漢唐正史〈刑法志〉的形成與變遷

拙稿旨在以漢唐間正史中的〈刑法（罰）志〉為對象，考察此一篇章創設、變化和確立的過程，進而分析其書寫的方式和呈現的法制思想。一、〈刑法志〉的淵源和創設的目的。《漢志》的名稱和內容固然有班固獨創之處，但也不宜忽略與《史記•律書》的淵源關係。《漢志》撰寫的目的，不僅在述古，更重要是論今。對於陳諸原野的「大刑」，即所謂兵事，班固的觀點：一是文德為本，威武為末；一為仁義綏民，不尚權詐。對於施諸朝市的「小刑」，班固以為漢興以來最大的弊病，一為文帝廢肉刑以來造成刑制輕重失衡，一為武帝以來法條煩多。正本清源之道，即是恢復肉刑，並簡約法條為三千。二、刑法志的演變。《魏志》應是魏收根據國史舊稿而成，究其成立原因，既是師法班固《漢志》，也因北魏刑罰律令屢有更改之故。魏收改易〈刑法志〉為〈刑罰志〉，純論狹義的刑罰，不談兵事。而且，論述焦點都圍繞著刑罰和獄訟而不是律令。三、刑法志的確立。《隋志》和《晉志》的成立固然有史學的因素和實質的需要，但與貞觀朝建立律令系譜有著更密切關係。《晉志》提出李悝《法經》以明唐代典章法度之「源」，《隋志》縷述唐前法制以釐清其「流」，從而標榜唐制淵源流長且集其大成。〈刑法志〉的地位和書寫形式在唐初確立下來，除了記述刑罰的種類和獄訟以外，更著重記載法典的制定、篇名、修纂經緯等，逐漸擺脫偏重於刑的論述，具有較濃厚法的色彩。〈刑法志〉的書寫，自《漢志》的「刑主法從」變為《魏志》的「詳刑略法」，再變為《晉志》《隋志》的「刑法並重」，名符其實的〈刑法志〉於焉確立，並為後世繼承。要而言之，漢唐間正史〈刑法志〉的發展，可謂《漢書》創其例，《魏書》變其體，《晉書》、《隋書》定其制。

關鍵字

漢書；魏書；晉書；隋書；刑法志

並列摘要

The purpose of this article is to examine the formation, evolution and establishment of the Monograph of Law [MoL] and analyze its writing style and legal thought based on the historiographies of Han & Tang dynasties. 1. MoL: The origin and purpose The MoL in Han Shu recorded the evolution of legal system from Ancient China to the Eastern Han Dynasty. Its title and content consisted some distinct thinking of the author-Ban Gu, however, one should also note its relationship with another article-The Law Book in Shih Chi. The purpose of this MoL in Han Shu was not only focus in recording the historical events, but also analyzing the present situation. Based on the classical concept, military was kind of penalty, therefore, MoL in Han Shu consisted the histoy of military. Followings are the viewpoint of Ban Gu towards military: Virtue and morality were the fundamentals, and military force was the end. Treat people with humanity, and discourage unethical behavior. On penalty system, there are 2 major loopholes in Han Dynasty as stated by Ban Gu: i. Too many rules and regulations since Emperor Wu ii. The quandary imbalance of legal system resulted from the abolition of corporal punishment since Emperor Wen The remedial actions were to simplify the clauses to 3000 as stated in Sheng Shu and the resumption of corporal punishment. 2. MoL: Its evolution The MoL in Wei Shu, composed by Wei Shou base on the ancient historical facts, was the only full circulation from the Southern & Northern of Wei & Jun dynasties. The birth of this article in Wei Shu was learnt from the Han Shu by Ban Gu, as well as to keep trace of the legal development and highlight its importance due to the frequent amendments in the Northern Wei dynasty. However, Wei Xi changed the name from The Monograph of Law to The Monograph of Penalty. The big difference between Wei Zhi and Han Zhi is the former's solely coverage in legal including several critical cases but not the military aspect. Also, The Monograph of Penalty focused on the history of penalty rather than the codification. 3. MoL-its establishment The MoLs in Jin Shu and Sui Shu was the result of following the footsteps of Masters Ban Gu & Wei Shou when composed them in the early stage of Tang Dynasty. In addition to the general information covering the origins and role at the beginning, it also documented the codification as well as the types and levels of penalty. It exerted tremendous influence in style and legal view points on the forthcoming MoLs, and established a formal status in the annals. Besides, there are special points worth noting in the MoL at the early Tang period: a. The relationship between criminal law and order in the universe-pointed out that humanity and rites are natural. b. Conditions of an ideal Legal System-Wide coverage, fair & simplicity. c. The emphasis of equality-Emperor & government officials must abide by the law. To conclude the development of MoL in the Han & Tang dynasties-The MoL in Han Shu set the scene, the MoL in Wei Shu evoluted its style, and the MoL of Jin Shu and Sui Shu fixed the content.