【作者】 王静；

【导师】 郭东旭； 汪圣铎；

【作者基本信息】 河北大学 ， 中国古代史， 2008， 博士

【摘要】 道德法律化是中国古代社会法制发展进程中所表现出来的一种趋势,其历史渊源可追溯至中国传统法律起源之时。作为法的渊源之一的“礼”,对古人具有很强的权威性和约束力,是中国古代社会行为规范体系的核心,为整个社会和全体社会成员确定了“以正君臣、以笃父子、以睦兄弟、以齐上下、夫妇有所”的行为标准。“礼”兼具伦理道德的内容和法律的外在形式特征,为道德法律化奠定了坚实的基础。道德法律化的第一历史阶段为礼治盛行的夏、商、西周三代,礼和法的理论逐步丰富和完善,礼与法呈现出最初的融合趋向。周公制礼,巧妙地将温和的道德与威严的刑罚结合起来,产生了最初的以礼为本、刑罚为用的思想,后世的德主刑辅理论由此而萌芽,道德法律化的理论和实践始自这一时期。春秋战国至秦为道德法律化的第二历史阶段,这一阶段奠定了道德法律化的理论依据和社会根基。在剧烈的社会变革和复杂的政治斗争中,璀璨的历史一幕——百家争鸣应运而生,出现了儒家与法家的大争论。儒家强调“为政以德,譬如北辰居其所而众星拱之”的道德核心作用,指出在司法中,即使有良法,还须有良人和美德；而法家作为新兴地主阶级的代言人,主张“不务德而务法”。秦相商鞅在变法时提出“苟可以强国,不法其故；苟可以利民,不循其礼”,强调重法和崇法,在一定程度上轻视道德。但儒、法两家的争论很快就被儒、法的合流趋势所代替。尽管法家理论在秦王朝得以全面实施,暂时放慢了道德法律化的进程,但道德法律化的理论体系却在实践中继续发展和充实,铸就了强大的理论基础和社会基础,为后世道德法律化提供了强有力的指导和推动力。尤其是儒家学派“非礼无法”、“隆礼重法”等主张,强调不合乎礼(道德原则)的法律根本就不能成为法,极力要求立法须合乎儒家道德,法律成为维护儒家道德的工具,这些思想对中国封建社会的立法实践产生了重大影响,成为引领道德法律化发展与演进的基础理论。第三个历史阶段是道德法律化全面发展的两汉至魏晋南北朝时期。自汉武帝时,由于大一统集权政治体制建设的需要,提出“罢黜百家、独尊儒术”,表面上推行“扬儒抑法”,实际上却是“外儒内法”,使得礼与法从理论到实践实质性地走向合流。尤其是“引经注律”和“春秋决狱”,使儒家道德理念和礼制传统开始顺利而全面地渗入法律,向制度化与法律化迈进。三国以后,儒士控制了立法权,他们在立法活动中进一步推动了道德法律化的进程。第四个历史阶段是唐代以后,这一时期道德法律化进入了成熟演进的完备时期。唐初的律学家在《唐律》制定中坚持“一准乎礼”的原则,以道德指引立法,引礼入律,封建道德和法律达到了较好的统一,最终实现了礼与法的融合,以礼为核心的道德规范被进一步法典化、制度化。以礼入法从此成为中国古代社会普遍的法律现象,道德精神和宗旨渗透于法律的方方面面,在维护社会稳定、巩固和谐、推行教化等方面发挥了积极而长久的作用。中国古代通过立法实现道德法律化之后,道德精神在司法领域中亦得以充分贯彻,形成了恤刑省罚、执法原情、鞫谳分司、录囚会审、复核、复奏、秋冬行刑、调解教化等法律原则和制度。道德法律化是中国古代社会发展进程中的重要特征,既是传统法律思想的结晶,也是法律与社会环境有机结合的产物,集中体现了中国传统法律之所长和传统法律思想的睿智。取其精华,去其糟粕,对于我国当前道德建设和法治建设具有重要借鉴意义。道德的适度法律化,不仅有利于推进法治文明建设,也利于道德文明的发展。今天,我们要建立良性的社会秩序,达到总体和谐的社会效果,则更加需要深入研究道德与法律并举、自律与他律并重的社会规范机制,探讨在一定的限度和严格的法律原则之下,实现合法而科学的道德法律化。更多还原

【Abstract】 Codification of ethical principles was a trend and tradition in the development of ancient Chinese legal system and its history originated from the inception of Chinese traditional law. "Li"(Confucian, ancient Chinese moral and ethical principles) was highly authoritative and enforceable which was the central foundation of ancient Chinese social governing system, which defined a strict system of social ethical principles and established strict rules controlled the relationship among "king and officers, fathers and sons, brothers, spouses"."Li" and laws are the undivided two aspects of the same system. "Li" consist of ethical principles with a functional appearance/equivalence of law which laid a solid foundation for the codification of ethical principles into law.The first historic period in the codification of ethical principles included the Dynasties of Xia, Shang and West Zhou when Li system was very popular. The theories of Li and Law improved gradually and principles of Li and Law embedded into one another and exhibited the initial trend of co-extensive. The governing Li system by Zhou Gong neatly integrated the softness of ethical principles with the strictness of law, produced the original theory of Li (ethical principles) control the ends while laws served as the means. The theory that Law subordinates Ethical principles developed thereafter was the creation of the codification of ethical principles both in theory and practice.From Chun Qiu Zhan Guo (The Warring States Period) to Qin Dynasty was the second historic period in the development of codification of ethical principles which established the theory basis and social foundation for codifying ethical principles into law.A great historic drama--"letting a hundred schools of thought strive movement" occupied the historic forum during the dramatic social revolution and complex political fights, started great debate between Legalism (Fa Jia) and Confucianism (Ru Jia). Politics is most sensitive to the rules of governing people while plants are sensitive to the natural conditions of soil. Just like Cattail Lu (an ancient Chinese plant) grow quickly when soil conditions are good, a country will thrill when governed by great leaders. Therefore good government depends on good officers who achieve higher moral status through self discipline. This theory emphasized the importance of good people as leaders in government. Confucius further advocated that political system built on great morality resembles the North Star being respected by many surrounding stars, emphasized the essential roles of moral and ethical principles, pointing out that legal system requires people with great ethical characters in addition to good laws. Although the method and art of Yi (an ancient Chinese legendary archer who was good at bow and arrow) were handed down to later generations, yet not every generation had individual who is as good archer as Yi. The great governing principles of Yu (Emperor of Xia Dynasty) were inherited by the later rulers and yet not all the kings of Xia Dynasty were capable of ruling the country as well as Yu. Therefore law is not independent which works only when good people are enforcing it.Legalism (Fa Jia) representing the newly formed class of landlords on the other hand advocated relying on law rather than ethical principles. Shang Yang, the prime minister of Qin Dynasty proposed that great leaders can establish a powerful country without following its tradition and serve the people without following their ethical principles, emphasized the importance of law over ethical principles to a certain extent. The great debate between the two school of thoughts of legalism and confusions were soon replaced by the trend of blending the two thoughts together. The theory of legalism ruled during Qin Dynasty which slowed the progress of codifying ethical principles. However the theory system of ethical principle codification continued its development in the legal practice and thinking process during this period which built a solid social and theory foundation, provided importance guidance and driving force for further ethical principles codification in later generations.The view of "No ethical principles, No law" held by Confucianism especially emphasized that anything that is unethical can not become law, and required that law must fit the ethical principles of Confucianism, which converted law into a tool for enforcing their ethical principles. This theory greatly influenced the development of legal system in Chinese feudal societies which has been the main and leading school of thoughts on codifying ethical principle into law.From Han Dynasty (subdivided into Western and Eastern Han Dynasty) to Wei, Jin Northern and Southern Dynasties, the codification of ethical principles into law reached its third historic period of comprehensive development. To satisfy the needs of centralized hierarchy system, Emperor Wu of Han Dynasty applied a system that followed the Confucianism only and abandoned all other thoughts of legal system, which in reality followed Confucianism at its surface while applied Legalism in actual legal practice. It protected the hierarchy power of the emperor with a mono legal system while utilized the ethical principles on the surface to control the people, the two schools of legal theories Legalism (Fa Jia) and Confucianism (Ru Jia) merged together into the law.The legal practice of theory proposed in Chun Qiu Jue Yu (an ancient Chinese legal theory proposed by Dong Zhong Shu) blended ethical principles into legal system which occupied leading position. Law protected ethical principles which accomplished the codification of ethical principles held by Confucianism. The feudal classes have been legally codified. Confucianism scholars who were experts in both economic and law participated in the law making and enforcement process which further blended ethical principles with law and promoted the development of codification of ethical principles into law.The fourth historic period of codifying ethical principles started after Tang Dynasty, which codification of ethical principles had developed comprehensively. Ethical principles were regard higher than the law and law was considered the means for the ethical principles. The representative traditional work "Law of Tang Dynasty" realized the legal practice of ethical principles, codified ethics into law, which combined and blended the law and ethics into each other while ethical principles guided the law. Ten major crimes described in Tang Law is one important example. The law fit the ethics, and the feudal ethical duties were reconciled well with that of law, the ethics and law blended together. The ethical principles were further codified while the law illustrated the trend to fit ethics. Codifying ethical principles into law became a popular ancient Chinese legal practice and theory. The ethical principles embedded into many aspects of law. The codified ethical principles and ethical laws played important roles during a long history in the social stabilization, process of learning from nature, and control of the people. In fact ancient Chinese ethics law itself is Confucianism. Confucianism scholars and advocates defined ethics and law as means and end, ethics is the end while law is the means. Ethical principles were embedded into law enforcement which formed the special legal enforcement system that follows ethical principles.The major characteristic of Chinese ancient societies, the codification of ethical principles is the result of traditional legal theory and the organic fruit of the interaction between law, natural and social conditions, which represented the benefits of traditional Chinese laws and legal theory. Selective adoption of the traditional legal theory can be helpful in the construction of our modern ethics and law. The ancient Chinese theory and practice combining law with Li (ethical principles) and law subordinated ethical principles provides us a historic model for the development of modern ethical moral and good legal system in governing our country.Proper codification of ethical principles into law can promote the development of legal civilization which is also beneficial to the progress of moral civilization. Today, we are developing good social orders in order to reach the goal of general social harmonious; we therefore need deeper research on the topic of blending ethical principles with law, combining self discipline and social regulation, explore the modern legal and scientific codification of ethical principles within the scope of strict legal standards.更多还原