论神判与巫术的关系及价值——人类社会早期审判裁决证据之运用

On the relationship and value of ordeal and witchcraft – the use of evidence in adjudication of early human society

审判是现代司法活动的基本形式,一个公正合理的判决几乎完全取决于证据的充分合理的运用。然而在人类社会早期,司法活动的过程却充满着神意与巫术的色彩。当事人有罪与否的确认,不是取决于证据而是取决于神意,或者通过巫术活动中的神意判断。这种古老神秘的审判活动是人类社会司法活动的早期雏形,是人类寻求公正解决社会矛盾和纠纷的最初尝试—也是人类社会法律发展进程中不可超越的开始。本文研究的目的就是通过对神判与巫术的区别与联系的探究,揭示二者对现代司法的某些启示。

Adjudication is the basic form of the modern judicial activities. A fair and reasonable judgment depends almost entirely on the full and reasonable use of evidence. However, in the early days of human society, the process of judicial activities was full of God’s will and witchcraft. Whether the defendant was guilty or not depended not on evidence but the God or the trial of ordeal in the practice of witchcraft. This ancient and mysterious adjudication activity, acting as the prototype of judicial activities in human society, is the initial attempt of human beings to seek a just settlement of social contradictions and disputes. And it is also an insurmountable starting point in the legal evolution in human society. The purpose of this paper is to provide some of implications to the modern justice activity through exploring the difference and connection between ordeal and witchcraft.