Author: Li Fengming
Source: Procuratorial Daily
The "Blood Law" is unreliable, and traditional China does not allow judges not to make rulings, and the only way is to choose the lesser of two evils. Ji Xiaolan commented: "The prison must not be broken, and there is no need to be outside of reason; the more reasonable it is, the more it cannot be understood." The ethical conflict mentioned in this statement is indeed a difficult problem to solve at the time.
Ji Xiaolan recorded many suspicious cases in the "Notes on Reading Wei Caotang" (hereinafter referred to as the "Notes"), among which there are both reasons for the unknown truth of the facts and factors that are difficult to determine the application of the law, just like Plato's cave, what he sees is often only the shadow of the truth. Ji's doubtful cases are literary reflections of traditional Chinese judicial concepts, characteristics and spirits, and can be summarized into the following three categories: doubts caused by ethical conflicts, doubts caused by lack of legal certainty, and doubts caused by backward judicial technology.
In the former residence of Ji Yun in Beijing, there was a plaque of "Reading Wei Caotang", which was later taken away by the Zhili Guild Hall and changed to the plaque of "Old Site of Yue Wei Cao Tang" in the Qi Gong Book
1
The core of traditional Chinese law is the gangchang, and ethics has an advantage over legal norms. In the case of ethical conflict, if there is no definite rank between different ethics, the choice becomes a problem. Ji's "Notes" records a number of such cases, such as the case of the child bride: both cases were created at the age of sixteen or seventeen, and the plaintiff said that the defendant was his child bride, and now that his parents have died, the defendant wants to abandon his marriage. The defendant rejected this allegation, saying that the two were brothers and sisters. Because both parents were exiles, one died and one was lost, so the surnames could not be confirmed in the township. Ask his friend, only to say that they are called brother and sister, and they don't know anything else. However, it is local practice for brothers and sisters to be proportionate to each other, and the testimony of the friends is not probative enough. At this point, if you want to find out, it seems that there is only one way to identify the blood. However, the authoritative forensic science work "Record of Washed Grievances" only contains the "bone drop method", which obviously cannot be used in this case. In this way, it can only be judged by the folklore of the "blood combination method", that is, the fusion or repulsion of two bloods.
However, the "combined blood method" was not used to identify this case. Perhaps the reason for this is that the "Blood Law" is not a normative means in the judiciary, and even if it has a deep cultural foundation, it is not easily adopted in practice. This scenario seems to be evident from another case contained in the Notes. In this case, the younger brother was unwilling to return the assets entrusted to his brother before going out to do business, so he falsely accused his brother of taking the son born abroad as an adopter, in order to exclude the son's inheritance rights. The government uses the "blood combination method" to conduct the identification, and the brother and his son are two bloody. His brother was not satisfied, and the thorny blood was tested with his own son and the two bloods did not melt, so he appealed on the grounds that the "blood combination law" could not be used as a basis. This embarrassing situation, as the people of the time said: dripping blood is not enough to become a letter.
The "Blood Law" is unreliable, and traditional China does not allow judges not to make rulings, and the only way is to choose the lesser of two evils. Comparing the two, breaking away and making mistakes is only a mistake in breaking the marriage; breaking the wrong is destroying human morality. In other words, the misbreaking of marriage is only against the filial piety of the parents' orders; the destruction of human morality is a beastly act. The weight of which is more important is clear at a glance.
Although the case was resolved, the judgment in this case did not clarify the facts, nor was it based on the law, which obviously left regrets. The reason why the "Notes" recorded it is also based on this. Regarding this case, Ji Xiaolan commented: "The prison must not be broken, and there is no need to be outside of reason; the more reasonable it is, the more it cannot be understood." The ethical conflict mentioned in this statement is indeed a difficult problem to solve at the time.
2
Legal certainty is a basic requirement of a legal ideal State and is essential to prevent arbitrariness and guarantee fairness. Lack of certainty, leaving legal loopholes, often leads to confusion in adjudication. There is such a hypothetical case in the "Notes": How to deal with a woman who is filial piety and adulterous? There are two opinions around this issue. The first is whether the two can absorb each other, only the heavier one. There are three views on this. First, filial piety absorbs adultery. The basis for this is that the highest crime of committing adultery is only a cane punishment, and not filial piety, which shows that the crime of filial piety is heavier than adultery. This countersumbar, filial piety is also heavy, and misdemeanors cannot be stripped of heavy blessings, so they should give up adultery and only reward filial piety. Second, adultery absorbs filial piety. Obedience and devotion are only small filial piety, and the abuse of relatives is the greatest filial piety, so filial piety should be given up and only fornication should be punished. Third, they cannot absorb each other. Filial piety and adultery are great virtue and great punishment, respectively, and the two cannot be absorbed from each other, but should be rewarded and punished separately. The second view was whether the two could be offset. There are also two views on this. First, they are indisputable. If the blessing of filial piety is reduced by the sin of fornication, it will make people think that filial piety is not blessed; conversely, the sin of fornication by filial piety will make people think that it is adulterous and innocent. Second, they should contradict each other. If because of filial piety, one does not commit adultery without sin, wouldn't it be more able to motivate one to fulfill one's filial piety? If, because of fornication, one is not blessed in filial piety, does not it make one more aware of abstinence from adultery?
In the end, this hypothetical case did not reach a unanimous conclusion, mainly because the code of conduct of filial piety and fornication could not be concretized, and there was no specific provision on whether or even how to absorb or offset them, and in practice it was often left to the judge's discretion, and the results were naturally inconsistent.
If this is just a hypothetical case, another case in Notes is more realistic. In this case, the husband went out to beg for food because of the famine and entrusted his parents to his wife. After years of hardship, under the embarrassment of being unable to support herself, her wife had to sell herself to survive. She sold herself to fulfill filial piety, but after her husband returned, she committed suicide. The question in this case is: How should the deceased be buried? Entangled, he had to sue the officials.
The judgment of the county order is relatively clear: it can be buried in the ancestral grave, but it cannot be buried with her husband in the future. The former is allowed because filial piety to the in-laws has not failed the ancestors; the latter is not allowed because the seller is out of control and has failed her husband. This judgment seems to be the end of both love and law, but this woman is still blind. Seeing this scene, his in-laws cried and defended: The daughter-in-law is a virgin woman, and the son does not raise his parents but entrusts him to the daughter-in-law, which is the fault of the son; because he sells himself because of filial piety, it is not the fault of the daughter-in-law. This family affair, do not have to worry about outsiders. The words and daughter-in-law seem to show the correctness of such a conclusion. However, the Yi people are still talking about it.
3
Due to the backwardness of judicial technology such as criminal investigation and appraisal, it is impossible to clarify the facts of the case, which is a difficult problem that is beyond the times, especially in ancient times. There is such a strange case in the "Notes": a certain official house was confiscated, the government ordered three infantry to guard, the snow was cold in the middle of the night, the three people drank to keep warm, unconsciously drunk, inadvertently the lights were kicked out, and the three people secretly beat each other until finally tired and rested. It could have been just a drunken drama, but when one of them died, two survivors were detained and interrogated.
The trial of the case was not difficult, and both admitted to jointly beating and killing people, and both of them admitted to their lives when they were sentenced to death. The problem is that one of the deceased cannot be killed by two people, after all, this is not a case of great rebellion and robbery, which has a statutory non-division of circumstances. Although both agreed to the fate, it did not mean that both of them were vying for their own destiny, and the government had to choose between the two. But who will be killed?
In the darkness, I don't know who started the attack, I don't know who beat whom, and I don't know who inflicted the fatal wounds. Although it is possible to torture and find a reason to choose the most important person, it is not the ideal ending. Fortunately, time was the best judge, and a month later, one of them died of injuries in prison, and the case was closed.
If there is modern forensic or trace identification technology, this case may not be complicated, but because of the lack of technology, many cases that can be simple and qualitative are also mysterious. For example, the case in the "Notes" is very mysterious: this case arose because two monks in a certain temple accepted two nights, which is an ordinary thing, and it is not expected that after one night, all four people will be missing, and the treasures in the temple and the dozens of gold carried by the Taoist priests are present. What is even more strange is that the bodies of the four people were found by a shepherd boy in a dry well more than ten miles away, and they were all unharmed after examination.
The old man who decided the case encountered a difficult problem: if he did not lose anything, he was not a thief, if he was old, he was not adulterous, if he was not injured, he was not killed, and the door was not opened, so how could he get out? Ten miles from the well, why moved to? Confused, he finally had to report the suspicious case, and shangguan could not refute it. If this case is real, the main reason why it is suspicious is that the judicial technology is backward, and it is obviously inaccurate.
The classification of the above three types of suspicious cases is only a rough approximation of them. In fact, the case of child brides is also related to judicial technology, and the case of mutual beating and death in the night is also related to the traditional bioethics of "one life and one arrival", and the dilemma of filial piety and adultery essentially has factors that lead to legal uncertainty due to unclear ethical ranks. Reflecting on this, we can appreciate one of the two traditional Chinese judicial logics, and understand that it is biased, and it is a reference for today's legal progress.
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