Study On Tibetan Customary Law Of "Compensation For Life"

The tusk of this article is to analyze theoretically and interpret sociologically the historical heritage, practical development and judicial application of Tibetan customary law of "compensation for life", which is regard as the conic symbol in Tibetan traditional legal culture. According to subjectively understanding and interpreting, this article studies the source, text, significance and phenomenon of Tibetan customary law of "compensation for life". By studying, this article discusses and describes the root causes and basic features of this system and the associated unique characteristics of social organization and structural form, in order to achieve the awareness and understanding to Tibetan customary law of "compensation for life" as phenomenon and the concerned legal behaviors, analyze and argue the rational and legitimate components in this customary law, explain its value and significance existed, and, combining with the current state legal texts and recent provisions about eliminating flaws, conceive its communication and interaction with state legislations to promote harmonious Tibetan areas according to constructing and innovating the related systems.In this article, except the introduction and conclusion, the text is divided into seven parts.Chapter 1 demonstrating mainly that Tibetan customary law of "compensation for life" is the universal rule in legal ethnography in particular stage of social development. According to studying Tibetan customary law of "compensation for life" and Germanic people's "atonement money" system in Chinese and Western legal system comparatively, this article explains historically that different countries or ethnics use the homogeneous legal system when facing many same or similar social problems in the course of human history, reveals that the customary law of "compensation for life" (or called "atonement money" system) is not the only compensation system with money applying to Tibetan and Germanic peoples. Deep excavation and concrete interpretation to the specific concepts, system context and cultural implications of this homogeneous legal system can depth and broaden the understanding to nature of human kind, at the same time, which, on one hand, proves that the customary law of "compensation for life" is the universal rule in legal ethnography, on the other hand, proves irrefutably that the value selection, system construction and legal recognition of human are all holistic, continuous and interlinked for either ancient or modern peoples in special society and time in spite of the barriers in space, time and field.Chapter 2 investigates mainly the origin and generation of Tibetan customary law of "compensation for life" longitudinally. In order to eliminate the danger rejecting differences and eliminating diversity in the comparatively researching approach seeking common function in different legal cultures, this chapter, with the theories and methods of historical documents, excavates and highlights the heterogeneity between Tibetan customary law of "compensation for life" and Germanic people's "atonement money" system, investigates deeply and historically the origin and generation of Tibetan customary law of "compensation for life" in genealogy firstly. According to stage the evolution of Tibetan society, this article shows the evolutionary path of Tibetan customary law of "compensation for life" of thirteen hundred years from Tubo king to democratic reform, illustrates that the course from conflicting, gaming, fighting between Indian Buddhism introduced by Tubo king and Bon religion——the indigenous religion in Tibet to merging and breeding Tibetan Buddhism is also the important period of budding, formation, establishment and development of Tibetan customary law of "compensation for life". The intermittent applying and tortuous course for thousands of years is not only the consequence of cultural evolution, but also the inevitable consequence of social development. In this article, this article finds especially that the game and fight between Tubo king's power and Bon religion's power is the important cause leading the significant changes of politics, economy and culture in Tibetan society since Tubo, in which, Tibetan customary law of "compensation for life" is the famous legal symbol leading the millennium struggling history.Chapter 3 analyses theoretically the origin and characteristics of Tibetan customary law of "compensation for life". With the theory and method of sociology of law, this article describes finely and interprets theoretically the specific elements of acts based on Tibetan customary law of "compensation for life", points out the unique behavioral characteristics and important principles in it, reveals and reflects the social stratification and hierarchy under the initial state of law in Tibetan society, responsibility system, the principles and the unique alliance system in Tibetan primitive tribal society, explains that Tibetan customary law of "compensation for life" is the important institutional construction of social control and order form in Tibetan. At the same time, according to carding academically sort of definitions of the customary law of "compensation for life" in schools, this article clarifies the connotation and extension of the customary law of "compensation for life", proposes new concepts to update the knowledge to characteristics and attributes of Tibetan customary law of "compensation for life".Chapter 4 analyses empirically the phenomenon of legal and social behavior and actual cases of applying modern Tibetan customary law of "compensation for life". By analyzing empirically and interpreting jurisprudentially the typical cases of applying Tibetan customary law of "compensation for life" from democratic reform (1950's) to modern time (early 21st century), this article explains that Tibetan customary law of "compensation for life" has never been out of social dispute resolution in Tibetan in history, on the contrary, it has been conflicting and interacting with state law, and shows different characteristics of application in the following three stages:1950's——1980's, 1980's——early 21st century and the ten years of early 21st century. With the establishment and evolution of state legal system, the conflicts and tensions with state law of Tibetan customary law of "compensation for life" show different modes of operation such as property of application, suppressed, private application under the shadow of state law, etc. With abolishing flaws in legislation, construction of related systems and playing dynamic role of judges in judicial practice, Tibetan customary law of "compensation for life" shows very limited, fine and gradual integrating trends with state law, but this process is obviously micro and very long.Chapter 5 analyses and criticizes the rationality of Tibetan customary law of "compensation for life". With the theory and method of sociology of law, this article analyses and investigates the basis of social organization, politics and religious culture of the operation of Tibetan customary law of "compensation for life", explains that the thousand-years fixed long-term organizational structure of Tibetan society, especially tribal organizations, political system combining politics with religion and religious culture of Tibetan Buddhism have been deciding and affecting the controlling and maintaining way of social order in Tibetan, which, showing extremely effective connection in social control in Tibetan, are the genes forming Tibetan customary law of "compensation for life", decide the fate of emergence, development and change of Tibetan customary law of "compensation for life", and construct the historical and present reasonable basis of the operation of Tibetan customary law of "compensation for life". Although political and social systems depended by Tibetan customary law of "compensation for life" have changed fundamentally since democratic reform, the difficult producing and living way under agriculture and livestock alpine regions and the vulnerable environment under natural livestock makes the tribes, the grass-rooted organizations of Early human society which will exist for long, play the role similar to that of modern social insurance system out of the grass-rooted organizations established by state law. Correspondingly, the way of dispute resolution in Tibetan customary law of "compensation for life" highlights its irreplaceable role and status. Therefore, Tibetan customary law of "compensation for life" will exist for long or exist with different forms.Chapter 6 analyses and investigates the legitimacy and accessibility of Tibetan customary law of "compensation for life" in contemporary Tibetan society. Legitimacy is connected inextricably with the theory of reasonability and property. Tibetan customary law of "compensation for life", the written or unwritten customary law connected with production arid living in early human society, is inconsistent with the requirements of modernization of legal system from form to content. According to anglicizing the rationality in value and instrument of Tibetan customary law of "compensation for life", this article indicates that although the rationality in instrument of Tibetan customary law of "compensation for life", which originates in the teachings and ethics of Tibetan Buddhist, conflicts externally with the formal rationality of state law, there aren't deep and hardly compatible conflicts and confrontations between Tibetan customary law of "compensation for life" and state law in rationality in value. There are common knowledge and pursuit in respecting and safeguarding the legitimate rights and interests of victims and their families, recovering or rehabilitating social relations destroyed by offenders, stressing the spirit of reconciliation, defending the spirit of the honor of individuals, families and groups and building the harmonious society, etc. between Tibetan customary law of "compensation for life" and state law. As a result, the conflicts in formal rationality between Tibetan customary law of "compensation for life" and state law can be legalized, integrated and eliminated according to criticizing laws ideologically, perfecting flaws in legislation, especially using the dynamic role of judges in judicial practice, but in which, the acts avoiding state law and other wrongful acts inconsistent seriously with the basic spirit of state law must be prevented mainly. The erroneous understanding of "social effect" in judicial practice must be clarified; the performance such as stressing compensation based on identity and level, complying with religious authorities, abiding by religious and moral rules in the application of Tibetan customary law of "compensation for life", etc. must be sure to some extent and led by state law to realize its reasonable demands; the state law should express sympathizing understanding to the unreasonable demands of Tibetan customary law of "compensation for life" when criticizing it.Chapter 7 discusses the interaction with state law and trends of Tibetan customary law of "compensation for life". This article proposes that the rationality in value of Tibetan customary law of "compensation for life" should be recognized limitedly according to system innovation in legislation and judicature to relieve the demands of rationality and legitimacy contained in Tibetan customary law of "compensation for life", explains that the interaction and communication between Tibetan customary law of "compensation for life" and state law is long-term and continuous. According to discussing the values such as justice, security, efficiency, fairness, order, utilitarian, etc. contained in Tibetan customary law of "compensation for life", this article points out that the application and inherit of Tibetan customary law of "compensation for life" is not only the inherit and expansion of Tibetan legal culture, but also the norm selection under the context of legal pluralism and reconstruction of value in China, which reflects the returning application of Tibetan ancient customary norms, also notes that the old value contained in customary law overlaps Tibetan people's empirical living domain, illustrates that the reasonable elements of multiple legal cultures (especially the legal cultures in minority's area in China) are the valuable local resources of rule of law should be concerned about and learn from in legal modernization in China. With the further mutual understanding and integration between state law and folk law, the unfavorable factors to modernization of legal system in Tibetan customary law of "compensation for life" will be eliminated gradually, but its pursuit of the core values of human reasonability will be permanently retained and adhere to.The study of Tibetan customary law of "compensation for life" is an analysis of archaeology and genealogy to the origin and formational context of legal norms of early human society, is a discovery of universal laws of a similar nature during the period of particular society, is an unavoidable encounter between modern legal system and ancient legal system in China during transition period. In this process, tension, conflict, game, and struggle are going without saying, but the dialogue and consensus to the rationality in behavior and society established in interaction is advantage to reaching understanding between the new and old systems. And on this basis, we look forward to constructing a pluralistic, cooperative and harmonious society.