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The History Of The Liangshan Yi Customary Law Rheology

Posted on:2009-11-24Degree:DoctorType:Dissertation
Country:ChinaCandidate:W Q YanFull Text:PDF
GTID:1116360248450664Subject:Legal history
Abstract/Summary:PDF Full Text Request
Most researchers on minority law pay much attention on the rules, which are the products of many generations, and which still influence minority people's life. They are referred to by the local people when asked . However, only abstract rules can never be sufficient to have the full picture of minority laws. The recent researches collect cases, which is a step further in the study of minority laws. Cases tell the true facts of minority legal life and case study is the efficient way to research the laws of the minority areas where unwritten laws are adopted. But cases only represent the legal operation at one period of time, what about the law before or after this? Laws can not be studied as the static, cultural institution. Besides, the rules can not be neglected.The author does this research with the consideration of both rules and cases, he treats the law as the transforming system and research it within the history. At the same time, the political, economical as well as power relation is stressed in the dissertation.The first chapter deals with the theory and the method of this research. The second part of this dissertation tells the general information about Liangshan Yi, which is the geographical, economical, historical and religious background of Yi minority law.In the third and forth part, the author analyzes the operation of Yi law at the period of Old Liangshan Area, the time before Communist Party Government. Through case study, the dissertation proposes that Yi law at this period was the only law and had the supreme authority, laid upon the clan organization called Jiaz. It handled the homicide cases differently according to the relationship between the murderer and the murdered. That means if the murder was committed inside the clan, then the killer would be punished seriously according to the Yi law. He would be forced to kill himself without others' interference. The Yi law ruled that if any member of the clan killed him,then the latter would violate the norm, which stated that no one could take away the life of any other member. If the killer ran away, then the clan would send family members to catch him, and would expel him from the clan if they failed.If the the murder was committed between different families, then the penalty would be different according to the power of the families. It was said that when the powers of the victim and the killer 's clans were equal, the rule of Yi law could be executed inpartially. However, Yi law was under the most circumstances obeyed by the people because of the existence of the institutions guaranteeing the fairness of the practicing of the law. These institutions include the choice and operation of the local judeges, public opinion, and religious ideaology.Liangshan Yi law also treated the cases distinctively in accordance with the status of the parties. When the murder was committed against the Black Yi, the superior class in Yi society by the White Yi, the punishment was more severe than that committed against the White Yi by the Black Yi. The rule of One Black Yi Equal to Four White Yi was adopted when the case was solved, but this norm could be interpreted in five different ways, of which what was chosen was totally determined by the power of the victim family. Naturally, when the family of White Yi killer was weaker than the Black Yi, the most severe interpretation would be chosen. Generally speaking, the Black Yi enjoyed the privileges of the society and more legal rights, but the White Yi, as the inferior, had their ways of protecting themselves.The most important marriage institution was the marriage within the same class, if any female member of Black Yi married to or had sexual relation with White Yi, she would be sentenced to death. While any male member of Black Yi married to or had sexual relation with White Yi, he would be punished less severely. Besides this, marriage outside the Yi nation was also forbidden. All the marriage was arranged and decided by the parents and brothers without the consideration of the willingness of the people who would get married, since marriage was treated as a kind of method to unite more families to strengthen the power of the families. While marriage was the unity of different families, the divorce was always followed by the wars between two families, because being divorced was regarded as the dishonour to the family.The found of Communist Party government in Liangshan Yi Area ,the Democracy Reformation and the following political movements, which regarded both the traditional clan and the Yi law as backward and counter-revolutionary, and which tried every means to eradicate them, greatly influenced the history of this area and brought a new chapter for the Yi law. The fifth part of the dissertation retells the whole history of this period, which was full of Great Mass Movements, leading to both the damage to the traditional culture and the hatred against the Han nation by the Yi people.The sixth and seventh chapter discuss the cases of murder and marriage at the present time. The author, after comparing the same kinds of cases between the Old Liangshan period and present, proposes that the state laws greatly influence the function and operation of Yi law, which has been deprived of the jurisdiction of some of the cases. For example, the local law can not deal with the murder which is directly investigated by the state law. And the family can never force any of its members to kill himself. The Yi law can only deal with the compensation problem brought forth by the parties who are not satisfactory with the sentence of the state law. Of course it functions in the cases while the state does not regard as the crime, however, the state law still has its final saying on those cases treated by the Yi law. What's more, some parties, when they think they are weaker , will ask for the help of the state law whose interference will bring new problems as the conflict between two legal systems on the principls, logic and punishing ways are existing.In spite of the fact that the marriage institutions have greatly changed, the local law on marriage is still obeyed by the local people, this fact shows that although the government tried its best to transform the marriage institutions through the Mass Movement, the local people still are fond of the traditional law instead of the so called "modern, advanced system." The conception of status still influence people's marriage, marriage or sexual relation outside the same class will be punished by the clan,though the way is quite different from the Old Liangshan. Marriages are still arranged by the parents, and every marriage is carried out by paying some money to the parents. All these traditional systems had been criticised during the Mass Movements,but they are still operating in the Liangshan Yi society today, it tells us that any reform will meet failure if it does not show respect to the local culture and the will of the local people. It is a lesson for the rationalists who believe too much in the radical reform. However, compared to the failure of radical movement, the market economy has brought about great changes.Finally, in the last chapter, the author concludes some reasons why local people still choose the Yi minority law instead of the state law:the familiarity with both the language and knowledge, the clan organization, the religious control, the authority of the local judges, the less expense of the Yi law and the final result is reached through discussion and negotiation. It is said at the end of the dissertation that the Yi law, because of the challenges from both the political side and the market side, has its own problems such as the distortation, the disruption. It is purported that the success of rule of law in the Yi minority area totally depends on the cooperation of local law and the state law. Specifically speaking, the local law can solve the disputes of peoples when the state does not provide any regulation, the state law can absorb some norms of the local laws and make the state law more suitable to the people's life, since the most part of the state law comes from the outside and is different to the local people's life. Thirdly, the state court judegs can cooperate with the local judegs. They can work together to solve the dispute ,thus making the state law and the local law cooperate with each other.
Keywords/Search Tags:Liangshan Yi Customary Law, History, Power, Transformation, Case Study
PDF Full Text Request
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