《韓非子〉「以刑去刑」說疑義論析

A Critical Examination of 'Ending Punishments through Punishments' in Hanfeizi

《韓非子》一書提出「以刑去刑」的說法，標示法家以刑治國的基本理念與最終目的。此說雖以重刑主義為論述要點，強調刑罰殺戮本質與輕罪重罰的威嚇效果可以有效遏止人民的犯罪行為，部分用刑理念與終欲達成的「去刑」願景，卻未完全獨立、區隔於其他先秦思想體系外，此間異趨同歸的學術現象頗值玩味。韓非初師荀子，後改儒為法，服膺商鞅之學，尤其「以刑去刑」說幾近直接襲錄商鞅之說於《韓非子》篇章。只是商、韓二人所處時空條件無法同日而語，對此說詮解及具體執行方式，亦據設論立場與政治操作互有輕重詳略，難免滋衍諸多疑義；再者，商鞅變法肇建有秦一國數世的國富兵強，韓非未有任何主持、參與變法的經驗，卻師其故法，僅憑紙上談兵，是否真能有效轉變當代世亂國危情勢，躋升去刑、至治的理想境界？當我們企圖評定《韓非子》「以刑去刑」說的歷史意義、學術價值與實際效用時，這些都是必須直接面對、處理的課題。本文嘗試從先秦經史資料與諸子學說著手，先釐析《韓非子》一書「以刑去刑」說的濫觴與成立，繼之闡述此學說潛存於理論層面的若干缺漏與疑義，探究韓非模糊認同的刑罰制度，具體落實於政治操作後必然遭遇、處理的難題；從而論定《韓非子》「以刑去刑」說苦心擘畫的「去刑」願景，是否真有實現的可能。

One of the main ideas put forth in Hanfeizi is that of 'ending punishments through punishments,' expressing Hanfei's basic and overarching belief that a country can be ruled through law and punishments. Although the idea advocates severe punishments for crime, it emphasizes that severe punishments, both monetary and capital, are to be used to stop crime, especially those of minor offenses. This idea, however, is not new. Hanfei studied under Xunzi originally, but later turned from Confucianism in favor of Legalist thought, especially that of Shang Yang's. In fact, Hanfei's advocation of 'ending punishments through punishments' was borrowed from him. Yet, as they lived during different times, their ideas of how to carry out this practice were different. This fact casts some doubt on Hanfei's reasons for using this. Furthermore, since Heifei lacked the experience in political reforms that Shang Yang had, it makes one wonder if his ideas were based on actual experience and knowledge, or were more akin to theoretical ideals. This paper will attempt to delineate the beginnings and development of this idea, as is shown in ancient works. Its efficacy and shortcomings as a theoretical ideal will also be addressed in terms of practicability and results of application.