秦律「重刑主義」下的彈性法規探討

A Discussion of the Flexible Regulations of Ch'in's Cruel Laws

贏秦法律是「中華法系」的主要源頭，它影響中國及東亞鄰國垂兩千年之久。西漢儒家為建立自己的學說理論會將秦王朝末年的失政，當作有秦一代的法律制度，肆意加以攻擊，誇張秦律的殘暴性和野蠻性，其評論是不完全符合歷史事實的。由於原始史料的散俠，再加上歷代學者深受儒學影響，兩千年來一般人對秦律的觀感，普通停留在西漢儒家的立場，或借古諷今抒發政見，或以偏蓋全隨口貶抑，共相指斥秦律為「暴秦」、「酷法」，其實並非公允之論。湖北雲夢睡虎地秦簡出土後，眾多中國大陸學者仍然深受馬克斯主義固定史觀的約束，繼續指證秦律的嚴酷性、暴虐性，絕少有從正面觀點加以揄揚者。本文依據睡虎地出土秦律史料，列舉秦律「重刑主義」下的彈性法規20條，闡釋法規的「彈性」內容及歷史背景，進而析論秦律的「公平性」、「合理性」特質，說明秦律在當代能夠徹底實施的理由，從而揭示秦律未為今人正確認識的真貌。

Ch'in Laws, the main source of Chinese law system, has had great influences upon China and East Asia for nearly two thousand years. In order to privilege the priority of their theories, scholars of Confucianism in Han dynasty severely attacked the contents of Ch'in laws. They exaggerated the features of ferocity and barbarity of those laws, and ascribed the ruin of Ch'in to the cruelty of those laws. However, their criticism does not virtually represent historical reality. Most of the original records of Ch'in laws had vanished form sight. Moreover, Chinese people generally live under the impact of Confucianism. Owning to the above-mentioned facts, people's comments on Ch'in laws are usually based on the viewpoints of those Confucian scholars. Thus their viewpoints are biased. Although the discovery of a number of Ch'in laws written on bamboo strips in Shui-hu ti area might have changed these unfair comments, most of the Chinese scholars, limited by Marxism, continued to criticize the cruelty of Ch'in laws. This paper lists 20 flexible regulations of Ch'in laws based on the texts discovered in the Shui-hu ti area. We elucidate the contents and historical background of those flexible regulations in order to divulge the qualities of 'justice' and 'reasonableness,' which are scarcely known to most people, of Ch'in laws.