秦國的「改法」與「為律」初探

A Preliminary Study on Institutional Reforms and Lawmaking in the Qin State

唐人所作《唐律疏議》及《唐六典》中，皆記戰國衛國人商鞅入秦時攜帶魏國李悝的《法經》前往，在取得秦孝公的信任後，進行「改法」與「為律」的變革。《唐律疏議》在「疏文」中將「改法為律」作一詞理解，意指商鞅將李悝《法經》的六「法」，改為以「律」為名，成為〈盜律〉、〈賊律〉、〈囚律〉、〈捕律〉、〈雜律〉、〈具律〉六律，此說影響甚鉅，後代學者皆依其說。然而，在商鞅之前「律」已作為法律名稱使用；商鞅之後，秦「法」依然存在，未見「律」取代「法」的情況。況且，商鞅以「變法」為名，若只將舊「法」改稱為「律」，僅在法律名稱上作改變，勢必不能成就孝公欲變法之實。
本文以為「改法」與「為律」是商鞅在秦國推動法制變革的兩種手段，利用這兩種方法，一方面改變舊制，二方面推行新政。「改法」意指對既有之秦法（包含制度與禮俗）進行修訂、補充或改變，「為律」指以「律」之名制定律文，推動各項改法事務。「改法」與「為律」應指兩件事，但二事不若涇渭之分明，可能在一件事務上同時有「改法」及「為律」之舉動。二者在秦國的歷史中，持續推動，爰至戰國晚期，已多能見到商鞅變法的各項律文。惟商鞅變法亦應不只以「為律」來「改法」，唐代文獻特舉出二者，在於二者有其代表性意義。總之，唐代文獻中的「改法」與「為律」，有其實質上的法律作為，並非只是名稱上的替換而已。關鍵辭：商鞅、改法、為律、秦漢、法制史*本

In the TanglüShuyi (Collected Commentaries on the Tang Code) and the Tang Liudian (The Six Codes of the Tang Dynasty), both compiled during the Tang dynasty, it is recorded that Shang Yang, a native of the Warring Statesperiod state of Wei, brought with him the Canon of Laws (Fajing) authored by Li Kui of Wei when he entered Qin. After gaining the trust of Duke Xiao of Qin, he initiated reforms by“amending existing laws”and“establishing new statutes.”In the Tang Code with Subcommentary (Tang lüshuyi), the expression“transforming fa into lü”is interpreted as referring to Shang Yang’s reformulation of the six categories of fa (laws) found in Li Kui’s Canon of Laws (Fajing), reclassifying them under the designation of lü(statutes). These became the six statutes: Statute on Theft (Dao lü), Statute on Banditry (Zei lü), Statute on Imprisonment (Qiu lü), Statute on Arrest (Bu lü), Miscellaneous Statutes (Za lü), and Statute on Sentencing (Ju lü). This interpretation exerted considerable influence, and was subsequently adopted by later generations of scholars. However, the term lü(statute) had already been used as a legal designation prior to Shang Yang. Moreover, after Shang Yang’s reforms, the term fa (law) continued to exist in Qin legal practice, and there is no evidence that lüreplaced fa. Furthermore, Shang Yang’s reforms were carried out under the banner of“transforming the laws”(bian fa); if he had merely renamed the existing fa as lü, effecting only a nominal change in legal terminology, it would hardly have fulfilled Duke Xiao’s ambition to implement genuine legal reform.
This paper argues that gai fa (“reforming the laws”) and wei lü(“establishing statutes”) were two distinct methods employed by Shang Yang in promoting legal reform in the state of Qin. Through these two approaches, he simultaneously altered existing institutions and implemented new policies. Gai fa refers to the revision, supplementation, or transformation of the existing Qin legal system, including its institutions and customary practices; wei lüdenotes the formulation of legal provisions under the designation of lü(statutes), serving as a means to carry out the various aspects of legal reform. Gai fa (“reforming the laws”) and wei lü(“establishing statutes”) should be understood as referring to two distinct concepts; however, the two cannot be strictly separated, as they may both be involved in the same legal or administrative matter. The relationship between them may include instances where lü(statutes) are used to reform existing fa (laws), but there are also cases in which lüdirectly regulate both new and existing matters. In short, the terms gai fa and wei lüin Tang dynasty sources reflect substantive legal actions and should not be interpreted merely as a change in nomenclature.