文獻解讀與秦漢律本體認識

The Interpretation of Literature and Cognition of the Noumenon of Laws in the Qin and Han Dynasties

「本體」一語見《晉書•刑法志》，指事物的本來面目。所謂「秦漢律本體」，即指秦漢律的本來面目。在既往的學術研究中，法經與法典、商鞅「改法為律」素為學界所關注乃至引起爭鳴，近來「事律」也成為學者討論的話題，而此三者皆涉及文獻解讀與秦漢律本體認識，與秦漢法律史研究的基本命題密切相關。關於李悝撰次諸國法且撰次成果為六篇的可能性，學界已漸趨認同，但所謂「法經」之名並非與生俱來。事實上即使是秦漢魏晉時期的法律編纂，目前也難以確定存在一個預設定名。所謂正律、旁章，源於人們對刑法法源地位的認識，其未必等同於在立法編纂或正式法源上自始即有正旁之分。通過比較秦漢律與魏律的編纂，可知在編纂者的經驗與知識儲備、掌握一定數量的法律文件及對刑事法規基本性質的認識上，二者具有共性，因此二者是「律」發展進程中的兩個階段，不宜以是否法典為斷。作為中國法律史上的一個「重要」事件，商鞅「改法為律」在文獻支持上尚存未安之處。據現有文獻，尚不能確定作為法源形式的「法」的存在。我們目前所看到的秦漢律由單篇律構成，在其外部並無一個如刑法、行政法般較為單純、明確的統攝形式。在出土文獻中，諸曹與諸律呈現出一定的對應關係，故「事律」或可解為職事之律，其規範涵蓋官吏職責本身及其所涉政事的所有範圍。出土秦漢法律的律篇，從性質上可劃分為刑律之篇與職事（或政事）之篇，這一性質區分或正是被表述為正律與旁章的因素。傳世文獻經歷了歷代的整理研究與傳承，無論是文本樣態還是知識體系都不可能在這一過程中一成不變，因此在運用傳世文獻所拔萃的知識體系時也當持有審慎之心。同理，出土文獻的複雜性也促使人們在利用這些文獻時，將性質辨析置於首位，以尋求「古本」與「今本」對接的演進途徑，使歷史上曾經存在的那個法律體系的樣態在兩種文獻中獲得通融。

The term “noumenon” in the phrase “noumenon of laws in the Qin and Han dynasties,” as appeared in the criminal annals of Jinshu, denotes the true nature of the laws in the Qin and Han dynasties. Previously, fa jing (the canon of laws) and other legal codes, as well as the event that Shang Yang changed the term fa to lü, have always caught the attention of the academia, and been argued about all the time. Shi lü, recently, has also become a topic of scholars’ discussion. All these in fact involve further interpretation of the literatures and finding the noumenon of the laws in the Qin and Han dynasties, essentially the basic proposition for the research on legal history of the Qin and Han dynasties. The academia has already gradually recognized the possibility that Li Kui had compiled the laws of various states into six legal texts. Nonetheless, the name of socalled fa jing was obviously not inherent. Actually, it is also difficult to determine if predetermined names for the codifications of laws during the Qin, Han and Wei Jin periods existed. The terms of zheng lü and pang zhang (other specifications) were derived based on people’s perception of the legal source for the criminal law, while the codification and the formal legal source did not actually categorize laws into zheng and pang laws. Comparing the codifications during the Qin and Han dynasties and that of the Wei dynasty, zheng lü and pang zhang share similarities. Based on the redactors’ experience and knowledge, their mastery of legal documents, as well as their understanding of the basic characteristics of criminal laws and regulations, the laws of the Qin and Han dynasties and that of the Wei dynasty are merely two stages in the process of the development of law, whereas should not be judged by they are codes or not. Although long being viewed as an “important” event in the Chinese legal history, there are not enough literatures to support that Shang Yang actually changed the term fa to lü. According to existing literatures, it is hard to conclude that there existed a term fa which was the source of law. According to currently available sources, the laws from the Qin and Han dynasties were constituted by separate legal texts, and there was no simple and clear overarching idea, such as criminal law or administrative law. A correlation is also apparent between the state bureaus and the laws in the literatures. Thus, shi lü has often been interpreted as the laws outlining duties and related affairs of the officials. Currently unearthed legal documents from the Qin and Han dynasties, by their contents, can be divided into those about criminal laws and those about ministerial affairs. This distinction in their nature perhaps is the exact reason why the terms zheng lü and pang zhang appeared. These traditional literatures have been studied, edited and inherited for many generations. Both the textual formats as well as the contents inside must have undergone changes. Therefore, modern scholars ought to be cautious when conducting research about these traditional literatures. Similarly, the complexity of the unearthed literatures also requires us to place priority on identifying the nature of these literatures, in order to understand the evolvement from the ancient versions of the texts to the modern ones.