Lecture Three: On How the First Judge, Gao Yao, in Ancient China Tried Cases
Lawmaking and Laying Death Penalty on Three Major Types of Crime as "Hun", "Mo" and "Zei" On JudgeGao Yao (Gao Yao Zuo Shi)
Gao Yao is the earliest Judge in ancient China, and he was the first Judge in the era of legendary Emperor Yu Shun (Note on the Yu Shun Period (Yu Shun Shi Qi): about 2277 BC - about 2178 BC). Emperor Shun ruled in a historical period when primitive clan commune faced its destination and gradually transited to the state. As a wise leader in such period, Shun was aware of the emerging waves of social riots and unrest, including invasions by ethnic groups, thieves, civil strife and external chaos. In order to resolve these pressing problems in society, he appointed Gao Yao as Shi, the title of Judge in ancient China. At the time of worries, Emperor Shun sighed: "Invasion outside, thieves inside". Then, he summoned Gao Yao and told him the severe situation where the nation was intruded by ethnic groups outside and troubled by thieves inside, facing great social turmoil and acute problems. So, he asked Gao Yao to be the Judge and resolve all those problems. After Gao Yao took office, he severely cracked down three types of crime as "Hun", "Mo" and "Zei". It is said that "Hun refers to committing a crime while claiming others' credit, Mo refers to corruption, and Zei refers to indiscriminate killing." In other words, "Hun" is the crime of fraud, "Mo" is the crime of corruption, "Zei" is indiscriminate homicide, the crime of murder. During his term of office as Judge, Gao Yao sentenced all criminals who committed the above crimes to death, thus severely cracking down crimes. On the other hand, he also deliberated on the saying that "Heaven pities the living"(Hao Sheng Zhi De), so he adopted several new judicial principles by placing "grace"(De) at the center. One of them is "Punish a guilty man without implicating his offspring"(Fa Fu Ji Si), and what does it mean? In fact, it refers to that the criminal law shall punish and only punish the perpetrator without involving his descendants. In ancient times, the penalty generally "claimed a whole clan as criminals"(Zui Ren Yi Zu), that is to say, to punish a perpetrator is to punish his whole family. Nevertheless, Gao Yao adopted the principle of grace to guide the criminal law. In addition, the innocents, or suspects who cannot be convicted with a crime shall be released and shall not be punished, which was so called as "Losing the principle of law is better than wrongfully killing an innocent"(Yu Qi Sha Bu Gu, Ning Sha Bu Jing). Hence, in dealing with ambiguous cases, erring on the side of the law is preferable to killing the innocent. In the Western Zhou Dynasty (c.11th century–782 BC), leniency in meting out punishment or amnesty method was implied to doubtful and difficult cases so as to ensure the application of the law with caution and rather adopting unusual method to prevent the wrongly killing the innocent. In conclusion, Gao Yao's policy was on the one hand, on the other hand, punishing only the perpetrator himself for his breaching, and releasing as well as laying no punishment on those whose conviction was in any doubt. The result of such a judicial hearing case is that the people were very pleased since they felt "justice", the fairness and just, therefore they were very obedient and willing to accept Gao Yao's judicial decision. And there was a saying to describe the situation as "the people subject to their sentences"(Min Ge De Qi Fu). Due to his outstanding achievements when assuming the post of Judge, Emperor Yu, when Emperor Shun abdicated his throne to him, still asked Gao Yao to be Judge.
Gao Yao is not only a judge, but also a legislator. It is written in ancient document that Gao Yao made the law. The original saying was "Gao Yao made the law, Confucius delivered the classics"(Kong Zi Chui Jing Dian, Gao Yao Zao Fa Lv) (Note: the intention of both Gao Yao's lawmaking and Confucius's passing the classics to later generations, is to educate the people to abide by the law and stay away from the evil while stay close to the good). Gao Yao's lawmaking indicates that Chinese ancient statutes were the accumulation of judicial experiences. As the Judge, Gao Yao studied and analyzed individual cases after trying many cases, and promoted the judicial decisions to the status of law if he reckoned one was worthy of reserving for later cases, then in this way, he made the law.
Gao Yao's lawmaking is the refinement and improvement of judicial experience which intended to protect the people and "prohibited evil deeds"(Jin Ren Wei Fei) which was to prevent the people from committing crimes, demonstrating the legislative principle of value and care for the people. At present, the law made by Gao Yao has been lost, yet we have access to the ancient documents which recorded, "Gao Yao sentenced death penalty on three major types of crime as 'Hun', 'Mo' and 'Zei'"(HunMoZei Sha, Gao Yao Zhi Xing Ye) (Note: Gao Yao intended to punish the three crimes including fraud, corruption and murder to ban on crimes so as to prevent potential crimes). In ancient China, penalty was also called law, hence law was penalty. In this way, the record "Gao Yao sentenced death penalty on three major types of crime as 'Hun', 'Mo' and 'Zei'" may be interpreted as "Gao Yao made law on three major types of crime as 'Hun', 'Mo' and 'Zei'". Probably, Gao Yao only made one penalty on fraud, corruption and murder. However, in primitive era when the law was very simple, it s possible that only three crimes called then "Hun", "Mo" and "Zei" existed and correspondingly, three penalties were made by Gao Yao to resolve such crimes.
Emperor Yu once had the intention to abdicate his throne to Gao Yao. Unfortunately, Gao Yao died of illness earlier, Emperor Yu then passed his throne to his son, Qi. When he had that intention, Emperor Yu once had a dialogue with Gao Yao which was of political insight. When they talked about how to govern the nation, Gao Yao put forward two measures, one was called "Zhi Ren", the other was called "An Min". The former refers to appointing competent officers, while the latter refers to making the people live in peace through making favors to them. These were some significant measures raised by Gao Yao to rule the nation and were accepted by Emperor Yu because he really appreciated these strategies in that Zhi Ren would facilitate talented officials while An Min would enable the people to lead a content life. In discussion, Gao Yao also put forward that in order to achieve the idea of Zhi Ren, it is essential to choose virtuous and competent people to serve as officials so that the country can be well governed. During this conversation with Emperor Yu, instead of talking about his work, his case trial, judicial experience and etc., Gao Yao talked about implying virtue to political affairs and nation administration. He himself noticed the problem of virtue in the judicial work, and the purpose of his lawmaking was not to punish the people but to prevent the people from committing crimes or evil deeds. Viewing from this perspective, Gao Yao was indeed a true politician.
It can be said that Gao Yao is not only the earliest judge in China, but also the earliest legislator in China as well as the first politician to advocate for influencing the people by virtue and assisting the politics with virtue. The thoughts, such as "upholding the virtue and punishing with great caution"(Ming De Shen Fa), "morality given priority over penalty"(De Zhu Xing Fu) and etc., praised and adopted by later generations were derived firstly from the discourse concerned with "virtue" by Gao Yao.