從律令制的演變看唐宋間的變革

The Tang-Song Transformation as Seen through the Change over the "Law and Decree System"

高明士(Ming-Shih Kao)

《臺大歷史學報》 32期 (2003/12) Pp. 1-31

https://doi.org/10.6253/ntuhistory.2003.32.01

摘要

戰國時代至秦漢，是禮刑二分走向禮刑合一的時期，同時由於成文法典的發達，而使禮刑思想融入律令，此時之令為律的追加法。西晉以後，由於士族門閥勢盛，施政以及訂定法制，走向儒家化，於是令成為規定制度，不帶罰則，乃與律兩分；律、令、禮之關係，成為納禮入律、入令，違禮、違令由律處罰，直至隋唐，法典體系大備，甚至形成所謂中華法系（或謂中國法文化圈）。但宋以後，由於皇權走向獨裁化，門閥士族社會解體，敕、律成為行事依據，而令典逐漸褪色，至明初以後，遂無令典。晉、唐至宋後的歷史發展，實亦可由律令法制變遷來理解所謂「唐宋變革」。

關鍵字

律令 ； 禮刑 ； 將然 ； 已然 ； 儒家化 ； 中華法系 ； 罪刑法定主義

並列摘要

From the Warring States to the Qin-Han Times, China had been undergoing a process of combining ”Law and Decrees” with 'Rites and Penal Systems'. Originally they were separate, but with the development of written legal code, the thoughts on ”Rites and Penal Systems” were gradually integrated into 'Law and Decrees'. At this time, decrees were appended into laws. After the Western Jin Dynasty, as the strength of Scholar-Official clan increased, policy and law making had been Confucianized and Decrees had gradually been formalized, The formal decrees were only regulations, carrying no specific punishment and thus were differentiated from laws and statues. The relationships among the Rites, Decree and Law were as follows: Rites were absorbed into Laws and Decrees. Violation of Rites and Decrees were punishable by the Laws. This practice lasted into Sui-Tang Times. The Law Code System had become more comprehensive and gradually matured into the 'Sino Law Systems'(or it may also be called as East Asian Law Cultural Sphere). But since the Song Dynasty, with the development of Chinese despotism, the Scholar-Official Clan society disintegrated. Emperor's ordinance and law had become the code of behavior and the decrees gradually lost its appeal. From the early Ming Dynasty, there were no formal Decree Codes. The historical development from the Jin-Tang Dynasties to the Song and afterwards, could be understood from the perspective of the change of law and decree system. This is another aspect of the so-called ”The Transformation from the Tang to Song Dynasty”.

並列關鍵字

law and decrees ； rites and penal system ； would-be case ； had-been case ； Confucianization ； Sino-law-system ； the principle of punishment according to law

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