西晋泰始頒律的歷史意義

The Historical Significance of the T'ai-shih lü of the Western Chin

潘武肅(P'an Wu-su)

《中國文化研究所學報》 22卷 (1991/01) Pp. 1-19

https://doi.org/10.29708/JCS.CUHK.199101_22.0001

並列摘要

It is generally agreed that the enactment of the T'ang Code of 653 preserved in the Tang-lü shu-yi 唐律疏義represents an important chapter in the Confucianization of Chinese traditional law. Nevertheless, the process of its development is seldom discussed. The present paper is an endeavour to fill this gap. Before the T'ang Code of 653, one particularly important development was the Chin Code of 267. It was this Code that incorporated the innovative idea of separating the Code (lü律) from the Ordinance (ling 令), thereby establishing the way for the final triumph of the Legalists and the Confucianization of Chinese traditional law by effectively elevating the acceptance of the Code by the Confucianists. This was achieved by setting up a demarcation along the line that ＂transgression against the Ordinance (ling) constitutes a crime and will be punished in accordance with the Code (lü)＂. Or, as Tu Yü 杜預 (222-284), author of the famous Annotated Anthology of the Spring and Autumn Annals and Its Commentaries, who also participated in the codification of the Chin code of 267, puts it: ＂The Code (lü) provides appropriate punishment for crimes; the Ordinance (ling) furnishes a depository for social mores and administrative rules.＂ To govern, in the Confucian view, was to promote good behaviour among people by setting a good example. Further, punishment without an attempt first to educate amounted to tyranny. By separating the Code from the Ordinance, the Chin Code of 267 seemed to imply that no punishment would be meted out without a prior admonition as laid down in the Ordinance. Confirmation of this is of course impossible, since this Code has long been lost. However, it can be affirmed by taking into consideration the fact that the T'ang Code, while primarily penal in nature, as revealed in Niida Noboru's Toryo shui (Remnants of Tang Ordinances; 1933), made no mention of penal sanctions at all. From the historical perspective, it can therefore be said that the Chin Code of 267 ushered in the Second Confucian-Legalist Alliance which effectively elevated the acceptance of the Code by the Confucians. Henceforth the triumph of the Legalists and the Confucianization of Chinese traditional law was no longer in doubt. In contrast, there was fierce struggle in the preceeding stage in the development of Chinese traditional law, when at times the Confucians seemed to be fighting a losing battle. It all started shortly after Emperor Wu of Han (reigned 140-87 B.C.) ascended the throne and endeavoured to establish Confucianisms as the orthodox state idealogy while, almost simultaneously, appointing bureaucrats, who were Confucian by training but Legalistic in inclination, to carry out his policy of territorial expansion and government monopolies of salt, iron, liquor, etc. Thus, while Confucian Classics were taught in the Imperial Academy by erudites appointed by the state, and a highly eclectic kind of Confucianism was being developed by Tung Chung-shu (c. 179-104 B.C.), the power of the state was in the firm grip of the bureaucrats such as Kung-sun Hung, Chang T'ang, and Sang Hung-yang. In fact, they were responsible for the application of ch'un-ch'iu chüeh-yü, that is, the using of the Spring and Autumn Annals for legal judgments (discussed in detail by this author in another paper) Tension between the bureaucrats and the Confucian literati ensued. Once again, the philosophical difference of Confucianism and Legalism came to the fore, as attested by the Yen-t'ieh lun (Discourses on Salt and Iron), which was a record of the famous debate between the two groups held in 81 B.C. It showed that the deep-seated distrust, and hence the self-righteousness, on the part of the Confucian literati was such that they refused to come to any compromise. The Confucian literati continued to insist on the supremacy of morality; they taunted their opponents, saying that they had better bear in mind the historical lesson of the collapse of the Ch'in Empire. Indeed, it was the bureaucrats who, in this debate, tried to find grounds for compromise and on that basis laid a solid foundation for the final triumph of the Legalists and the Confucianization of Chinese traditional law.