Analysis Of Pragmatic Value Of Minority Criminal Law

Within certain ethnic minority inhabited regions, there often persists continual conflict between local customary laws and the official state law. In such contests, the customary laws do not always turn out to be the losers. On the contrary, they often gain greater support from the local people and demonstrate greater vitality than the state law, putting both law systems in awkward positions.A case study of the struggle between the Tibetan customary criminal law of Value of Life and the state criminal law is presented in this article. The Value of Life law is studied from the varied perspectives of both rival positions, including examination of aspects ranging from its meaning, origin, cultural and historical context to its various presentations in current affairs.From the perspective of the Tibetan people, the state criminal law is regarded as imposed by a foreign culture, and hence does not win widespread understanding and acceptance. It is considered unsuitable and is rejected when conflicts occur between the foreign culture and the Tibetan culture. Moreover, the state criminal law does not function well in terms of protecting the interests of the victims. It often happens that when a victim dies, the state law does not function properly to protect his and his family's interests well enough, leading to both human and financial losses to the victim's family. In such cases where loss of a human life is involved, people are certainly willing to choose the customary Value of Life law in dealing with disputes. Furthermore, in the heavy penalty doctrine, the state criminal law follows the Chinese traditional idea of criminal justice that"Those who kill shall be punished by death". However, the Tibetan people believe in Buddhism, uphold the rules of"Five Forbiddances"and"Ten Kindnesses", and consider killing for whatever reason to be sinful. They believe that the souls of those who commit such sin will be disturbed and that they will encounter retribution in their next lives. The Value of Life customary criminal law happens to rely on the same classical religious doctrine of the Tibetan Buddhism, and is naturally welcomed by the Tibetan people.There is great difficulty incorporating and codifying the Value of Life customary law into the official state criminal law, for a number of reasons: it is formed from various pre-existing customary rules, it depends on authoritative organizations of the society to execute, it is mainly disseminated and inherited orally as well as through behavior, it lacks clarity, and it conflicts with the legal principle of Crime and Punishment that is emphasized by modern criminal law. In addition, the Value of Life customary criminal law contains the idea of a strict hierarchy among people by birth and a person's value of life depends on his rank in the hierarchy. This belief violates the principle of equality of criminal justice. Also, innocent people often are implicated unfairly by the Value of Life law because they are relatives or fellow villagers of the criminal offenders, and such outcomes are not justified.These two different legal cultures each have their own respective advantages and disadvantage. One the one hand, abolishing the customary criminal law of Value of Life and forcefully enforcing the official state criminal law is not a good choice. Yet on the other hand, allowing the Value of Life customary criminal law to evolve recklessly is not beneficial to the construction of the socialist legal system. Rather, what is required is a comprehensive program involving construction of the criminal reconciliation system, consummation of autonomous laws and regulations in the ethnic minority inhabited regions, establishment of qualified judiciary and law enforcement agencies, transformation of traditional criminal prosecution patterns, improvement of living standards of the Tibetan area alongside guidance for culture renewal. Only then can the two legal systems function properly and fully to maintain social stability and promote regional development and progress for the ethnic minorities.