一、西部少数民族习惯法在西部地区刑事司法实践中的重要意义

　　西部意味着丰富的资源和开拓上的滞后性，无论从发达国家的曾经还是发展中国家的现在我们都能轻而易举地得出这个结论。当中国今天面临着改革开放的不断深入，加入世界贸易组织后经济上的进一步繁荣时，西部以其丰富的矿物、旅游资源和广阔的市场潜力引起了中国政府高度重视和世界各国的深切关注，西部开发由此成为了一项世界性的重大工程。但西部开发的过程不只是一个经济开发的历程，伴随着经济开发的是对西部人文环境的全方位了解和调整。而本文就是以西部人口中占绝大多数的少数民族的族内习惯法为研究指向，并以此为“催化力量”来实现改善西部治安环境，创造民族性刑事司法体系的重要目标。

　　民族习惯法是千百年来通过口头传诵、书本记录和碑刻等方式，涉及扩张到社会生活的各个方面，为本民族广为传承、接受的行为规范。由于它植根的乡土性，内容的生活性，运作的内控性和保持的恒定性使得其有着高度的稳定性、延续性和群体认同性，作为一种传承、积淀和整和了数千年的制度形态，它凝集了本民族的心理和情感，它是很难消失或失效的，它在本民族心中有着极高的权威性。那又有什么比利用最权威的东西去说服和解决问题更为有效的呢？在多年的司法实践中，我们也不难看出民族习惯法与国家制定法一道，通过“风俗的统治”发挥着干预社会生活、调节人际关系的功能，起到了维护民族秩序、促进民族地区和发展的良好效果。尤其在受外界冲击较小，生产力没有教大发展的西部民族地区，民族传统意识浓厚，家族观念盛行，习惯法作为族内人行为的尺度维系着族内的安定，而族内的安定就是整个西部区域安定的前提。这就使我们不得不考虑认真研究民族习惯法，将其进行适当的嫁接移植来完善我们的刑事司法体系，从而实现最终的目的----维持秩序，保持安定。

　　现在随着现代文明化的推进，有部分学者骨子里有否定民族传统的意识。但是我们应当从法制化推进过程中出现的种种症结中总结出一个道理，那就是国家制定法不是万能的，国家司法职能部门不可能是面面俱到的，法律也有其难以克服的障碍和矛盾。尤其像中国这样一个多民族的、社会发展极不平衡的国家，在巨大的历史跳跃、独特的历史条件、地理环境以及文化素质下，是不可能在短期内改变原来脱胎于母体社会发育程度上的差异，仅靠国家成文法典的制定和贯彻实施是不行的。而且一个社会如果把解决争端的重担全部诉诸法律，求之于司法工作人员，它所导致的结果之一就是可能造成“司法爆炸”的危机，即诉讼成灾，司法工作人员工作负荷过重，解决争端事与愿违。所以我们一定要重视“法外之法”---民族习惯法的作用，把国家制定法的理念以正确的途径灌输到民族习惯法的运用之中，利用民族习惯法的权威性和说服力来实现控制犯罪，维护安定的目的。

二、西部少数民族习惯法与现行刑事法律制度之间的适应性和相斥性

（一） 现阶段我国西部少数民族的传统习惯法与现行刑事法律制度相互适应的一面：

　　1、 法的起源的上的传承性。在我们研究国家制定法的起源时，明确指出习惯法是制定法的重要起源之一。而中国社会是一个十分典型的由众多民族组成的民族国家，由此民族习惯法也极为盛行。早在古代统治者们就或明或暗地认可少数民族习惯法甚至将其纳入国家制定法之中。如元朝时，成吉思汗编纂的《大扎撒》就是将民族习惯法进行汇编并将部分引入朝廷的制定法中。虽然今天中国社会性质发生了重要变化，法律步入了现代形态，但民族习惯法仍然深刻影响着国家法的制定，并成为其重要起源之一。

　　2、 法的功效上的一致性。无论是国家制定法还是习惯法其主要目的在于维护秩序，促进安定。在现行刑法中视为犯罪而禁止的偷盗行为也为各少数民族习惯法禁止。直到解放前尚处于原始社会末期的西盟佤族，其习惯法对偷盗行为的处罚已有初犯和累犯的区别。民主改革前处于游牧封建社会的哈萨克族的法律对盗窃罪的处罚极其严酷：“有人盗窃被发现，须赔还价物的三个九倍。如果把盗窃犯在当场捉捕搏斗时杀死，不偿还命价”。侗族的传统法律也对偷盗行为严加禁止。

（二） 西部少数民族的传统习惯法与现行刑事法律制度相斥的一面：

　　1、 民族传统习惯法与现行刑事法律制度在犯罪范畴上的不适应，具体而言，就是罪与非罪的矛盾，即现行刑事法律制度视为犯罪的行为，民族习惯法中视其为无罪。此类行为大多导源于少数民族的生产方式、生活方式和宗教文化。例如“毁林开荒”的原始农耕方式至今仍在为数不少的少数民族中作为族员工作方式之一规定在习惯法中，仅在云南省就涉及哈尼族和独龙族等十几个民族中。因这种农耕方式而发生砍伐森林开荒种地的行为，往往破坏森林资源，触犯刑法规定的盗伐、滥伐林木罪而为现行刑法视为犯罪。但作为民族传统的、被族内认可的生产方式之一，它却在习惯法中不被视为犯罪。再如，现行刑法把不满14岁的女子视为幼女，而将与其发生性关系的行为视为犯罪。而早婚习俗在习惯法中却是名正言顺的作为婚姻制度加以规定。女孩子到13、14岁时，便为许多少数民族视为成为举行成人礼，此后便可参加男女间的社交活动，男子与他们发生性关系或者结婚是为习惯法所允许，而不认为具有社会危害性而加以谴责，更不用说惩罚。

　　2、 民族的传统习惯法与现行刑事法律制度在刑罚手段上的相斥，主要表现为民族传统文化对犯罪行为的处罚一般采用罚金或放逐的形式，而现行刑事法律制度则视罪行轻重分别有罚金、剥夺自由权利、生命权利等几种处罚。居住在云南的景颇族，其习惯法中对杀人、伤人罪的处罚，不判处罪犯死刑，而要求赔偿被害人的“命价”。伤人的则要根据受伤的部位和器官分别予以不等价的物质赔偿。而坚持“命价”赔偿原则更为严谨的就是藏族，受宗教的影响，他们认为灵魂不灭，人可以轮回，所以他们不希望以结束杀人犯的生命来作为对一个既将轮回的人的赔偿和惩罚，却坚决要求罪犯赔偿被害者的命价。

　　3、 民族传统习惯法与现行刑事法律制度在刑事纠纷裁判方式上的相斥性。现行刑事法律制度要求对刑事案件的审理、判决，以及对罪犯的制裁，都必须依照法定程序，由专门机关的专门司法工作人员进行。而在民族习惯法中对各种案件却是主要由当事人及其亲族会同村社长老或头人解决。这种裁判方式直到现在仍然普遍存在于部分西部民族聚居区。

三、在存在差异的前提下，调整二者之间的距离，共同构筑符合西部实际的刑事司法体系

（一） 现在已经采取的变通措施

　　1、 执行“两少从宽”的政策，即对少数民族公民犯罪人员少捕少杀，在定罪量刑时均从宽处理。此类案子有：云南西双版纳州景洪县1984年查处流氓轮奸团伙一案，其中25名当事人均为当地哈尼族青年。县公安局以流氓轮奸罪提请批捕，县检察院批准逮捕13人。后在州检察院深入查证案情，听取群众意见后，认定当事人的行为属民族陋习，不构成犯罪，除对其中已满18岁一个当事人（因其他轻微犯罪）决定依法免诉外，其余全部作无罪释放处理。

　　2、 参照民族习惯法处理少数民族公民犯罪案件。如青海藏族地区的杀人案件，当地习惯法是以赔命价的方法处罚犯罪。这种习惯法在本地区一直盛行。在当地司法机关对犯人判刑后，还必须赔偿命价，只有赔偿命价以后，才能尽弃前嫌，重归于好，否则被害人亲属必欲兴师动众实行血族复仇。为避免伤害案件再度发生，当地司法机关摸索出了一些经验，“行之有效的办法是，按照法律处理命案的同时，由法院或政府出面，会同民族、宗教上层人士，与以调处。对被害人的损失，以当地中等人家财产的一半为标准进行赔偿”。如1988年，青海省同仁县瓜什则乡牧民与循化县岗查乡牧民因草山纠纷，几次发生械斗事件。1990年初，青海人民政府调查裁定了这一由来已久的双边草山纠纷。文件下发后，双方群众一致要求政府派赛仓活佛和叶雄活佛参与处理双边草山纠纷遗留的处罚赔偿等各种问题。为妥善解决双边草山纠纷遗留问题，消除隔阂，稳定双边的局势，两位活佛在政府的授权下，会同当地公安机关和群众代表对械斗中人员死亡问题和赔偿标准在《刑法》原则范围内作了协商，最后妥善解决了问题，维护了地方治安的稳定。

（二） 在习惯法与西部刑事司法实践对接中所做的进一步思考

　　1、 分析民族心理，整合民族文化，统一司法精神。每个民族由于生活环境和生产化进程的不同，会出现不同的思维方式、宗教信仰和生活生产习惯。尤其在西部，由于交通不便、信息闭塞，再加上文化生活赤贫，文明化步伐较发达地区相对而言要慢。在这种前提下，对西部的刑事司法就不能与完全现代化的发达地区一概而论，我们应该本着实事求是的态度，悉心研究民族心理，选取民族易于接受的方式将国家制定法和现代司法的精神理念渗透到民族群众中，让少数民族真正服从于法律，而不仅是受威慑，在被迫的状况下“假意接受”。例如在云南省彝族部落里，有一个熟悉习惯法并作为执行者的群体，他们被本民族人尊称为“德古”或“莫萨”。他们熟知习惯法和案例，并仅以公平和明智来维护自己的身份，而不是通过选举或者其他途径，所以群众对他们十分信服。我认为，在当地组建司法队伍时，就应当考虑挑选一些文化素质、政治觉悟高的“德古”加入其中。对“德古”进行现代司法教育和培训，并利用“德古”精神上的权威性，将国家制定法逐渐融入到当地司法中去。

　　2、调查并归纳民族习惯法，粹优去粕，丰富司法体系。

　　我们必须充分了解西部民族习惯法，作为传统文化的重要内容，作为世代传承的一种精神，习惯法已经深深铭刻在各民族心中，它们不仅在历史上起过维护社会秩序的作用，而且在当今也还对各民族社会发生深远的影响。任何民族群体的发展，都只能在各民族传统文化基础之上的发展。而作为传统文化中的重要组成，习惯法中不乏蕴藏着富有科学性和更为人性的东西值得我们借鉴。如在劝善惩恶、禁偷治抢、保护山林和农业生产的习惯法中，就有许多先进的理念和措施，国家应该采取顺应、融合的过渡政策，在条件成熟时，有意识的吸收、认可这部分习惯法，并融入、过渡到有关的法律法规中，使之成为制定法的一部分。而对一些落后的甚至与国家制定法相冲突的习惯法，则要经过长期、有效的法制宣传教育，逐步提高他们的学法和服法的自觉性，逐步让他们放弃落后的习惯法。在中国清朝时期，当政者就很明智的针对不同民族地区，结合民族特点制定了相应的法律措施。如在蒙古族聚居地，先后颁行过四种律例，该律例一方面认可了蒙古族习惯法的法律效力，另一方面也将内地法制的内容参加其中，促进少数民族法律文化的演进。从历史中我们也可以看出，我们切不可采取那种不顾少数民族的习俗和感受，甚至企图通过立法来改造甚至摧毁民俗的做法，那是不人道，也是适得其反的。

　　3、 充分发挥民族区域自治制度中司法自治的力量，以社会学中犯罪行为的社会危害性为标准，进行刑事司法实践。我认为在中国的当前状况下，各民族区域自治地方应根据市场经济的发育程度和民族文化素质的高低状况为参数，创设与本地区民族文化相契合的一种“中间地带”，在这个地带内，依靠自治司法机关的司法权限，从犯罪是危害既定社会关系，依法应受刑罚制裁的行为这个概念出发，确定民族地区罪与非罪，重罪与轻罪的界限，并容许依靠民族习惯法进行调控，而国家制定法作为一种牵制和引导的力量。例如一些民族的早婚习俗，导致男性公民与不满14岁的幼女发生性关系的行为，因其为习俗，其主体无疑地也具有群众性，当地社会包括此种行为的直接客体及其亲属均不认为此种行为对女方会产生危害作用。就行为的主体而言，他不是违背整个社会或女方及其亲属的意愿，也认识不到其行为对女方健康的危害性，因而也就不存在故意犯罪的动机和故意要破坏既定社会关系的目的。就当地社会来说，群众也将此种行为视为理所当然。在这种前提下，当地司法机关就要充分考虑该行为的背景，如果将其一概视为犯罪而追究刑事责任，则有可能因行为的广泛性而导致打击面过宽，因违背民族群体意志而导致对法律的不理解甚至反感等等结果，反而阻碍了民族法律的演化。

参考书目：

2高其才《中国习惯法论》2

2谢邦宇、黄建武《行为与法律控制》2

2刘广安《简论清代民族立法》2

杜荣坤《论哈萨克游牧宗法封建制》

向零《侗款乡规及其演变》

尹少亭《云南的刀耕火种---民族地理学的考察》

陈光国《藏族习惯法与藏区社会主义精神文明建设》

刘金和《云南边疆民族地区犯罪和执法问题的探讨》

　　注：这是我二○○二年十月随《中国警务报道―――西部行》节目摄制组制作节目时，在当地少数民族的风俗习惯的启发下撰写的一篇文章。由于时间仓促，不妥之处，请老师指教。

I. Importance of Western China’s Ethnic Common Laws in the Practice of Criminal Justice

Western China implies rich resources and belated opening up. Both developed and developing countries like China today can easily come to this conclusion. China today is further prospering economically with the deepening of reform and opening up and the entry into the WTO. Western China with its rich minerals and tourism resources as well as its vast market potentials has aroused great attention from both the Chinese Government and other countries of the world. Thus, Western development has become a worldwide project. But Western development is not just a process of economic development. Along with the economic development there will be an all-directional understanding and readjustment of Western China’s cultural environment. This article is intended to make a study of the common laws prevailing inside the various ethnic minority groups who account for the overwhelming majority of the population in Western China. With this as “catalysis,” the article works towards the important goal of bettering the security environment and creating a nationwide criminal judicial law system in the region.

An ethnic common law (or customary law) is a code of behavior inherited and accepted by the group for centuries through oral communication, book recording and tablet inscriptions. It involves and stretches into all aspects of social activity. It is deeply rooted in the native soil and featuring everyday livelihood in contents; it is operated through internal controls and preserved in fixed forms. Thus, it is highly stabilized, continuous and identified among the masses. As a form of system that has been inherited, accumulated and integrated millennia, the code of behavior concentrated the mentality and emotions of an ethnic group enjoying very high authority in the hearts of the group people. It is no easy thing to bring an end to it or to make it invalid. But then what could be more effective than using the most authoritative thing as a means of persuasion and problem tackling? In the judicial practice over the years we can also easily find out that ethnic common laws, together with the state laws, can function in interfering social activities and regulating person-to-person relations through the rule of customs and habits. This would achieve good results in maintaining proper ethnic order and promoting ethnic regional development.

This is especially true in the Western ethnic group regions where outside impact is small and no major development has taken place in productive forces, traditional ethnic awareness is strong and the family concept is highly influential. There, the common laws preserve the inner-group stability as the yardstick for behavior among people within the same ethnic group. And inner-group stability is the very prerequisite for the stability for the whole Western region. That is why we must seriously study ethnic common laws and appropriately graft or transplant them to our criminal justice system so as to realize the final goal of maintaining order and preserving stability. With the progress of modern civilization some scholars have essentially negated the awareness of ethnic traditions. But we must sum up a principle from the crucial points that have appeared in the course of promoting legislation, that is, state laws are not almighty. It is impossible for the state judicial department to attend to everything. Laws, too, are faced with some insurmountable obstacles and contradictions. This is especially true in a country like China, which has many ethnic groups and where social development is extremely unbalanced. Under the unique historical condition of a great historical leap, and with the present geographic environment and cultural quality, it is impossible to change the difference in social development borne out of the parental body, within a short span of time. It won’t do to rely on the formulation and implementation of state statutes alone. Furthermore, a crisis of judicial explosion will result. In other words, there will be a disastrous load of litigation, the judicial personnel will be overworked and everything will go against our will in the settlement of disputes. Provided we as a society place all the workload of dispute settlement on laws and the judicial personnel. That is why we must attach great importance to the role of ethnic common laws as an “extra law.” We must infiltrate the concept of state law legislation into the application of ethnic common laws through correct channels and utilize the authoritarian and persuasive power of the common laws to realize the goal of controlling crimes and maintaining stability.

II. The adaptability and exclusiveness between the Western China ethnic minority group common laws and the current criminal law system

1. The adaptable aspects of the present-stage Western China ethnic traditional common laws to the current criminal law system

(1) The inheritance of law source. In studying the source of state laws, it should be clearly pointed out that the common laws are one of the important sources in law formulation. Chinese society is a very typical country composed of many ethnic groups. On this account, ethnic common laws are most prevalent. Since ancient times rulers have recognized, explicitly or implicitly, the ethnic common laws or even incorporated them into the state laws. The Great Law edited by Genghis Khan during the Yuan Dynasty was based on the compilation of ethnic common laws while introducing some of them into the Dynasty statutes. Although the Chinese society of today has taken on an important change in character, and laws have taken on a modern form, ethnic common laws still have a deep impact on the formulation of state laws and become one of their important sources.

(2) Unanimity of law effects. Both state laws and common laws are mainly aimed to defend order and promote stability. Thefts banned under the current criminal laws are also banned in the common laws of the various ethnic minority groups. The common law of the Ximeng Wa ethnic group in the late period of primitive society on the eve of the Liberation already differentiated preliminary criminals from repeat ones in meting out punishments to thefts and burglaries. The law of Kazarhk ethnic group in the nomadic feudal society on the eve of the democratic reform was extremely brutal in its punishment of thefts and burglaries. “Thefts and burglaries once discovered shall be punished 3 X 9 times of the stolen amount. No compensation shall be made if and when the thief is killed red handed. The traditional law of Tong ethnic group also strictly prohibits thefts and burglaries.

2. The exclusive aspects of Western China’s ethnic minority groups’ traditional common laws from the current criminal law system

(1) Non-adaptability of ethnic common laws to the current criminal law system in terms of criminal framework. Specifically, this is a contradiction between crime and non-crime. That is to say, behaviors regarded as criminal under the current criminal law system are regarded as non-criminal in ethnic common laws. Such behaviors mostly stem from the mode of production, style of life and religious culture of ethnic minority groups. For example, the primitive farming mode of “destroying forests for land reclamation” remains as one of the work modes stipulated in the common laws among quite a number of ethnic minority groups. In Yunnan Province alone, this involves some one dozen ethnic groups such as the Hanis and the Dulongs. The behaviors of felling trees and reclaiming barren land as a result of such farming mode are regarded as criminal under the current criminal law because they often involve damaging forest resources in violation of criminal law stipulations on illicit logging and abusive felling of trees. But as one of the ethnic traditional modes of production approved by ethnic group internally, this is not regarded as criminal in the common laws. For another example, the current criminal law regards a girl below 14 as non-age and the behavior of having sex with her is regarded as criminal. On the contrary, this is stipulated as fit and proper under the early-marriage system in the common laws. A number of ethnic minority groups regard girls of 13 and 14 as fitful for holding adulthood ceremonies and taking part in social activities between the two sexes ever since. The common laws permit the stronger sex to have sex with or get married with the girls of 13 and 14 without condemning the act as harmful to the society, not to speak of meting out any punishment to it.

The exclusive aspects of ethnic traditional common laws from the current criminal

The exclusive aspects of ethnic traditional common laws from the current criminal-law system in terms of means of punishment. This is mainly manifested in the fact that ethnic traditional culture usually punishes criminal acts by fining and expulsion while the current criminal laws system adopts several ways of punishment such as fining, deprivation of freedoms and rights and life rights according to the seriousness of the crime. For the Jingpos who live in Yunnan Province, the common law stipulates that the murderous criminal shall compensate the victim for what is referred to as “life price” instead of sentencing him to death penalty. A criminal who commits injuries shall be punished to pay a different price of material compensation according to the part or organs wounded. The Tibetans are most strict with the principle of “life price” compensation. Under the influence of their religion, they maintain that the soul is imperishable and man is subject to samara. They don’t want to end the life of the murderer as a compensation and punishment to some one soon to transmigrate. But they resolutely demand a “life price” of the victim from the criminal.

(3) The exclusive aspects of the ethnic traditional common laws and from the current criminal law system in the modes of criminal-dispute judgement. Under the current criminal law system, the handling and judgment of all criminal cases as well as the sanctioning of the criminals are all to follow the legal procedures. It is up to the professional judicial personnel of special organs to operate. But under the ethnic common laws, it is mainly up to the clients and the kinsmen, together with the elders or chiefs of the village community, to settle all the cases. Such a mode of judgement is still very popular in certain areas in Western China where ethnic groups live in compact.

III. Bridge the Gap between the two and join efforts to build a criminal judicial system that conforms to the actualities of Western China under the prerequisite of existing differences

1. Flexible measures already adopted

(1) Pursue a policy of fewer arrests and fewer death penalties and greater leniency. To be more specific, to make fewer arrests and give fewer death sentences to ethnic minority criminals and to give leniency treatment when passing judgement and quantifying the crime committed. Under such a category of cases there was one that occurred in Jnghong County, Xishuang Banna in Yunnan Province in 1984. It was a case of investigation into a gang of rascals raping by turns. The 25 clients in the case were all local young people of the Hani ethnic group. The county public security bureau asked for arrest permit on charge of rascals raping by turns. The county procuratoriate approved the arrest of 13 of them. After an in-depth investigation of the case and heeding the opinion of the masses, the procuratoriate concluded that the behavior of the clients was non-criminal. The act should be categorized as an evil habit of the ethnic group. It was decided to set free all the clients as innocent except one who had reached the age of 18. He was exempted from litigation (on account of some other slight offence).

(2) Handle ethnic minority citizens’ criminal cases in reference to ethnic common laws. For example, cases of murder in Qinghai Tibetan ethnic group areas are punished by compensation of life prices under the local common law. Such a law prevailed in the area over the years. After passing sentences to the criminals, the local judicial organ had to demand compensation for life prices. Only after making such compensation can the past grievances be dismissed and friendly relations can be restored. Otherwise, the relatives of the victim would inevitably instigate a mob for bloody retaliation. To avoid the recurrence of such injury cases, the local judicial organ has ferreted out some experiences. “The effective method is as follows: While dealing the murderous case according to law, the court or government should make representations in coordination with the upper strata ethnic and religious personages. The losses of the victim are to be compensated on the criterion of one half of the property of a local average family.” For example in 1998 in Qinghai, fights with weapons broke out between the herdsmen in Guashize township of Tongren county and those in Gangcha township of Xunhua county over the issue of grassy hills. In early 1990 the Qinghai People’s Government made an investigation that resulted in a ruling on this long-standing dispute. After the issue of the document, the masses of both sides unanimously demanded that the government would dispatch Living Buddha Saicang and Living Buddha Yexiong to join in handling the various questions left over by the bilateral dispute. To seek a proper settlement of the questions, remove estrangement and stabilize the bilateral situation, the two Living Buddha’s were authorized by the government to join in. They joined the local public security organ in consulting with the local mass representatives over the deaths and the norms of compensation within the framework of the principles set in the Criminal Law. Thus the questions were properly settled and the local security stability was safeguarded.

2. Further deliberations in the connection of the common laws and the Western China practice of criminal justice

(1) Analyze ethnic psychology, integrate ethnic cultures and unify the judicial spirit. There are apt to be different ways of thinking, religious beliefs and living and production customs and habits as each ethnic group has a living environment and production process of its own. This is especially true in Western China, where the pace of civilization is slower than in the more developed areas due to poor traffic and information conditions, plus the cultural destitution. Under such prerequisites, we must not place the criminal justice there on the same par with the developed modern areas. Instead, we should adopt a practical approach and make a good study of the ethnic mentality. Permeate the spirit and concept in state laws and modern justice into the ethnic masses in a form acceptable to the ethnic groups. This is intended so they will genuinely comply with the laws instead of “falsely accepting” the laws under coercion or threats. For example in a Yi ethnic tribe in Yunnan Province, there was a group of people who knew the common law very well and who acted as executors of the law, revered by the ethnic group as Degu or Mosa. They were familiar with the common law and related cases and defended their identity with fairness and wisdom only. They did not rely on election or other channels. The masses were convinced and confident in them. I am of the view that in organizing the judicial contingent we should think of selecting some Degus of high cultural quality and political consciousness into the ranks. We should carry out modern judicial education and training among the Degus. Taking advantage of their spiritual authority, we may gradually incorporate state laws into the local justice

(2) Investigate and sum up the ethnic common laws, improve the fine and discard the bad to enrich the judicial system.

We must get fully acquainted with the Western China ethnic common laws. These laws have already been profoundly engraved into the hearts of the ethnic groups as an important part of traditional culture and a spirit inherited from generation to generation. They not only played a historical role of defending social order, but will also exert a far-reaching influence on the society of the various ethnic groups. The development of any ethnic group must be based on the development of its own traditional culture. As an important composition of traditional culture, common laws preserve quite a wealth of scientific and humanistic contents worth studying. For example in the common laws encouraging virtue and punishing evils, banning thefts and punishing robberies and protecting mountain forests and agricultural production, there were many advanced concepts and measures. The state should adopt a transitional policy of compliance and integration. When conditions are ripe, it should consciously absorb and approve those parts of the common laws, and integrate or graft them into relevant laws and degrees as part of the state statutes. As for the common laws that are backward or even conflict with state laws, we should carry out long-term effective legal system publicity and education, enhance the self-consciousness in studying and observing the laws so they will abandon the backward common laws. In the Qing Dynasty in China, the rulers cleverly formulated corresponding legal measures in combination with ethnic features in different ethnic areas. For example, in areas inhabited by Mongolians in compact, they promulgated four statutes with precedents. On the one hand these statutes approved the legal effect of the Mongolian common law; on the other hand they infiltrated the interior legal-system contents into the common law, thus promoting the evolution of the ethnic minority law cultures. From this history we may also see that we must refrain from transforming or even ruining the folklore through legislation in disregard of the customs and feelings of the ethnic minority groups. That would have been inhuman and counter-productive, too.

(3) Give full play to the role of judicial autonomy under the ethnic regional autonomous system and carry out criminal justice based on the sociological norms of social harms done by criminal acts In my view under the present condition in China the various autonomous localities of ethnic regions should base themselves on the degree of nurturing in the market economy and ethnic cultural quality as the parameters, and create an intermediate belt in compliance with the local ethnic culture. In this belt we should rely on the judicial power limits of the autonomous judicial organ. Proceeding from the concept that crimes are harmful to the established social relationships and are behaviors punishable by law, we should define the demarcation line between crimes and non-crimes, light and heavy crimes in ethnic areas, permitting regulation and control by relying on ethnic common laws. We should treat the state laws as a restraining and guiding force. For example the early marriage customs among certain ethnic groups have led to male citizens having sex with young girls below 14 years of age. Since it is a custom, the main body is undoubtedly of a mass character. The local society, including the direct objects of such a behavior and their relatives, do not think such a behavior as harmful to the female sex. As far as the main body of the perpetrator, he is not acting against the will of the society or the will of the girl and her relatives. Nor does he realize his behavior is harmful to the health of the girl. Thus it is out of the question to have any motive of calculated crime or any purpose to deliberately undermine the set social relations. As far as the local society is concerned, the masses also regard such behavior as a matter of course. Under such a prerequisite the local judicial organ should take such a context into full consideration. If we regard all such cases as criminal and investigate the criminal responsibility, this may lead to obstructing the evolution of the ethnic laws against our will. This is so because there will be an excessive scope of crackdowns since the behavior is extensive. There will also be incomprehension or even repulsive feelings towards the laws since the crackdowns are against the will of the ethnic masses.

Referential books

Gao Qicai: Chinese Theories on Common Laws

XieBangyu and Huang Jianwu: Behavior and Legal Control

Liu Guang’an: A Concise Thesis on Qing-Dynasty Ethnic

Legislation

Du Rongkun: On the Kazarhk Nomadic and Patriarchal Clan

Feudal System

Xiang Ling: Tong Ethnic Township Regulation and

Evolution

Yin Shaoting: Slash-and-burn Farming in Yunnan

--- A Survey of Ethnic Geography

Chen Guangguo: Tibetan Common Law and Socialist

Cultural and Ethical Development in Tibet

Region

Note: This is an article I wrote under the enlightenment of the local ethnic minority customs and habits when I perceived on an October 2002 trip with the China Police Report--- Travels to Western China Program Snapping Crew. As the time was short I hope my teachers would offer advice to me in case of any improper argumentation.