Thoroughly understanding the provisions of the Tang Dynasty Criminal Code "Tang lu Shu yi", where punishments are imposed, for example, for complex cases of encroachment on property, from time to time we have to face the fact that some norms seem strange and illogical to us. However, it is clear that the Tang legislators must have had their own logic. Moreover, everything suggests that they scrupulously carried it out with such diligence, such thoroughness, to which European culture has rarely risen. It's just that we don't see this logic clearly, or at least don't understand it. Perhaps it is based on some other axioms.

The evidence of such interpretations, as I myself understand, is not very great. But an attempt to explain the dry and stingy prescriptions of law, to discern behind them what considerations, motives, psychological attitudes they were once conditioned by, what picture of the world is hidden behind the amounts of sticks or years of hard labor that speak little to both the mind and the heart, is perhaps the most interesting and even exciting thing that promises, in my opinion, a study of the legal text.

Key words: traditional law, criminal, victim, social relations, victimization of behavior.

When studying the law of medieval China, sinologists discover ideas that seem strange when compared with European legal norms. Here are some of these oddities. The seminal article on theft reads:

Theft of [another] person's property is a surreptitious or covert taking. [Attempted] theft, in which no property was obtained, is punished with 50 blows with light sticks. If property worth 1 chi was obtained-60 blows with heavy sticks. For [each subsequent] 1 pi, the penalty increases by 1 degree, i.e. for 1 pi 1 chi - 70 blows with heavy sticks, and [further] the penalty increases again and again. When the cost of appropriation reaches the full 5 pi, the chi is no longer taken into account, and the penalty becomes [equal to] 1 year of hard labor. For every [subsequent] 5 pi, the penalty increases by 1 degree. For 40 pi-a link to 3000 li. For 50 pi - a link with additional works. ...In cases where multiple embezzlement from one family or simultaneous embezzlement from many families has been committed, [the costs] are always added up and the penalty is determined based on half of the [total cost of embezzlement] [Tang lui..., 1939, p. 282] 1.

1 See also [Criminal..., 2005, p. 94]. The value or value of things appropriated as a result of property crimes was expressed in the Tang Code in units of silk fabric - either in pieces of pi silk or, if the appropriation was small, in pieces of chi, One piece of silk is defined in the Code as a unit of silk fabric with a length of 40 chi and a width of 1 chi 8 cuni ([Tang lui..., 1939, Article 418]. See also: [Criminal..., 2008, p. 60]). Given that the Tang chi and tsun were about 31.1 cm and 3.11 cm, respectively (Krol and Romanovsky, 1982, p. 227), it is not difficult to calculate that a piece of silk had a length of 1244 cm at

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That is, if a certain thief stole property worth from 20 to 25 pi from someone's house at one time, he should have been punished with 2.5 years of hard labor. The last sentence actually says this: the same thief could have stolen property of the same value in pieces, in small things-either from several houses at once , or from one house, having visited there several times during a rather short time, such that cases of each theft could be, saying in a modern language, they are combined into one production facility. For example, during one night he could make a profit in several nearby houses or, conversely, from night to night for a whole week to climb into the same house. In both such situations, such a thief turned out to be no less than half as guilty and had to be punished, as if he had stolen not 20 pi of things, but only 10 pi, and according to the law, he was no longer entitled to 2.5, but only 1.5 years of hard labor.

Why did the Tang legislators show such leniency in situations of recidivism, i.e., when it would seem that it was necessary to toughen the punishment of a repeated thief (or at least not to ease his fate)? Why would that be? Why is a multiple thief better than a single one? In the logic of our jurisprudence, it should have been the other way around.

Or here is another good, albeit somewhat confusing, and therefore difficult to understand example. It is associated with embezzlement committed by relatives from relatives. There is an article in the Code that deals with the situation when one of the younger relatives of a certain family and an outsider, with whom the younger relative was in collusion, jointly stole something from the property of this family.

Any younger relative who lives together with [his elders] and has committed theft from the property of his family with [an outsider], the penalty is defined as the use of property committed privately and arbitrarily with an increase of 2 degrees. To an outsider, the penalty is reduced by 1 degree relative to [the one due for] ordinary embezzlement [Tang lu..., 1939, Article 288] 2.

A certain leniency of the law towards the younger relative is more or less understandable - it is based on the idea of family solidarity, that the family property is in some sense the common property of the family, and on the responsibility of the elders for the younger ones [Kychanov, 1986, p. 150]. There is a separate article that the Code refers to in this case:

Whenever younger relatives living together [with their elders] privately and arbitrarily used property, the penalty for 10 pi is 10 blows with light sticks. For [every subsequent] 10 pi, the penalty increases by 1 degree. [The increase in] the penalty is limited to 100 blows with heavy sticks [Tang Lui..., 1939, article 162] 3.

The penalty for such arbitrariness, as with ordinary property crimes, depended on the value of the property used, but it was much easier than the penalty for theft. Suffice it to say that here the penalty could not exceed 100 blows with heavy sticks, although the maximum penalty for theft under Tang law was exile - the most severe non-murderous punishments, which were directly heavier only by strangling and beheading. In this case, the fact that the younger relative did not commit theft alone, but together with an outsider thief, was considered an aggravating circumstance, and the penalty was increased by 2 degrees - i.e., for example, for theft in the amount of 10 pi, it was necessary to punish not 10, but 30 blows with light sticks, and the restriction of the increase in punishment did not occur 100 blows with heavy sticks, and with 1.5 years of hard labor. Such a weighting is quite logical: I joined forces with an outsider against the family, stole the family property with him...

width of 55.98 cm. One piece of chi, presumably, was a piece of this fabric with a length of 1 chi and a standard width of 1 chi of 8 cunei.

2 See also: [Criminal..., 2005, pp. 108-109].

3 See also: [Criminal..., 2001, p. 133].

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But why did an outsider who participated in a joint theft of family property with a younger relative have the penalty reduced by 1 degree relative to the penalty for ordinary theft? In fact, it is relative to the penalty that would be imposed on the same thief for the same theft, if it was committed by him without the participation of a younger relative. What is the reason that in this case an outsider was considered somewhat less guilty than if he simply stole it himself?

Generally speaking, usually the punishment was reduced by 1 degree to an accomplice in comparison with the ringleader, i.e. the initiator or main performer of a crime - but in this case, there is no question of dividing into a ringleader and an accomplice, and just as there is no question of the severity of the punishment depending on who initiated the theft, who put forward the idea to steal something from the household of this family - an outsider or a younger relative.

Or here is another, at first glance quite ordinary and not capable of alerting the order establishing penalties for fraud in the field of property.

Anyone who has obtained property from an official or private [person] by deception or fraud, the penalty is determined in accordance with embezzlement [Tanlyuy..., 1939, Article 373] 4.

It would seem that it is quite logical to equate theft, i.e. the secret, covert taking of someone else's property, and its luring, fraudulent withdrawal, taking it seems to be obvious, but under a fictitious, secret pretext. But once you understand in more detail what punishments should have been imposed when referring "in accordance with theft", the logic becomes less clear. The fact is that this wording provided for an incomplete, limited application of the article indicated in the reference. The Code says so:

... [The crime committed] does not amount to the actual commission of [the crime mentioned in the instruction]. ... For [instructions] of this kind, the penalty is always limited to a reference to 3000 li. ... [Crimes] are never subject to [action] rules on demotion, deprivation of office or deprivation of the position held, as well as [compensation for] double the cost of assignment and do not fall under [the action of] norms on increasing the punishment of authorized or managing officials, as well as [norms] of exile with additional works [Tang Lu..., 1939, Article 53]5.

The penalty for theft might not reach the death penalty as it was, but it could easily reach the penalty of exile with forced labor, which was heavier than the usual 3,000 li banishment. This threat was removed here. In addition, if the thief was a person with an official rank, he could not face official punishments when Zhun dao Lun was sent away, which consisted, roughly speaking, in temporary dismissal from service and demotion in rank, and in ordinary thefts they were very much threatened by the official. The reference "in accordance with theft" also excluded the possibility of collecting compensation for the value of stolen goods from the thief and, as we can see, provided for a number of other exemptions in comparison with the penalties for actual theft of the same value.

How was the taking of property by fraud less reprehensible than the taking of the same property by theft? Even from these three examples, one gets the feeling that all these relieves are based on some kind of motivation of the same type, but it is very difficult to formulate which one.

Perhaps a well-known and frequently mentioned article about the situation of a nighttime home invasion will help you understand the legal logic of that time.

4 See also: [Criminal..., 2005, pp. 338-339].

5 See also: [Criminal..., 1999, pp. 274-276].

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Anyone who enters a person's house at night without reason is punished with 40 blows with light sticks. If the owner immediately killed [the newcomer], the penalty is not determined. If he knew that [it was not for the purpose of] causing material or physical damage and yet killed [the person who entered] or caused [him] bodily harm, he is punished as for murder or causing [this] bodily harm in a fight with a reduction of 2 degrees. ... It means that he knew that [the person who entered] was lost, made a mistake, or [entered to him] because he was drunk to the point of losing his mind, or because he was old, small, sick and suffering, or a woman, i.e., unable to cause material or physical damage - and yet killed [the person who entered] or caused [him] bodily harm [Tang lui..., 1939, p. 269]6.

In other words, if someone, before he had time to figure out what was going on in general, with fright or surprise, killed on the spot someone who wandered into his yard or into one of his residential or outbuildings, he was not liable at all. This is more or less clear: my home is my fortress. But even if the tenant had time to assess the situation and notice that a person who wandered into his house at night did not pose any danger at all, but nevertheless for some reason killed or maimed the newcomer, he was not responsible even for causing bodily harm in a normal fight. Even compared to punishments for causing bodily harm or injuries incompatible with life in a fight, the penalty was reduced by another 2 degrees. Of course, there was no question of the killer's complete innocence. But the penalty relief was quite significant. Putting the situation described in the Code into the language of more understandable specifics, we can imagine as an example such a situation: someone, hearing a noise in his courtyard, went out, saw a stranger, was convinced that it was a decrepit old man who accidentally got here and did not pose any danger, and then in cold blood broke a helpless person's arm. For this, he should have received a sentence 2 degrees lighter by the court than if he had broken the arm of an equal opponent in the same way in a fair, mutually dangerous fight on neutral territory.

Why?

Everything seems to be turned upside down. It would seem that to inflict bodily harm on a person who is helpless and does not resist is much more inhumane than to inflict the same damage in a skirmish, receiving blows yourself. There is no other explanation than to account for the inadequacy of the alien's own act. Yes, he had drifted into someone else's house without any malicious intent. Yes, he might even have been looking for help himself. But generally decent people don't wander into other people's houses at night. This is not the way to behave. Inappropriate behavior by the victim is an obvious mitigating circumstance for the perpetrator.

From this point of view, let's try to analyze the reduction of punishments for property crimes given as examples above.

So, the first case: when multiple embezzlements from one family or simultaneous embezzlement from many families were committed, the costs are always added up and the penalty is determined based on half of the total cost of embezzlement. That is, if someone managed to get into the habit of going to the same house and repeatedly make a profit there, or, on the contrary, during a certain indissoluble period, almost simultaneously (for example, overnight), go around several neighboring houses and take something out of each of them, to determine the punishment first of all the value of all stolen items had to be summed up. It could have been quite a tidy sum, for example, 30 pi. However, the penalty then had to be determined not in accordance with this amount, but only with half of it, that is, not with 30 pi, but only with 15. It turns out that a thief who stole 30 pi's worth of property at once should have been punished with a reference to 2000 li, but a thief who stole 30 pi's worth of property in one family at several times or

6 See also: [Criminal..., 2005, pp. 66-67].

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those who stole property from several families for the same 30 pi, taking small things from each of them, so to speak, received only two years of hard labor for these same 30 pi.

It is somewhat easier to explain the easing of punishment in the second case, that is, when the theft was more or less carried out simultaneously from several families. The severity of the damage caused here was divided into several farms, and it turned out that each of them suffered not such a significant loss. It turned out that, although the theft could be relatively large, the material damage to each individual robbed family was relatively small and could not significantly threaten its well-being; in any case, it threatened it to a much lesser extent than if the theft of the same size was carried out from the economy of one family. The law indirectly took this into account, and it turns out that even if the theft was imperceptible, secret, and safe for the life and health of the victims, the value of the stolen goods itself was still not the only factor with which the punishment of the thief should have been correlated. It also took into account how easily the theft could be experienced by the household of the robbed.

The situation of reducing the penalty (no less than half) in a situation where the theft was committed from the same household not at the same time, but as a result of a series of monotonously repeated small embezzlements, it seems that it cannot be explained by anything other than the fact that the law indirectly imposed a certain part of the blame for the material damage suffered on the victims themselves. In fact, if you have a thief in your house, who repeatedly successfully takes away your goods, and you do not even notice it and can not really ensure the safety of your family and the inviolability of your property, you can only blame yourself. If you're so stupid, it's not really the thief's fault, even if they've made a big profit. In the Tang terms of that time, your behavior could be directly defined as "wrong", "not corresponding" to how prudent, vigilant, and skilfully managing subjects should behave. In modern terms, it can be called "victimized".

This is far from the only case in the Tang laws when the object of a particular criminal act, if his previous behavior (or behavior accompanying the criminal act, or in general related to it in one way or another) could be considered not quite appropriate, received a hidden form of retribution for his own incompetence, negligence, inability stand up for himself to the extent that he was allowed by law and norms of behavior. Of course, he was not directly liable to punishment - after all, he had not tainted himself with any criminal act, but his inadequacy (expressed, for example, in the fact that some thief got into the habit of treating him as if he were his warehouse) entailed in one way or another the leniency introduced into the law to the criminal.

The second example: in case of joint theft of property from a family by a younger relative and an outsider, the punishment for this outsider was reduced by one degree relative to that due for ordinary theft. It would seem that theft and theft, and an outsider is an outsider. What difference does it make that he committed this theft together with a younger relative of the family whose property was eventually damaged? And again, as in view of equally inexplicable situational indulgences, one can conclude that there is only one mitigating circumstance to be found here: in an absolutely correct, respectable family, a younger relative of a stranger will not lead to a joint theft. The commission of such a crime cast a shadow of suspicion on the elders who had brought up their younger ones so badly. Technically, there was, of course, nothing to punish, say, the head of the family for. He did not commit any specific illegal or even immoral acts. But there was something wrong with the family. And so the outsider thief wasn't so much to blame - at least one degree less guilty than if he'd come and stolen it himself.

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The third example: for someone who stole property from someone by fraud or fraud, the penalty was determined only in accordance with theft, i.e. no heavier than a reference to 3000 li, without applying official punishments and with some other indulgences.

Russian law, which is extremely concerned with the idea of justice, i.e., the proportionality of retribution for a misdemeanor, tried to take into account the equality of opportunities of the subject and the object of the crime, more precisely, the equality of the victim's ability to resist the crime and the criminal's ability to commit this crime. This is most clearly seen when assigning punishments for inflicting bodily harm in mutual fights: if both fought on equal terms, just with their hands and feet, the variations in the punishment of the one who eventually beat the opponent were very light. But once one picked up even a stick, equality of opportunity was violated, and the armed brawler was already much more responsible. Inflicting the same injury simply with the hands and feet (basically the same for all men) or with the use of a foreign object (which was a factor in violating justice in a fight) was punished in the first and second cases very differently.

Something similar, apparently, was taken into account when committing property crimes. The inability to prevent a robbery, that is, the taking of property by force majeure, or the inability to prevent a single theft, which is sometimes impossible for the most vigilant person to notice, was obviously considered normal and could not be reproached with the robbed or robbed person.

But the fact that someone fell for the deception, did not see through the fraudster, did not notice the fake, it seems, testified to the manifestation of some kind of negligence, even if not criminal, but nevertheless reprehensible. The crook and the object of the scam were on an equal footing, both capable, both sighted, but nevertheless the object allowed himself to be cheated. And the fact that he was so trusting and naive that he did not recognize the trick or forgery and allowed himself to be robbed, did not adorn him in the eyes of the tang law. This negligence alone did not make the victim of the crime guilty, but it did make the perpetrator less guilty.

The Tang legislators were aware of this in categorical terms such as" a brick will not fall on a good person "or" it is impossible to deceive someone who is vigilant", or not - it is difficult to say; it seems that most likely they did not realize. But they seem to have experienced this kind of feeling, and it penetrated the laws they created more than once, transforming and changing from time to time, but remaining essentially unchanged: the "victimization" of the object of the crime removed a bit of guilt from the subject of this crime.

The concept of victimhood is relatively new to modern legal thought. But, in general, in recent years, victimhood is understood as the tendency of a subject to conduct that increases the chances of committing a crime against him, as a personality trait that consists in a predisposition to be a victim of circumstances or the influence of other people.

Chinese thought, in particular legal thought, apparently could not internally perceive an individual human being as an object isolated from the surrounding society. There were no separate human beings, and there could not be. A person is always included in some kind of unity, functions as a part in some kind of connections. Senior-junior, boss-subordinate, male-female, teacher-student... In each of these pairs, each of their elements had its own specific responsibilities and specific capabilities. These were dynamic unities, full of interdependence, and each act of one of the members of the couple corresponded to certain appropriate (and did not correspond to the same certain inappropriate) reactions, responses. The behavior of one was determined by the behavior of the other. There could not be an act of one of the members of unity that was considered and evaluated

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by itself, isolated from what it was caused by and what, in turn, it caused. To feel the unity of interconnected individuals as a process of interaction has become quite natural. It was simply impossible to feel the members of the couple differently, separately. It turns out that the act of committing a crime at some point created a "criminal-victim" unity, and none of the members of this pair could be considered and evaluated separately from the other. Tang law sought filigree-graded justice and therefore, in principle, could not consider the criminal in isolation from the victim.

We have to admit that the archaic (and from the point of view of democratic values - inhuman) idea, which is based on the denial of individual self-sufficiency, the humanistic self-standing of an individual, many centuries ago led Chinese jurists and legislators to more than modern ideas similar to the current European idea of victimization. Moreover, their words were consistent with their actions, and they took this idea into account in specific criminal laws in order to ease the fate of the criminal, to make criminal laws as merciful as possible, which has not yet happened in today's flourishing democracies.

list of literature

Krol Yu. L., Romanovsky B. V. Experience of systematization of traditional Chinese metrology // Countries and peoples of the East. Issue XXIII: Far East (History, Ethnography, Culture), Moscow, 1982.

Kychanov E. I. Osnovy srednevekovogo kitayskogo prava (VII - XIII centuries) [Fundamentals of medieval Chinese Law (VII-XIII centuries)]. Moscow, 1986.

Tang lui shu yi (Criminal regulations of Tang with explanations) / Congshu jicheng (Library-series), vol. 775-780. Shanghai, 1936-1939.

Criminal regulations of Tan with explanations (Tan lui shu yi) / Introduction, transl. from kit. and commentary by V. M. Rybakov. Juani 1-8. St. Petersburg, 1999.

Criminal regulations of Tan with explanations (Tan lui shu yi) / Introduction, transl. from kit. and commentary by V. M. Rybakov. Tszyuani 9-16. SPb., 2001.

Criminal regulations of Tan with explanations (Tan lui shu yi) / Introduction, transl. from kit. and commentary by V. M. Rybakov. Tszyuani 17-25. SPb., 2005.

Criminal regulations of Tan with explanations (Tan lui shu yi) / Introduction, transl. from kit. and commentary by V. M. Rybakov. Juani 26-30. St. Petersburg, 2008.

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