Historical background
Slavery existed in the tribal alliance in the Yao and Shun dynasties. With the accumulation of private wealth, class differentiation was further accelerated, which made the primitive society gradually transition to class society. Gaotao punishment is closely related to this historical era.
At that time, floods were rampant. Tribal leaders, go their own way. Within the tribes, because of famine, the "common people are not close and the five qualities are not inferior", [3] the society is out of order and the people are ruined; among the tribes, wars are frequent and annexation intensifies. They not only kill prisoners in batches, but also kill slaves wantonly, bury them alive, and even engage in sacrifice, sacrifice and savage cannibalism. As a result, the "four evils" of Gan, huandou, Gonggong and Sanmiao cause chaos. Among them, Sanmiao abused the people with cruel means, opposed Yao and Shun with sinister tactics, prevented Dayu from controlling the flood and destroyed the unity of the tribes. In the process of assisting Dayu in flood control, gaotao realized that without a compulsory method, it was difficult to overcome all kinds of obstacles and achieve success. Therefore, he proposed to formulate a series of rules to restrict the behavior of tribal leaders and people. Marx: "criminals not only produce crimes, but also criminal law.". Therefore, after the flood subsided, gaotao was sentenced by Yao, and was "granted to Gao" - Lu'an.
Content of criminal law
According to the Shangshu Yaodian and gaotaomo, the contents of gaotao's punishment are as follows: "Xiang [4] is typical, with five punishments of excursion, whip as official punishment, pounce as teaching punishment, money as ransom punishment, four pardons of disaster, and the punishment of parents and thieves. Qin, Qin, only punishment. "
There have always been two interpretations of the meaning of "Xiang Xing": one is that the punishment is imposed on the portrait to make the criminals witness it; the other is that the criminals wear different clothes. This is because gaotao deeply hated the cruel methods of Sanmiao and so on, and thought that he must be lenient to the people. We should not only make the criminal know his past and repent, but also let him take this as a warning and dare not commit it. Therefore, although there are names of killing, whaling, killing, ear control and killing, they are not practical, but symbolic. This kind of punishment has the primitive simplicity of clan system, which is "based on the pursuit of justice from the lover, but not on the harm of others. It is simple in the past, and the punishment system of Tang, Yu and the three dynasties can be seen briefly.".
The "five punishments of banishment" is a kind of leniency for the corporal punishment that should be inflicted on the disabled body, that is, the sentence of banishment. According to historical records, "liugonggong, fanghuandou, chuansanmiao and Zhuo.". Liu, Fang, Qu and Shu are all different names of banishment.
"Whip as official punishment, pounce as teaching punishment". In ancient times, flogging was two different tools of punishment. Kong Ying of the Tang Dynasty said: "the official punishment and whip are all used, but the teaching punishment is only used." Pouncing on punishment is to blame the students who are not diligent in Taoism. It is said in Guoyu · Luyu that "Bo Xing uses whip to fight", which reflects gaotao's intention of making people "shameful" and correcting their mistakes.
"Money for ransom" means paying heavy metal (copper) instead of criminal law. Of course, the scope of its use is limited, otherwise Gonggong will not be exiled.
In the process of implementing these criminal laws, gaotao found that there were many shortcomings in only talking about leniency. If Sanmiao was pardoned and exiled, they didn't want to repent. Instead, they constantly incited the Miao people to revolt. Inspired by the combination of flood control and interception by Dayu, gaotao revised the criminal law many times to combine leniency and strictness. He tried to be lenient for occasional negligent crimes (he would be forgiven for all disasters), and he would be sentenced to death for those who were not guilty, such as Sanmiao and Zao. Of course, he should be cautious in the implementation of the penalty Ensure the orderly progress of the water control project, and make the Sanmiao tribe obedient.
"Zuozhuan" quoted: "Xia Shu said: faint, ink, thief, kill, gaotao punishment, please follow it." That is to say, robbery, corruption and homicide should be sentenced to death. It can be seen that gaotao's criminal law was still in circulation until the spring and Autumn period. In terms of historical records, gaotao was the first judge, and no one had ever made criminal law or judged a case according to the criminal law before that (only some slave owners and tribal leaders had ancient "divine judgment" and cruel means of doing harm to the people with strong arbitrariness); Davide, a famous contemporary French jurist, also said that Chinese law originated in the process of conquering the Miao people in ancient BC, Therefore, gaotao as the originator of Chinese justice is beyond doubt.
Other systems
Gao Tao, the forefather of justice, has made great contributions to the development of China's criminal law
（1） Reform the criminal trial system
In ancient times, the first judgment belonged to divine judgment. It is said that gaotao initially used unicorns to judge whether the suspect was guilty or not. In a certain historical stage, divine judgment was widely used. This kind of criminal trial system is called touch trial system in the history of comparative legal system.
Because touch trial often leads to unjust, false and wrong cases, and is easy to commit crimes and innocent, gaotao abolished this system absolutely, and "Fang Shi Xiang Xing" changed the criminal trial from divine judgment to human judgment, and laid the foundation for the scientific criminal trial system of conviction by evidence in later generations, which is a great progress in the development history of criminal law.
（2） Establishing the principle of crime and punishment
1. Justice in law enforcement. The guiding ideology of gaotao's law enforcement is "only clear and allow". Yiheji praised him for "only clear and clear" in his execution. He himself said that "five punishments and five uses" should be adopted. He clearly expressed the concept that punishment should be divided into five grades and crimes should be serious. He put forward the relationship between punishment and crime for the first time, and demanded that punishment be treated according to crime. "Baihutong · sage" says that "gaotao is the one who listens to the prison system"; Su Shi, a great literary giant, wrote in the treatise on punishment, reward, loyalty and kindness: in ancient times, Kong Ren committed a great crime, the generous Yao said "forgive" three, while the upright gaotao said "kill" three. Because of the justice and strictness of gaotao's law enforcement, his era is known as the flourishing age of "the people live in peace" and "there is no injustice in the world".
2. A lighter sentence. Gaotao proposed for the first time that "it's better to lose than to live up to death" and "it's better to forgive than to live up to death" (dayumo), that is to say, the conviction of suspected crimes can be lenient or postponed, and the negligent crimes, no matter how big, can be forgiven. He was always "only concerned with punishment" and was careful to use heavy punishment, especially death penalty. For this reason, he also specially stipulated "five punishments for exoneration" and "money for ransom", so that criminals can have the opportunity to avoid those cruel punishments and change their ways. Its purpose is to avoid killing good people by mistake, causing wrong cases and creating unjust imprisonment. Gaotao's idea of "rather lose than pass" is also a kind of thought of cautious punishment.
3. Different punishment for the same crime. "Four pardons for calamities, punishment for parents and thieves" and "no major forgiveness, no minor punishment" show that gaotao's sentencing is not based on the criminal's objective crime. Even if the objective crimes are the same, after considering the differences between occasional crime and recidivism, negligent crime and intentional crime, as well as whether to repent or not, the judgment is not the same.
4. Punishment of criminals should not involve their descendants. After he was killed, his son Yu was still the leader of the tribal alliance, and gaotao was still trying his best to help Dayu control the flood, and Yu succeeded Shun as the supreme leader because of his meritorious service. It can be seen that Yu was not implicated because of his father.
（3） Attach importance to education
Gaotao advocated that the five punishments should be in an auxiliary position, and those who have extreme behavior or committed crimes should first be justified, not listen to enlightenment, and then be brought to justice. The five religions are: father's righteousness, mother's kindness, brother's friends, brother's respect and son's filial piety. The purpose is to educate people to understand and abide by the most basic relationships, so that people can be friendly to each other, humble to each other, and know what to do and what not to do, so as to realize a harmonious society without criminal behavior and achieve the goal of long-term stability. Therefore, Shun highly praised gaotao: "Ru made soil, Ming in the five punishments, to bi five religions, in the hope of governance. The term of the sentence is five, and the Association for democracy and people's livelihood is in the middle of the sentence
At the 96th Congress of the inter Parliamentary Union, Su Ruhr, chairman of the IPU, said: "the rule of law is the key to civilization.". At the end of the primitive society, gaotao was a symbol of human civilization.
Relevant evaluation
The ancients all attributed the origin of ancient Chinese criminal law to gaotao, saying that gaotao was the founder of Chinese criminal law. The legend of "gaotao as punishment" reflects the ancients' understanding of the origin of Chinese criminal law, which can be said to be the first criminal legislation activity in Chinese history.
