| Each rules and regulations originates from a special space,so its birth and development must be bound with the culture formed on the specific geographic features and unique life style of a nationality.The culture is the prerequisite and background which a system begins and develops,thus its influence upon the system is not only presents in the past,but also in nowadays changes.Some systems will ultimately wither away with the social vicissitudes,but the spirit inside will not vanish.Contrarily,it will root in the mind of the people as a cultural tradition and influence the present and future changes in different means.Furthermore,it also plays a role after changes finish.So,for those countries whose motive of changes is from outside,the influence of tradition is much obvious.Only when it finds the suitable soil to exist and develop in the traditional culture,can the new system get the approval,that is to say,although the old system will die out,but the spirit which fits for the local geographic features and ethnic characters will not disappear,so the new system should take in the reasonable factors and integrate them into its body to realize the modernization in the pace of the innovative changes of the old system.The new system through this kind of changes can keep harmony with the old one because it comes from the inner of traditional culture and has the trace of the former culture as well as abandons the inharmonious factors.Certainly,the process of readjusting is quite painstaking,thus people must find motivations and intellectual support from the history of the culture.To China Tibet area,maybe it is a meaningful way to explore the method of its legal modernization by the means of the innovative changes of traditional legal culture.Tibetan is a minority with a long history and wide distribution,and in its long history, Tibetan has formed its original and distinctive customary law and disputes resolution system. Tibetan customary law is a part of Tibetan culture,so it has embodied the psychology,idea, sensibility and value.This dissertation,centered on the Disputes of Tibetan Life Compensation,under the guidance of the theories of legal anthropology,legal sociology, developing rights and criminal law and the guidance of research approach of legal anthropology and history,probes the natural and cultural background which the Tibetan Customary Law of Life Compensation comes into being and develops,history of Tibetan Customary Law of Life Compensation formed and improved in Tibetan area,the history of the attitudes of central governments towards Tibetan Customary Law of Life Compensation as well as the mutual relationship of statutes and customary law and the functions of Tibetan Customary Law of Life Compensation.The author points out that the contradiction between Tibetan Customary Law of Life Compensation and statutes should be rethought,the criminal statutes should take in the reasonableness of Tibetan Customary Law of Life Compensation. Victim-Offender Mediation as the circumstance of assessing punishment is a system coming from Tibetan traditional legal culture,so it can lead Customary Law of Life Compensation into modern transition.The article is divided into five chapters;the specific composition and main story are as follows.Chapter One is Introduction,including three parts,namely,the questions putting forward, the revival of relevant research history,the materials used and main research methods.First, through rethinking the supremacy of statutes,the author fell into a sense of questioning, which directly led to the think of Tibetan Customary Law of Life Compensation.Then,the author reviewed the history of unofficial law especially that of Tibetan Customary Law of Life Compensation and the author pointed out that there are some problems in the research, such as the researchers haven’t been released from the shadow of statutes-centralism,haven’t done enough research work in the field of customary criminal law for sake of fear,haven’t combined macro-study and micro-study well,and haven’t paid enough attention to the cultural background which systems exist.Last,the author presents the research materials and methods detailed and clear.The research materials used mainly are from field work,they are cases,dialogues and paper investigation.Besides field work materials,there are also other kinds of materials used;they are archives,cases in relevant study and annals of counties and so on.For research methods,legal anthropology,legal sociology and history research are used as well as a try to match case study and history research.Chapter Two chiefly sums up the theories of legal anthropology and legal sociology aroused by questioning the concepts of law and problems in the study altogether with the theories of developing rights and criminal law so that the study can be laid on a solid theoretic foundation.This chapter contains two parts.Part 1 researches the rethinking of legal anthropologist and legal sociologist in the dimension of history.The author argues that the rethinking of legal anthropologist and legal sociologist at least do much help to legal study in four areas such as the concept of law,legal pluralism,cultural logic back law and research methods,which lead to break the myth of statutes monopoly as well as overturn the universe operation of western law and the conclusion that the western law can promote the modernization of China’s legal construction.Part 2 examines the theories of right remedy and its influence on the transform of the criminal justice in western countries from 1960’s.The "imprisionization" and "slow socialization" of the prisoners and the "victim-oriented" criminal policy made people realize that there are drawbacks in prison correction and in right remedy,researchers begin to find solution in the human history,they find Restorative Justice and Victim-Offender Mediation which originated from ancient society can help solve problems.Foreign developing theories of right remedy and the transform of the criminal justice give us a new perspective,theoretic foundation,criteria and reference frame to observe Tibetan Customary Law of Life Compensation.Chapter Three analyzes the natural,economic,cultural backgrounds of Tibetan Customary Law of Life Compensation and their influences,including four parts.After brief introduction to the theory about the relationship between the culture and the environment,Part 1 discusses the geographic features,economic forms and means of production which mold Tibetan Customary Law of Life Compensation.Part 2 examines Tibetan tribe and its influence on Tibetan Customary Law of Life Compensation,particularly,diversity because of different places,class difference and the continuance.Part 3 describes the basic spirits of Tibetan Buddhism and its influences on Tibetan Customary Law of Life Compensation.The basic spirits of Tibetan Buddhism are harmony,life turn and retribution which the nature of disputes, penalty way,the usage and meaning of life compensation and who the most authoritative arbitrator is.Almost all Tibetan believe in Tibetan Buddhism,religion is the life style of Tibetan,so religion is cream of Tibetan culture besides Tibetan legal culture.In Part 4,the author thinks that the ethnic psychology plays a role in the choice of Tibetan when they meet with life disputes.The psychology of non-suit and collectivism explains why they choose life compensation as the best solution.Chapter Four probes the local history of Tibetan area and the history of the attitudes of central governments towards Tibetan Customary Law of Life Compensation before the Democratic Reform.The best way to explain and understand a kind of culture is to reconstruct the way it goes,i.e.to reform its history.The first half sees the reconstruction of local history of Tibetan Customary Law of Life Compensation.As a means of expression and practice,the local history of Tibetan Customary Law of Life Compensation can be divided into four periods,that is,the period of custom,the period of systematization,the period of abatement and the period of revival and perfection.In the latter half,the author constructs the history of attitudes of Yuan Dynasty,Ming Dynasty,Qing Dynasty and the Republic of China. These four central governments took different ethnic policy,so their attitudes to Tibetan Customary Law of Life Compensation are quite different,for example,Yuan’s denial,Ming’s noninterference,Qing’s pragmatism and limited tolerance of the Republic of China.Chapter Five turns to reality and discusses Tibetan Customary Law of Life Compensation and its functions during and after the Democratic Reform.The Democratic Reform is a reconstruction of culture by the newly -founded government in order to set up a wholly new style of life and ideology.At that time,this kind of movement is necessary and liberates thousands of servant peasants.But after 1978,Tibetan Customary Law of Life Compensation comes back to life,so the author describes four relationships between Tibetan Customary Law of Life Compensation and statutes,which indicating that whether you recognize or not,Tibetan Customary Law of Life Compensation is a vital real existence and Tibetan Customary Law of Life Compensation still functions,and its functions is not always contradictory to which of statutes.So Tibetan Customary Law of Life Compensation can consolidate and replenish the malfunction of statutes in the light of function.They can work together to solve the disputes.The last draws the conclusion.After summing up the theme of the paper,the author realizes Tibetan Customary Law of Life Compensation is an organic part of Tibetan cultural tradition,and culture is the background for people living in it.So suppress or noninterference goes extreme,the best way is to find solution inside. |
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