【作者】 杨荔薇；

【导师】 陈兵；

【作者基本信息】 四川大学 ， 宗教学， 2005， 博士

【摘要】 原始佛教“正法律”是释迦牟尼佛及其弟子们对佛所说全部教法的称谓。“正法律”可以说是释迦牟尼佛基于其对宇宙人生的独特领悟而建立的主要适用于人类的律法体系。本论文是从法学领域之法理学的视角研究“正法律”的思想内容和理论体系的尝试,属于法学与佛学的交叉研究的一部分。全文共分绪论、正文、结语三大部分。 绪论部分,讲述本论文的选题缘起,对论文题目所涉及的概念进行了界定,并对本论文研究所依据的资料及前人的研究成果进行了说明,最后指出了本论文研究的意义和方法。 正文部分从五个方面进行了论述: 第1部分,概述世俗法律与原始佛教“正法律”。1.1部分阐述世俗法律:首先,考察“法”和“律”的字义,指出“法”有公平、正义等抽象的道德意义和自然特性,而“律”则强调依循和统一规范性,由此从字义上说明“法”之主导性和“律”之附属性。其次,从中、外两个方面考察法律含义的历史演变,发现法律中属于“法”的道德意义及自然整体意义在逐渐减弱,而属于“律”的统一规范意义在逐渐增强,即自然法的地位渐低而人定法的地位渐升。最后,分析当代法律的危机和原因,信仰危机源于法律演变中对自然法则的远离;而法律自身的危机是由于法律体系中“法”与“律”的地位的本末倒置——本应处于从属地位的“律”极度膨胀,而本应处于主导地位的“法”萎缩不显,这一状况导致“律”成为脱离了自然之“法”的无源之水,由此指出对自然界进行总体的、综合的思考为现代法学研究的首要任务。1.2更多还原

【Abstract】 The Right Dharma and Vinaya is the appellation generalizing the Buddhism doctrine preached by Sakyamuni and his disciples. The Right Dharma and Vinaya, a system of law and regulation, mainly apply in Human Being. It was established derived from Sakyamuni’s personal experience and comprehension on universe and life. The thesis, which belongs to a part of the intersecting study between the law and Buddhism, attempts to research on its thinking and theories of the Right Dharma and Vinaya from the perspective of the field of the science of law. The paper including three chapters, namely the introduction, the main body of the paper and the concluding remarks.The preface is on the background of choosing topics and the definition of the concepts concerned about this dissertation. Next, it illustrates the materials used for this dissertation and the achievements made by former experts. Last, it clarifies the significance and means of study this topic.The body makes a clear statement of this topic from the following five aspects:Chapter I: The general statement of the common law and the Right Dharma and Vinaya in the early Buddhism. Section 1.1 is on the common law partially. At first, it investigates the definition of "law" and "discipline". It points out that the "law" is of moral sense of equality and justice and natural characteristics, while the "discipline" emphasizes the following and the unity of regulation, therefore,we can know that the main status of the "law" and the subsidiary status of the "discipline" from the definition of the surface. Secondly, it investigates the historical evolution of "law" from the aspects at home and abroad. At last, it analyzes the danger and cause of the modern law, the crisis of believing laws originates from the departure towards natural rules in the evolution of laws; while the crisis of law oneself stems from the inverted situation of the position of the "law" and "discipline" in the system of laws. In the 1.2 section, through the studies of the Right Dharma and Vinaya in the early Buddhism, the author explains the sameness and difference between the common law and the Right Dharma and Vinaya in the side of the emergence, result and effect, and then indicates that the Right Dharma and Vinaya is a kind of excellent legal system which investigates the whole nature comprehensively.Chapter II: The discussion of the philosophical viewpoints of the Right Dharma and Vinaya. As the root of the all the concrete law, different philosophical viewpoints will have different performance of regulations. The basic difference between the Right Dharma and Vinaya and common law lies in the different knowledge towards the universal and life, mat is, the different philosophical viewpoints. Section 2.1 explains the theoretical base of philosophical viewpoint ofthe Right Dharma and Vinaya------The theory of Dependent Origination. Section2.2 expounds the content of the philosophical viewpoints of the Right Dharma and Vinaya in the angle of the universal and life. Section 2.3 analyzes the features of the philosophical viewpoints of the Right Dharma and Vinaya. One of the features is "The set-up of the general relations between everything based on the Law of Dependent Origination; the other is "the set-up of the essential status of the heart."Chapter III: From the angle of kindness, liberty and equality, this part expounds the values of the Right Dharma and Vinaya. Section 3.1 is on "kindness": it discusses the kindness of the Right Dharma and Vinaya and analyses the cause of the evil and the way of realizing the goodness. Section 3.2 is on "liberty": The liberty in the Right Dharma and Vinaya is a kind of release from all the troubles and pains. It is a kind of state of controlling your heart and not following the willof your heart. Three Studies of Sila, Dhyana and Prajna and the thirty-seven ways to Nirvana are means for liberty provided by the Right Dharma and Vinaya. Section 3.3 is on "equality": The equality in the Right Dharma and Vinaya refers to the equality of existence essentially. The proposition of "resultant of principal and subsidiary causes" shows the equality of the birth and the release of existence. The idea of impermanent and non-self shows the equality of the state of existence, the view of retribution shows the equality of the suffering of existence. Therefore, the equality in the Right Dharma and Vinaya mainly embodies the racial and sex equality. In the aspect of realizing the equality, the basic way to realize the equality means that everyone should handle the outside world of his heart equally. In the discussions of each part, the author compares it to the common law in the kindness, liberty and equality respectively.Chapter IV: It is about the statement of the behavior of rules of the Right Dharma and Vinaya. Section 4.1 is on the behavior of the laity. Firstly, it is about the prepared regulation be converted to Buddha-dharma-sangha; secondly, it sets forth the discipline and regulation which the laity should obey, they are five precepts, ten meritorious deeds, eight fast disciplines; moreover, it discusses the layman’s routine regulation and ethical and moral regulation, including how to deal with people and events, how to use their possessions and how to cope with the relationship of social moral principles. Section 4.2 is on the discussion of the requirement of the behavior of monks and nuns by the Right Dharma and Vinaya, including discipline and other regulations. Take the regulation of the theft as a example, section 4.3 discusses the difference and sameness between common law and the Right Dharma and Vinaya in four aspects of Subject, Subjective aspect, Object and Objective aspect.Chapter V: This part is about the system regulations in the Right Dharma and Vinaya. Section 5.1 introduces the legislation system: First of all, it is about the qualification of the legislative body and makes it clear that Buddha is the one who has the highest accomplishment in legislation. Secondly, it is about the guiding ideas and basic principles. The three guiding ideas of the Right Dharma andVinaya includes: it is useful for people to release from the suffering of old age, sickness and death, to let the dharma stay in the world permanently and to make everything virtuous grow constantly; meanwhile, the three basic principles of legislation are: the principle of formulating laws when people commits, the principle of formulating laws according to different time and places and the principles of following the former principles. What is more, it is about the statement of the reversion and explanation of the regulations. Section 5.2 is about the performance system elucidated in the following three aspects: Firstly, the abiding of law, it refers to the subjective cause, objective condition and flexibility; secondly, the enforcing of law, it is on the principles of KARMA; thirdly, the supervision and stimulation of law, it is about the principles of UPAVASATHA. Section 5.3 is on the punitive system. It mainly claims the ways of punishment, and also points out the characteristics of it’s punishment is to educate people and to purify soul.Conclusion: This part makes the general analysis of the Right Dharma and Vinaya in early Buddhism and points out that the Right Dharma and Vinaya is a perfect theoretical system encircles the Dharma. This system is much different, especially the theory based on the "Four Noble Truths" compared with other common laws and religious laws. The important idea of the Right Dharma and Vinaya is of stimulating significance to the construction of common laws in modern society.更多还原