableness of the justice, hierarchically there also existed differentiated treatment in the application of law; in other words, the justice in the West Zhou Dynasty is the unity of opposites, namely the fairness and equitableness and the differentiated treatment.Chapter Five mainly deals with the relationship between the benevolent administration and the punishment through military expeditions. In the mind of the people in the West Zhou Dynasty, military expedition is a kind of criminal punishment, also a part of criminal judicature. Since military expedition is a kind of criminal punishment, it shows that the targets must be guilty, and criminal charges mainly include crime of armed rebellion and crime of disobedience both of which definitely bring destruction to the order of the benevolent administration. The purpose of punishment through military expeditions is to penalize those kingdoms that undermine the order of benevolent administration, to resume or reinforce this order. The subject implementing the punishment through military...