Human life and human rights: death penalty data and sentencing procedure during the Song dynasty

• Author: Zhang Shoudong
• Position: ZHANG Shoudong (???), Master in Chinese Legal History, School of Law, China University of Political Science and Law, Beijing, China; Associate Professor, School of Law and the China?EU School of Law (CESL), China University of Political Science and Law, Beijing, China. Contact: shoudongzhang1965@outlook.com
• Pages: 390-408

FRONTIERS OF LAW IN CHINA

VOL. 15 DECEMBER 2020 NO. 4

DOI 10.3868/s050-009-020-0023-9

FOCUS

NATURAL LAW IN A CHANGING WORLD

HUMAN LIFE AND HUMAN RIGHTS: DEATH PENALTY DATA AND SENTENCING

PROCEDURE DURING THE SONG DYNASTY

ZHANG Shoudong*

Abstract The adjudication and amnesty system in the Song Dynasty has been

thoroughly researched by academia, but the annual death penalty numbers have not been

credibly determined due to insufficient and disorganized historical records. The period’s

policy that no innocent person would be executed was based on the double-digit record

of capital punishments for Zhenguan during the Tang Dynasty, and the execution

number was adjusted accordingly. As a special procedure, Zoucai (a request for

judgment) was used to reduce the death penalty numbers. The value of human life,

concern about excessive execution, and trimming of the capital punishment regime

resulted in conversations between the emperors and their officials about the death

penalty, which allowed the law that executed capital punishments during the Song

Dynasty to strike a proper balance between justice, efficiency, and mercy, while

avoiding rigidity and abuse.

Keywords Song Dynasty, death penalty, human life, human rights, Zoucai

INTRODUCTION .................................................................................................................... 391

I. THE PUZZLE OF THE SONG DYNASTY’S DEATH PENALTY NUMBERS ...................... 391

II. DEATH PENALTY DATA AND TRIMMING THE ADJUDICATION SYSTEM DURING THE

SONG DYNASTY ..................................................................................................... 399

III. THE VALUE OF HUMAN LIFE DURING THE SONG DYNASTY AND MODERN HUMAN

RIGHTS ................................................................................................................. 403

IV. A REVELATION OF DEATH PENALTY DATA BASED ON THE NEED FOR THE

* ZHANG Shoudong (张守东), Master in Chinese Legal History, School of Law, China University of

Political Science and Law, Beijing, China; Associate Professor, School of Law and the China–EU School of

Law (CESL), China University of Political Science and Law, Beijing, China. Contact:

shoudongzhang1965@outlook.com

I would like to extend my sincere gratitude to Professor Cui Linlin and the other colleagues in Legal

History Studies for their efforts in holding the 2014 “Seminar on Tradition and Change of China’s Judicial

System,” which galvanized me into writing down this paper. I am also deeply indebted to Professor Jiang

Xiaomin for her comments and corrections during the seminar.

2020] DEATH PENALTY DATA AND SENTENCING PROCEDURE DURING THE SONG DYNASTY 391

JUDICIAL PROTECTION OF HUMAN RIGHTS .......................................................... 407

CONCLUSION........................................................................................................................ 407

INTRODUCTION

Establishing and trimming capital punishment during the Song Dynasty was mainly

based on the value of human life, and its primary aim was to reduce the number of

sentences and executions resulting from the death penalty. This paper attempts to study

the interactive relations between controlling the number of death penalty sentences during

the capital punishment regime based on the assumption that the value of human life

approximates the idea of modern human rights. The aim is to find out how the value of

human life exerts an authoritative influence on the Song Dynasty’s capital punishment

regime by controlling the death penalty numbers. The Song Dynasty’s adjudication and

amnesty system has been thoroughly researched by academia, but the annual death

penalty numbers have not yet been credibly determined due to insufficient and

disorganized historical records. Therefore, this paper will thoroughly evaluate the

historical records of death penalty numbers and focus on the interactions between the

value of human life, capital punishment data, and the adjudication system without solely

discussing the adjudication or amnesty system.

I. THE PUZZLE OF THE SONG DYNASTY’S DEATH PENALTY NUMBERS

During the Song Dynasty, both the emperors and their officials approached the capital

punishment regime’s establishment and trimming from the perspective of death penalty

reduction. Strictly controlling the death penalty numbers was the annual goal, and the Tang

Dynasty’s double-digit capital punishment sentences served as a compelling demonstration.

YAN Su, the Assistant Minister of the Ministry of Justice during the Song Dynasty,

presented a memorial, which stated, “the annual number of death penalty sentences in 630

A.D. (in Zhenguan during the Tang Dynasty) was 29 and the number in 737 A.D. (in Kaiyuan

during the Tang Dynasty) was 58. However, with nearly the same population as the Tang

Dynasty, the number of criminals sentenced to death in 1025 (in Tiansheng during the Song

Dynasty) reached the high level of 2,436, which is higher than that of the Tang era by more

than a hundredfold. I ad hoc venture to come to the court, Your Majesty, due to the drawbacks

revealed during … sentencing as well as the execution after the annulment of the Zouyan

regulations and the peril in the lack of leniency and benevolence.”1

YAN Su argued that it was imperative to find out the reason for Song Dynasty’s

higher death penalty numbers than Tang’s despite whether capital sentencing was in

accordance with the law or not. An official in the Ministry of Justice, LI Yan, also

1 TUO Tuo, 宋史 (The History of Song Dynasty), Zhonghua Book Company (Beijing), at 3324 (2000).