Study Of The Legal System Of The Western Xia

This dissertation consists of three parts: introduction, the main body and the conclusion, among which the main body comprises eight chapters.IntroductionThis section of the dissertation mainly introduces the theoretical significance and practical value of the topic chosen for the present dissertation, the purpose, scope and method of the research carried out for the present dissertation as well as the current state of both domestic and overseas academic research into the Tangut law of the ancient Western Xia Regime of China(also known as the Tangut Empire, which was established by the nomadic Tangut people and existed in northwestern China between 1038 AD and 1227 AD).The Main BodyChapterⅠdeals with the formulation, main content and compilation format of Tangut codes. This chapter first elaborates on the formulation and main content of the Tangut code TianshengLüling, literally translated as Legal Code of the Tiansheng (literally Heavenly Prosperity) Reign which is a monumental code composed under the decree of the Li Renxiao, Emperor Renzong of the Western Xia Regime. This chapter proceeds to treat the format and uniqueness of the compilation of Tangut codes, arguing that compilation of Tangut codes was completed by drawing from a large fund of heritage from prevailing codes composed by contemporary mainstream Han Chinese dynasties, such as the TanglüShuyi, or Commentaries on the Codes of Tang Dynasty, and the Song Xing Tong, or The Uniform Penal Code of Song Dynasty; there are some noteworthy innovations: first, in terms of compilation format, there are significant differences between the Tiansheng Lüling and the legal codes of Tang and Song dynasties; second, articles in Tangut legal codes are arranged in a three-part format, namely, the hypothesis, facts of a crime and the punishment, which is unprecedented in the Chinese legal family; third, in terms of its composition, the Tiansheng Lüling is compiled within an all-inclusive framework that takes all the branches of the law under its umbrella. The compilation format of the Tiansheng Lüling was an integrative format, which covers both substantial law and procedural law; and although criminal law is predominant in Tiansheng Lüling, civil law, military law and religious law also take up a significant part of it. The chapter ends with a systematic comparison of the Tiansheng Lüling against the Commentaries on the Code of Tang Dynasty and the Uniform Penal Code of the Song Dynasty, through which it is discovered that the majority content of the former is not available in the later and even for the parts that the two do share similarities, there are numerous remarkable differences, except for a few legal notions such as the Shi'e (Ten Abominations, which is the collective term for ten types of felonies, namely, Plotting rebellion, Plotting great sedition, Plotting treason Contumacy, Depravity, Great irreverence, Lack of filial piety, Discord, Unrighteousness and Incest) and Bayi(the system of exemption of eight categories or persons from criminal prosecution).ChapterⅡexamines the Tangut criminal justice system. It discusses the kinds and titles of punishments, and punishment adjudication system of the Tangut legal code Tiansheng Luling. From the perspective of the relevant provisions in Tiansheng Luling, it is found that, the same as the Codes of Tang and Song Dynasties, major crimes such as the ten admonitions are punishable by severe punishments; however, compared with the legal codes of the Tang and Song dynasties, the punishment of flogging with cudgel plays a much more important role in the Tangut criminal punishment system, which testifies to a tendency toward leniency in the Tangut legal system. In terms of the application of law, the legal system of Tangut Empire inherited the concept of meting out punishments on the basis of the social status of the accused. Furthermore, although the Tangut criminal punishment system also features a System of Five Punishments as the legal codes of Tang and Song dynasties do, the former is nonetheless different from the latter in that the Tangut system of five punishments, unlike that of the Tang and Song dynasties which consists of five types of punishment namely, caning, flogging by cudgel, imprisonment with forced labor, banishment and capital punishment, does not include banishment as a form of punishment. Instead, the Tangut system of five punishments comprises caning, flogging by cudgel, imprisonment, forced labor and death penalty, making the Tangut law the first in the Chinese legal family to distinguish short-term imprisonment from long-term imprisonment.ChapterⅢelaborates on two theses: one, the Tangut social economy dominated by their nomadic way of life and the formulation of Tangut livestock law; two, the Tangut military law system. The Tangut law provides stringent protection for government-run husbandry; it also provides detailed measures for the protection of both government-owned and privately-owned livestock as well as pasture and water source used for husbandry. Any breach of the livestock law is severely punished. The Tangut legal code Tiansheng Lüling features a well-developed livestock law system, which is in line with the characteristics of the Tangut people who are a dominantly nomadic nation. Furthermore, The Tangut state of Western Xia also has a well-developed military law system. For example, the military legal code Zhenguan Yujingtong (literally translated as Uniform Jade Mirror Code of the Zhenguan Reign), which is made during the reign of Emperor Chongzong of the Tangut Empire, clearly prescribes the behavior norms for Tangut soldiers from the perspectives of rewarding those who performed meritorious military service, punishing the guilty and promoting the victors; it also stipulates rules for matters pertinent to the assembly and march of the Tangut armed forces. The guiding principle of Tangut military law is "reward according to one's merits and to reward and punish those who really deserve". The Jiansheng Lüling, which was composed during the reign of Emperor Renzong, includes a detailed military service system, which is formulated by revising the early military service system of the Tangut Empire, which strongly demonstrates the vigorous martial spirit of the Tanguts and their unique national characteristic of universal military service by the entire Tangut population.ChapterⅣexamines Tangut Religious Law and Ethnic Custom Law. This chapter is divided into two parts. The first part, which focuses on the Tangut religious law, begins with an introduction to the primitive religion practiced by ancient Tangut people. It proceeds to introduce the rise to prominence and prosperity of Buddhism in the Tangut Empire and the dependence of the Tangut rules on Buddhism; this chapter ends with a detailed discussion of the Tangut religious law system by elaborating on the administrative mechanism, title-conferring and costume-bestowing system, examination and recruitment of monks, identification and regulation of the monk population, as well as the privileges enjoyed and obligations borne by monks and Taoist priests in the Tangut empire. The Tangut state, on the one hand protects both Buddhism and Taoism, on the other hand, however, it exercises strict regulation on the two religions by setting both central and local administrative bodies for religious affairs. The Tangut state is the first regime in the Chinese history to use and confer the title of dishi (it means the highest title of buddhish monk which was given by the Tangut state). The second part of chapter four focuses on the Tangut custom law. It reviews such notions in the custom law as fuchou (vendetta), mengshi(oath), heduanguan (a lay officer who plays the role of both mediator and judge), peimingjia (a rough equivalent to the Germanic notion Wergeld, which a reparational payment usually demanded of a person guilty of homicide or other wrongful deaths), which are relics of ancient Tangut customs. The principle of hejie(compromise and settlement) which originates from Tangut customs is recognized and quoted in the section entitled "punishment for those who surrender themselves to justice or pay back what they owe shall be reduced by half of Volume Three of the Tiansheng Lüling; volume 14 of the same legal code provides that those who cause physical injury to another person may redeem himself by compensate the victim in kind, such as with cattle or sheep, which notion is inherited from ancient Tangut custom law.ChapterⅤdiscusses nongovernmental pacts between ordinary Tangut people and the protection provided by Tangut law for Tangut nongovernmental pacts includes, which include land sale pact, pawnshop pact and loan pact. The form of Tangut pacts is basically the same as that of nongovernmental pacts, with some minor differences. Like as provided by legal code of the Chinese Tang dynasty, the basis for Tangut nongovernmental pacts is consensus between the parties to the pacts, which consensus is protected by Tangut law. With a view to avert potential social problems caused by usury, Tangut law prescribes vigorous limitation on interest rate of loans.ChapterⅥfocuses on the litigation and judicial system of the Tangut Empire. The Tangut state has in place such organs as judicial organs, judicial system, litigation system and prison administration system to deal relevant litigation and judicial affairs. Tangut law explicitly provides limitations on the practice of inquisition by torture in criminal proceedings; it also stipulates that prisoners who are sick and female prisoners who are pregnant may apply for medical parole. In terms of prison administration, Tangut law stipulates and guarantees prisoners' basic living conditions. All of the foregoing reflects the influence of the Confucian legal principle of "to be cautious with penalty and to be benevolent in governing" on the Tangut litigation and judicial system.ChapterⅦexamines Tangut Law of Domestic Relations. Tangut codes, which follow the Confucian legal principle of "taking family ethics as the core of law", attach great importance to li or rites as an important vehicle to maintain and regulate such domestic order as those between the senior and the junior, the elder and the younger, etc. As with the gradual feudalization of the Tangut society, the domestic relations system is becoming more and more mature, the Tangut legal code of Tiansheng Lüling finally establishes the Confucian family ethics as its guiding principle. By a review of how the law makers of the Tangut Empire integrate the Confucian mourning apparel system as well as punishment for breach thereof into Tangut law, and an analysis of the Tangut principle of classifying relatives and the indiscriminate appellation system for different groups of relatives, this chapter draws the conclusion that Tangut Empire has established the principle of distinguishing lineal relatives and collateral relatives and the principle of family hierarchy similar to those prevailing in contemporary mainstream Chinese dynasties, which services for the basis on which the Tangut people, who are nomadic and quite different from the ethnic Han Chinese who are the mainstream followers of Confucianism, come to accept the Confucian family ethics. However, the fact that a largely indiscriminate appellation system for different relatives still exists in the Tangut society indicates that some relics of the ancient customs of the Tangut people are still alive. A comparative research of provisions on mourning apparel system in Tangut legal codes reveals that the majority of the provisions on mourning apparel system in Tangut law are borrowed from legal codes, rites, orders, decrees and regulations of the Tang and Song dynasties, especially from the DaTang kaiyuanli(Code of Rites Composed during the Reign of Kaiyuan of the Great Tang Dynasty); a further comparison of the provisions on punishment for breach of the mourning apparel system in Tangut and Tang legal codes reveals that punishment prescribed in the former is far less severe than that in the latter, indicating that the Tangut takes a selective approach in absorbing the mourning apparel system of mainstream contemporary Chinese dynasties. This chapter also reviews the Tangut legal principle of "Tongju Gongcai" (family members living together shall share their property) and the adaptation made to relevant provisions borrowed from Tang and Song dynasties on the basis of the principle. As Tangut legal codes are deeply influenced by Confucian family ethics, the principle that those who refuse to inform against a family member who has committed a crime shall not be punished is enshrined in the Tangut legal code Tiansheng Lüling, which also rigorously forbids family members from violating each other's rights. Privileges that originates from Confucian legal thought on relations between family members, such as the principle that the merits of ancestors may redeem or alleviate one's crime and the principle that people no matter innocent or not may be punished for being related to or friendly with somebody who has been convicted of an offense are accepted and enshrined in Tangut legal codes.ChapterⅧanalyzes the influence of Confucianism on the Tangut Legal System. This chapter begins with an analysis of the reasons why Confucianism is able to exert such profound influence on the Tangut legal system: imitation by the Tangut rulers of the government system of mainstream Chinese dynasties and their veneration of Confucianism as practiced by mainstream Chinese dynasties, the inheritance of Confucianism in the writings by Tangut scholars, the influence of the Confucianism which is centered on "filial piety" on the social customs of the Tangut an changes in Tangut family structure. This chapter proceeds to discuss the influence of the Confucian principle of "being reverent to the sovereign, filial to one's elder family members and esteem officials" on the Tangut legal system, the influence of the Confucian principle of "be cautious in punishing and be benevolent in governing" on the Tangut criminal adjudication system, the Confucian legal thought of "governing the state with moderate laws and punishing offences with temperate penalty", as well as the influence exerted by Confucianism on the prison administration and litigation system of the Tangut Empire.ConclusionThe conclusion further defines and condenses the viewpoint of the present dissertation; it proposes that the Tangut law is an integral component of the Chinese legal family in that the legislation of Tangut law is profoundly influenced by Confucianism, the backbone of traditional Chinese law; the Tangut legal system enriches and supplements the physiocratic nature of Chinese legal family. it also reviews the principle of the Chinese Legal family that both the legislative and judicial power shall rest with the central authorities of a state as is observed in the Tangut code Tiansheng Luling; The conclusion also argues that the codification format and the content of the Tangut legal code Tiansheng Luling is an innovation and development of Chinese legal family. All the foregoing leads to the conclusion that the Chinese legal family itself is an aggregation which combines the legal consciousness and legal principles of all ethnic groups, especially those of the Han ethnic group and that Tangut legal system, which is centered on the Tiansheng Luling is an integral component of Chinese legal family.