元代各從本俗下的風俗議論與法律走向──以漢族婚姻法與婚俗為例

Law based on Local Customs: Law and Local Order under the Yuan Dynasty through the Example of Marriage Customs and Matrimonial Law

元代法律的特色，最常被提出的是「各依（從）本俗」原則，此原則之下，學界長期關注收繼婚等象徵異族文化之俗，卻對於何謂漢文化的本俗以及其發展，少有探究。本文主要梳理元代婚姻法的發展背景與過程，以及各從本俗之下儒家文化與地方風俗之間的競爭與調和，修正元法寬鬆化的印象。在制度背景上，元代地方官府裁決權受到限縮，並長期缺乏成文法典可依，導致民間細事糾紛大量湧入中央省（中書省）、院（樞密院）、台（御史台）與六部，等待裁決。中央期待透過婚書契約化；聘財標準化，減少婚姻爭訟量，這是元代婚姻法的發展特色，與此同時，地方上的官員，則透過觀風察俗的義務，議論何為漢人本俗，建議恢復唐律，並要求中央對單一婚俗進行道德禁止與管理，藉此洗去他們眼中的異俗，不僅主導了元代時期法律傳統的發展，也將理學注入法律之中。本文的初步看法是，蒙元的統治僅提供了相對彈性的空間去界定漢人的道德、風俗與法律，但漢人的法與俗卻不必然走向模糊化或寬鬆化。 Law under the Yuan dynasty is most commonly characterized as a system with legal provisions that were formulated based on local customs. Due to this view, much of the scholarship to date has focused on non-Han customs, such as levirate marriage. However, it is much less common to study what Han custom actually meant and how it developed. This study analyzes the historical background and development of Yuan marriage laws, and focuses on the competition and negotiation between Confucian norms and local customs under the said principle of formulating legal provisions based on local customs. Examining these issues help to correct the notion that Yuan law was lax and minimally restrictive. Institutionally the judicial power of Yuan local officials was quite limited, and for a long time they did not have legal codes to adhere to. Therefore they reported numerous trivial civil conflicts to government agencies for resolution, including the Central Secretariat (zhongshu sheng), Bureau of Military Affairs (shumi yuan), the Censorate (yushi tai), and the Six Ministries. The Yuan central government expected to make marriage certificates (hunshu) contractual. Under the marriage code that it issued, betrothal gifts were increasingly standardized so the legal disputes that arose from marriages were limited. Also, Han officials in local offices performed their duties in observing local customs, and put forward discussions of what the original customs of Han people actually meant. Based on these discussions they proposed to restore the Tang code. They also argued for government control over marriage customs, so that other customs can be annihilated. Such discussions among them dominated the Chinese legal tradition under the Yuan dynasty. It also introduced NeoConfucian ideas into law and rought about the competition between NeoConfucian ideas and local customs. In short, Mongol rule provided its Han subjects with a rather tolerant space for morals, customs, and law during the Yuan dynasty. Even though this was the case, Yuan law was neither lax nor minimally restrictive. On the contrary, due to the efforts of Han radical moralists to define “customs” for Mongol rulers, Yuan law was sometimes pretty severe and had been increasingly so during the dynasty.