Homicide in Themiclesian law

Homicide in Themiclesian law (殺人, sryat-ning; lit. "killing of a person") was anciently held as crimen, that is, the act of killing another person was inherently criminal and exposes the person who does so to a range of justified retributions by the aggrieved family or the community, unless remedies first intervene. This is in contrast to other types of crimes that were conditional on some factor, only satisfying which would a crime exist. Owing to this special character of homicide, the arcane procedures governing reactions to it and punishment for the offender were distinct from those of other types of crimes.

Ancient practices

The fundamental law on homicide in ancient times does not survive as written law, and virtually all legal scholars agree the law was customary, rather than statutory. There were indeed addenda and amendments to the fundamental law that were made as statutes in later times, but the basic principles were unwritten. Thus, it should be kept in mind that the following discussion relies on inferrence from other laws that touch the homicide law, often permitting scholars to understand that an amendment points to some contrary situation prior to the amendment's passage.

The very first known statute regarding homicide was over the private taking of satisfaction and the prohibition of subsequent vengenace, dating to just before the start of the Classical Period. Interestingly, this law explicitly covered only some cases of satisfaction, indicating that the unwritten law included other cases. Before the end of Antiquity, there were six main statutes regarding homicide, later called the Six Homicide Statutes (殺人六灋).

Fundamental law

There seems to be two basic principles that were assumed in virtually ancient practices dating to Themiclesian Antiquity.

1. The homicide may be killed in retribution, but only by the victim's successor, guardian, or spouse. It is not lawful for other individuals to do so. The aggrieved person may appeal for assistance from the community, and reasonable assistance shall not be denied out of hand.
2. If the homicide has not been killed in retribution after a certain interval, they may be expelled from the community by its elders, subject to a public denunciation of the homicide.

In all cases, the homicide's next of kin shall pay all expenses relating to the pollution and infamy caused by the homicide. The pollution referred to the spiritual offence that transpired against the land and was anciently dealt with by ceremonies and offerings, paid for the offender's clan; this is often the best attested part of homicide processes. The infamy is a little more obscure in nature and was resolved by a minor ceremony (whose nature is lost) at each of the settlement's gates or symbolic entrance, if it had no walled gates.

It appears the fundamental law made no explicit provision for accidental homicides or cases where homicides certainly occurred (such as the battlefield) but were not (at least known to be) culpable. Opinions differ as to whether accidental homicides were met with the full force of the law just as intentional. On the one hand, the alleviation of the pollution and infamy (the spiritual element of the offence) were incumbent on the offender's family without regard for the intention of the offender, so it is conceivable that the offender was subject to vengeance regardless of intention as well. On the other hand, it may also have been the case that clearly unintentional cases of homicide were never subject to retribution. There is also little to preclude differing local customs on this matter. Thus, the fundamental law was hardly static but probably experienced a degree of evolution as to its remit and provisions, only such were not written down.

Personal Offences Code of 1781

The law on homicides was not altered since the Code of 470, subsequent revisions largely restricted to restatement of the 470 statute verbatim.

See also

• Themiclesia