On The Performances Of Judicial Discretion Of Ancient Judges

With the ancient literature named Collection of criminal cases as the object of study, by analysis and decipherment of historical cases, the thesis intends to prove the universality of judicial discretion in the ancient judicial practice and analyze the factors that the ancient judges considered in the progress of judicial discretion, the reasons and the value of judicial discretion in ancient times.The understanding of judicial discretion of ancient judges will be provided in the introduction. The body is divided into the following three parts.The first part shows the universality of judicial discretion of ancient judges. There are two aspects in this part. One aspect is the introduction of collection of criminal cases and The Law of Qing Dynasty. Collection of criminal cases which is very precious was one of the official judicial files that were completely preserved. The Law of Qing Dynasty was the last law of Feudal society which correspond the cases in Collection of criminal cases. The other is the classification of the cases. The cases are divided into three types according to certain standard: the first type is that the cases fit the law rules totally; the second type is that the judge thinks the criminal should take legal responsibility but requires the investigation on the truth; the third type is that the cases didn't have correspondent law. The third type has accounted for the very great proportion.The second part is the key point of this paper. There are five aspects in this part.Firstly, inquiring the meaning of law using"qingli". Here the"qing" means concrete plot. The ancient judges carefully distinguished the differences between this case and another case, stressed the uniqueness of the cases. Following the concrete plot, ancient judges inquired the means of the law or changed the legal sentences to make appropriate penalties.Secondly, Influence of clan-law ethics is offered. Ethics has been dominant in the ancient times. The ethics emphasize the differences in status between different persons. The influences of Confucian Thought first performed in the legislative field, but the influences also performed in the judicial field. Ancient judges sometimes made judgments considering the relations of the parties.Thirdly, the pursuit of substantive justice is put forward. The law is a tool to maintain feudal ethics,"qingli"sometimes surmounted the law. Justice in ancient judges'mind is"tianli". Ancient judges didn't abide the law to pursue the"li".Fourthly, the deference of social customs is proposed. Social customs is common idea and behavior in some association. The paper indicates that the social customs is one of the factors that influence ancient judges.Lastly, sympathy and likes or dislikes of ancient judges, which come from judicial process not from the legislators, are considered to be one of the influencing factors as well.The third part analyses the reasons and effect. With regard to the reasons, it can be classified into the following four types: reason in legislation, reason in thought, reason in technology, and purpose of judicature, respectively. In ancient times, the judges didn't only the judges but the administrative officers. The purpose of justice is to achieve a long-term stability. The effects can be patted into positive effects and negative effects. At first, we can see the value of judicial discretion from an ancient case. Judicial discretion of ancient judges not only makes fair justice of some case come true but also affects the construction of social law order. Everything has two sides. There are many negative effect of judicial discretion. There are many cases that ancient judges sacrifice the universality of law in order to pursue fair effect. The performances of judicial discretion of ancient judges also provide a tool to make optional explanation and abusiveness of law. In the meantime, judicial discretion of ancient judges makes some negative thoughts expand, further strengthening the control of people's thoughts.To conclude, ancient judiciary realizes the value through judicial discretion. The ultimate value of ancient judiciary is not to enforce the law completely, but to construct a harmonious society that is based on clan-law ethics.