Research On The Chinese Traditional Idea "Death To The Killer" And Its Practice

"Death to the killer" or "life for life" has been long believed and practiced in China ever since the ancient times. As Xun Zi said, every king practiced it, though no one knew when it appeared. Why Chinese people embraced it so strongly? This is a problem deserved to discuss but not difficult to understand in the context of Chinese traditional culture. In ancient China, many kinds of concepts and knowledge call for and give bedrock to "death to the killer", such as the retributive justice view of suiting punishment to crimes, the idea of the Heaven punishing the crimes, the assertion to overawe criminal, and so on.The concept of suiting punishment to crimes has existed in Chinese law thinking all the time. "suiting"means fitting, suiting punishment to crimes means to let the punishment fit for the crime instead of be equal to the crime. However, since the dead could never be revive, and life was considered to be more valuable than everything else, and thus suiting punishment to crimes actually meant life for life in the Chinese criminal law system. Suiting punishment to crimes went deep into the soul of all Chinese people in the past, and so in judicial practice, upright law officers usually insisted on the concept of suiting punishment to crimes, including life for life punishment.The concept of suiting punishment to crimes often related to the doctrines of Heaven, ghosts and gods. The emperor was regarded only as a deputy of the Heaven, so his punishment to the criminals was said to be just the will of the Heaven. If the emperor or law officers would not give the criminals a kind of suitable punishment, the Heaven would necessarily drop plague or misfortune to the people, which would threaten the dominion of the emperor sooner or later. So that, the rulers could not disobey the Heaven's will. Instead, they had to punish the criminals suitably. It seems strange, but this kind of idea was only the indirect reflection on the people's justice desires. In any case, the doctrines of Heaven, ghosts and gods include suiting punishment to crimes and giving death penalty to the killer.At the meantime, the traditional assertion to overawe criminal also calls for death to the killer. This assertion made the ancient law tend to be crueler than what the criminal should be given to, in order to warn many by chastising one. The ancient Legalists deputed by Shang Yang, Han Fei canonized the assertion especially, and they established systematic theory on "executing cruel torture to decrease crime rate". The cruel torture theory was used not only to killers, but to killers undoubtedly. This theory has a bearing on the origination and characteristics of the ancient Chinese laws, even on the origination and governing style of the nation itself. Both the nations and the ancient Chinese laws originated in the wars, and so the saying "laws originated in wars, and war is united to law" is time-honoured. The origination of Chinese laws made the law in ancient China have the characteristic of criminal law or penalty. Law, criminal law and penalty was just one thing. This kind of criminal law did have some yield, but had no long time effect. Therefore, the morality (Li) was adopted more often than criminal penalty in ancient China, and people often said that Li prevented crimes from appearance and penalty gave punishment to the criminals. The rulers took the morality (Li) as the dominant factor, and they also paid much attention to criminal penalty though the strictness or leniency of penalty depended on the social states.Thinking dominates action, and thus the life for life view could exist not only in the mind, but also in the practice of legislation and judicature. In fact, death to the killer was the persistent principia in the Chinese legal system, and anything opposed to it would meet with resistance. The Wergeld custom outside was regarded as the symbol of wildness or laggard.Death to the killer was the persistent principia of the ancient Chinese legislation from the Gaoyao Law to the Law in the Qing Dynasty, even in the times when China was ruled by the minorities who disbelieved the view of death to the killer. The first Emperor Liu Bang of the Han Dynasty agreed on a three-point law, and the view of death to the killer has been widely known and become a law proverb from then on. Of course, the killer in the view mainly referred to the intentional homicide in a strict sense, including the killer of rubout, the premeditated murder, or the killer who killed because of fighting, etc. Meanwhile, death to the killer was also the persistent judicial principia embraced by the law-officers, unless there were special regulations. The opposite side to life for life view is to let the killer be alive still, such as remitting the killer or atoning for the killer's crime, which had always been rejected in ancient China for the reason that killers could not be alive.In Chinese history, no one felt the death to killers cruel while the aliveness of killers always aroused the feeling of unfairness, and there were a lot of examples showing the brawniness of life for life view, the revenge customs and the laws to foreigners in the Qing Dynasty are two good examples for the view. The truth of the revenge customs in ancient China is that people insisted on death to the killer, even if the killer should not be sentenced to death in accordance with law, and usually, the avengers were willing to be sentenced to death by law after their revenge succeeded. In the Qing Dynasty, the laws to foreigners might give up in many aspects except death to the killer, namely, all foreigners must be sentenced to death who had killed Chinese people. These two examples showed further that both the government and the mass held on the life for life view tightly.The life for life view embraced by the Chinese people is not the value or truth all over the world. Instead, the Wergeld system was popular in both the West and the around minority areas for a long time. In Germanic Kingdoms, the Wergeld system was quite typical, in the case of which the punishment to homicides was nothing special with the punishment to other crimes. Only when money lacked could killing in revenge appeared, for this reason, Henry Maine pointed out that "the penal law of ancient communities is not the law of crimes, it is the law of wrongs". The Wergeld custom was also popular in the minority areas of China. The custom was replaced by the so called advanced laws of the Han nationality when the northern minorities ruled China. For the southern minorities, esp. for the Tibetan and the Yizu people, the custom had existed in grain till today. They concerned more about the high payment for the life instead of other punishments.Why was the treatment to killers so different between China and Western countries? In the aspect of comparison, the direct reason lies in the different originations and character of the laws. In China, laws originated in wars and had the character of public law or criminal law, while in Western countries, laws originated in civilian struggles against aristocracy and had the character of private law according to which all damages could be amended by money or debts. The deep reason lies in the different backgrounds of politics, economy and values. Comparing with Western countries, the centralization of the state power in China was so strong that it could make retaliate and crack down on all kinds of crimes. In China, the economic character of petty farmers held the line of "A Home Under The Sun" and the laws' character of criminal law, while the commercial culture in ancient Europe laid a foundation of private law and the idea of debt. Specially, justice value was put higher than the value of profits according to the farming-repressing-commerce values based on the Confucian, and private settlements to the killers would be seen as "forgetting what is right at the sight of profit". Therefore, private settlements were forbidden in ancient Chinese laws, and it was impossible to replace penalty with compensation.There were some exceptional regulations to life for life principia by which the killers might avoid death in ancient Chinese laws. The killers were (1) those whose death penalty had been exempted by the emperor's permission, (2) the elder or better of the litigants, (3) those might be spared in the remit system, (4) the killers who killed people accidentally, (5) some of the killers who killed for defense such as protecting home at night, killing for grandfather's safety, etc, and (6) part of the killers in revenge whose killings were forbidden in laws but allowed based on the morality (the Li). In a whole, there had a lot of exceptional regulations opposite to life for life principia, but they are only exceptional regulations which serve as a foil to the existence of death to the killer principia.In ancient China, there existed some factors in judicial practice eroded death to the killer principia, though the rationality of the principia was seldom suspected. With the affection of retribution idea or Buddhism, the saying and doing of lifesaving to the alive instead of the dead came into judicial practice, some officers painstakingly exculpated the killer's responsibility for the offence, and illegitimate officials took the advantage of fraudulent practice or extortion. All of these were contradict to laws but brought into reality to some extent as the judicial official's idea or values. This tendency had been existed from the Song Dynasty and composed one of the factors eroding death to the killer principia in fact.The faith to life for life principia existed in grain because of being rooted in mass mind, and had deep and thorough affections because of its existence in grain. Death to the killer principia was still applicable to intentional homicide till the law reform of modern China. And even today, the mass voice of death to the killer is still quite strong. However, life for life principia is facing big challenges from both the world trend of death penalty abolishing and the fury arguments on it. The theory and practice of abolition to death penalty is undoubtedly negative to the traditional principia.Retribution and punishment were the two values and functions endowed to death penalty by the traditional law, therefore, the arguments to the preservation or abolition of death penalty focuses on these two aspects. Firstly, is the idea of retributive justice behind the times? Secondly, can death penalty maximally decrease crime rate? The idea and practice in traditional Chinese laws paid much attention to these two aspects, death to the killer fits to the two demands at one time, and whether they are sound or not is the key to the preservation or abolition of death penalty in China, and the key to insisting on or giving up death to the killer principia. From the aspect of retribution and justice, death penalty fits for murderers, for retribution demands suiting punishment to crimes. Retribution embodied justice in criminal law, by which death penalty holders believe that death should be given to murderers as retribution. The holders who insist on death penalty abolition don't think it necessary to give death to murderers as retribution, though they are not easy to find persuasion. Some Chinese theorists want to challenge the justice of death to the killer, and they haven't found persuasion either. From the aspect of punishment and utilitarian, the problem is whether the power of death to the killer is strong enough to keep crimes within limits. It is still a problem unable to be demonstrated, and neither side will give in so that they ask each other to raise evidence.It is obvious that there could be no way to fluctuate the justice of death to the killer, and it is difficult to deny radically the values and the traditional functions of death to the killer. In this condition, the abolition holders raise a banner of humanism and human rights, and say that death penalty is incompatible to the priority of human rights. But is death to the killer humanistic? Does the holiness of life exclude death to the killer? And whether is it absolutely intolerable or not to seize the killer's basic human rights? To all these questions, the point of view from the death penalty preservation is entirely opposite to that from the death penalty abolition, while the opinion to abolishing death penalty is far from being accepted widely.In summary, death to the killer was the unalterable principia in the backgrounds of Chinese traditional culture, and was the Chinese people's unchanged law faith and judicial practice for thousands years. Of course, the principia met some kinds of exceptional regulations, inimical ideas and adaptations, but its rationality had never been suspected. At the same time, killers'aliveness might arouse special indignation and opposition, and other nation's Wergeld custom would be out of tune with it. Only today China has to face the problem of death penalty preservation or abolition as death penalty abolition is becoming a trend all over the world. Undoubtedly, death to the killer is facing challenges from the times although it still owns its rationality and bedrock in mass mind.