经学刑德观与汉代法律研究

【作者】 汪荣；

【导师】 曾代伟；

【作者基本信息】 西南政法大学 ， 法律史学， 2008， 博士

【摘要】 众所周知,两汉时期是我国经学发展的昌明时代,也是我国封建正统法律思想与法律制度形成与发展的奠基时代。从西汉武帝“罢黜百家,独尊儒术”以来,儒家经学从意识形态的边缘走向政治中心,并影响到汉代社会的方方面面。同时,两汉也是我国封建法律成长和发展的重要时期,在汉帝国以经治国思想指导下,我国汉代封建法制的发展长期以经学思想为指导。“汉代学术的核心在于儒家经学,汉代的政治史称经学政治,汉代的法制也是以经为法”。所以,两汉经学对我国法文化影响深远。我国封建社会的立法不仅不会同经义相冲突,而且从根本上讲,经义就是我国封建法制建设的精髓和灵魂。我国的传统法律文化,简而言之就是一种以儒家经典教义作为法律内在精神的“礼法文化”,礼和法之间纠缠错节的关系一直是中国法律史上一道亮丽的风景线。它自产生以来,就一直源源不断地发展壮大,长期影响着古代中国人的政治法律理念和法律实践,并逐渐形成独具特色的东方法律文化,成为别具一格的中华法系的核心内容。汉代法律儒家化运动轰轰烈烈,到隋唐时期法律的儒家化宣告完成,这场运动的结晶—《唐律疏议》成为中华法系的最典型代表作。此后经宋、元、明、清各朝所继承,并一脉相承地发展,直至晚清的多法系律,以儒家法文化作为指导精神的中华法系才随着大清帝国的灭亡,制度化儒家的解体宣告结束。从这个意义上说,我们研究中国古代的法律,如果不把经学纳入视野,不考虑经学中的刑德观在古代法律中的作用与影响,显然是有失妥当的。因而,本文以经学的刑德观为视角,从刑德观切入,对两汉经学的刑德观与汉律之关系进行探讨,并进而对传统法律文化中最为核心的礼法关系作一个全面、系统的审视。除了引言和余论之外,本文主体部分包括五章。本文的第一章为汉代经学刑德观的形成与发展。在这一部分中首先对本文中涉及到的几个关键词,如刑、德的基本含义作了一个相应地交代,对刑、德基本概念及先秦儒家刑德观的起源与发展作了追溯。然后从整体上对汉代经学刑德观的形成与发展作了一个总括性的追根溯源的阐释,分析了先秦儒家刑德观的形成,点明了儒家刑德观在先秦法律思想中的重要作用。从实践形态来说,儒家通过“刑德”尤其是“德”来建构了统治合法性并贯穿于整个中国古代社会。“德”构成了中国传统政治中合法性问题的实质因素,甚至有时还是一种决定性因素。尤其是当帝王取得政权的手段并不正当,但若其在位期间注重德行,施行仁政,其统治的合法性依然会得到民众的认可。从中不难看出,先秦儒家对先秦时期的法律起源与发展产生了重大影响。其次从刑德观的层面分析了汉代经学及其刑德观的确立与发展。儒学在经历了秦的以吏为师、以法为教、严刑峻法、“焚书坑儒”的打击后,在汉初儒士的积极努力下,经过吸纳其他学派的思想,不断发生变异,逐渐从边缘走向政治意识形态的中心。文章中先对汉初儒学的变异及经学的兴起进行了探讨,然后将汉初儒学对黄老道学、法家之学的吸纳纳入到儒学刑德观的视野,对儒学与黄老道学、法家之学之间的内在关系进行了分析。从汉代新儒学的理论建构形态来看,新儒学是一个豁达兼容的思想体系,它广泛吸收了黄老学的刑德观、法家的尊君卑臣术,后来又经过诸多经学者尤其是董仲舒的改造和发展之后,形成一套完整的中国传统伦理政治的合法性理论体系。以礼学为主体的意识形态长期影响乃至主宰着人们的政治观念和日常行为。先秦时代曾经被儒、法两家纷争不休、一度显得对立的刑德观念,同时存在于汉帝国的政治领域之内。虽然律法实际上已经是汉代政治生活的基本语言,但是人们对法的思考方式却“礼”的。在汉代,经学提倡的“礼”是更根本的“法”,是法律的真正源头。时势固然使律法作为一种新型的政治规范成为可能,却是被看作实现“礼治”的手段和凭借。刑罚目的不是为了达到现代人所熟悉的法律秩序,而是为了实现“刑措”。这在西汉元、成二帝之后,更成为常识。本章主要从先秦儒家刑德观的起源与发展、汉初儒学的变异与经学的兴起、汉初儒学对黄老道学、法家之学的吸纳、今文经学的阴阳五行化与阴阳刑德观的形成、从武帝继位到石渠阁会议经学刑德观的确立与发展等几个方面入手,对汉代经学刑德观的确立与发展作了具体的探讨和分析。本文的第二章从刑德观角度入手,对汉代经学中的法律思想作了较为系统的分析,探讨了公羊学的法律思想;谷梁学的法律思想;公羊、谷梁学派法思想的分歧与影响;古文经学中的法律思想;对今、古文经学中法思想的分歧与影响作了具体的思考和分析。公羊学是我国儒家传统中具有独特性质的儒学,也是汉代经学中一种势力强大的学说,在汉代儒家今文经学中,公羊学尤其独领风骚,形成了独树一帜的公羊学所特有的学术传统,这使公羊学在性质上区别于其它的传统儒学。目前,学术界对《春秋》公羊学的基本思想的研究多从历史或哲学角度研究的居多。对其法律思想的研究,法史学界除对董仲舒法律思想及春秋决狱多有涉及以外,对其它法律思想方面的研究则较为少见。而对春秋决狱的研究也只是对其现象的研究居多,未站在经学者立场上理解经义决狱的真实意图。蒋庆先生认为:“公羊学是区别于心性儒学的政治儒学,公羊学的焦虑是制度性的焦虑,公羊学的实践目标不在成已德,而在改制立法”由此可见公羊学所关心的问题主要在国家政治、法律方面的问题,公羊学家研究公羊学目的在于以学论政,以匡时弊,为汉制法。从而在公羊学中具有丰富的法律思想。然而遗憾的是,迄今为止,对公羊学派的法律思想的研究仍不多见。笔者认为,汉代公羊学及公羊学家们的法律思想主要体现在以下几个方面:第一,经权观中的礼法结合、刑德互变思想;第二,大一统中的王权至上、法自君出的思想;第三,三统中的变法思想;第四,伦理秩序中的复仇犯罪思想。到了西汉中后期,谷梁学派兴起,综观汉代谷梁学刑德观的基本内容及其产生和发展的历程,笔者认为,谷梁学的法律思想主要体现为:1、以礼统法思想2、刑德并用、尚德宽刑思想3、阴阳刑德思想。在汉代,除今文经学派以外,古文经学也在西汉末兴起。就古文经学来说,古文经学的兴起有着复杂的政治文化背景,它与西汉的政治、法律实践有十分密切的联系。在东汉,“东汉功臣多近儒”,儒家经学被广泛运用于政治、法律运作之中,对汉代政治、法律秩序产生了重大影响。本章对古文经学中较突出的重礼轻刑思想;反对复仇、预防犯罪思想等内容都作了具体分析,并进一步探讨了公谷法思想的分歧对西汉中后期法律思想的影响;今古文经学中法思想的分歧对东汉法律思想的影响。根据笔者所占有的资料,结合法律史学和历史学、哲学在此方面的研究现状,在本章中较全面系统地“描述”和“阐释”了两汉儒家经学中的法律思想,并对学界少有涉及的经学内部派别中法律思想的内容;内部派别中法律思想的分歧及其对汉代法律思想的发展趋势与影响都作了一定的观照和分析。本文的第三章对两汉经学刑德观与汉代的立法作了较为系统的探析。对经义与法律形式;经义与法律解释;立法官员的经学化作了较系统的阐释。对帝王的经学化对汉代立法的作用也作了系统分析,经学刑德观对汉律的渗透以及律说的“说各驳异”现象、经学章句对律章句的作用等都作了一定的分析;对经学刑德观深入汉代中央和地方法律的情形作了较翔实的阐述;并指出了引经入诏令对汉法律经学化的重要意义以及经学刑德观对汉代立法的重要作用。自西汉建立后,经过西汉前期儒家学者的努力,使儒学在汉代得以恢复和发展。并在西汉时期掀起了经学思潮。特别是汉武帝“独尊儒术”之后,经学对汉代社会产生了极强的整合作用。“以经治国,是汉史研究中的一个重要课题。”但迄今为止,仍有很多问题尚未被法史学界、历史学界学者深入研究。其中两个突出问题,一个就是经学刑德观对汉代法律形式尤其是诏令的影响,另一个就是对汉律儒家化开始的时间。目前学界多认为这两个问题都是在汉武帝“独尊儒术”之后,尤其是董仲舒掀起“春秋决狱”之后才开始出现的。笔者通过对《史记》、《汉书》、《后汉书》以及《西汉会要》、《东汉会要》、《资治通鉴》等书中的两汉经学与法律相关问题的分析,认为在西汉建立不久就出现了。在西汉前期,汉儒积极发挥其“守成”之术,不断改变汉帝国内的军功统治阶层“少文多质”的局面,从而也使儒家《诗》、《书》等文化经典走入了统治者的视野,并促进了汉初统治者改变“鄙儒”的作法,使儒学在汉初社会不断兴起。在汉文帝时,由于深受汉高祖、惠帝的影响,文帝对儒家经书多有接触,并由此开创了引经入诏令的先河。汉代自汉武帝接受儒家今文经学大师董仲舒“独尊儒术”的建议后,到汉宣帝时,宣帝于地节三年十一月,下诏举孝悌,他责备自己在实行“王道”,宣扬儒家思想方面有所欠缺,于是下诏说:“朕既不逮,导民不明,反侧晨兴,念虑万方,不忘元元。……”传曰:“孝弟也者,其为仁之本与!”其令郡国举孝弟有行义闻于乡里者各一人。”显然,经学的刑德观已经深入汉代诏令这种法律形式之中。在本章中,笔者通过对资料的分析,对尚未被法史学界及历史学界学者深入研究的经学刑德观对汉代法律形式的渗透;经学刑德观与汉代地方法规的影响等问题作了分析,尤其是对经义与律、经义与诏令、经义与比的分析,提出了汉律的经学化、儒家化在西汉初年已经开始的新见解。本文的第四章主要对汉代法律制度的经学化作了系统的论述。对经学刑德观与汉代刑法制度、经学中的阴阳五行思维与法律的制度化、违背与滥用经术的法律责任作出了较深入的分析。在经学刑德观与刑法制度中主要对经学刑德观与容隐制度、“八议”制度的形成作了全面的分析。在经学的阴阳五行思维与法律的制度化、定式化中主要对阴阳五行与司法时令、阴阳五行与灾异赦宥、阴阳五行与五刑之关系作出了全面深入的分析。在违背与滥用经术的法律责任中,对违背君主政治伦理与刑罚、违背家庭伦理与刑罚、滥用经术与刑罚等问题都作出了系统的阐释。在本章中,笔者根据对法史学界、历史学、哲学界的研究现状的分析,对学界少有涉及的经学思维尤其是作为“中国人的思想律”的阴阳五行思维对汉律的影响作出了较系统的分析和研究。并对违背与滥用经术的法律责任作了较为全面、深入的分析。通过对资料的整理、分析并对“亲亲相隐”入律的时间、汉代“妖言罪”恢复的原因与时间等问题作了具体分析,并提出了新的看法和新的思考。在本文的第五章中,笔者对汉代经学刑德观与司法作了较为系统的分析。在两汉时期,随着经学的发展,在以经治国的影响下,经学刑德观已经渗透到汉代司法之中,并对之做出了巨大贡献,在汉代的法律实践中产生了重大而深远的影响。本章对经学刑德观与司法制度如经学刑德观与悯囚制度、经学刑德观与录囚制度,对循吏、经学化文法吏、经术之士的司法实践及其司法风格均作出了全面、深入的分析。余论部分就经学思维与汉律的影响、汉代经学刑德观对我国传统法律文化的影响也作了一定的分析,并对全文进行了总结以及对这一研究需进一步努力之方向也作了一定的思考。汉代之后,随着中国的儒家化进程,礼逐渐显现出由外而内、由表及里的趋势,并具体表现为经义对法律制度的渗透。经学刑德观对刑罚制度的渗透,经学思维也对法制的经学化之影响,尤其是经学中的阴阳五行思维对刑法的影响深远,并使五刑及诸多刑法制度化、定式化。本章中,笔者根据对法史学界、历史学界的研究现状的分析,对学界少有涉及的经学思维对汉律的影响作出了较系统的分析和研究。并在法史学界就“经义决狱”的研究基础之上,对“经义决狱”出现的时间、原因也作出了进一步的分析,并提出了新的看法。总的来说,汉代是经学的昌明时代,同时又是我国封建正统法律思想形成与法律制度初步发展的重要奠基阶段。他们的同时兴盛决非偶然,它们之间必然存在着密切的联系。探究两者的内在关系,不仅对理解中国古代法律思想、法律制度以及法律儒家化的形成与发展有很大帮助,而且对理解儒家经学与古代法律的渗透以及二者的互动关系也大有裨益。汉代经学刑德观已经深入到汉代法律思想、法律制度、法律实践的运作之中,形成了礼与法的历史连接。从历史的发展情况来看,汉代以后的王朝在国家的制度设计中,不但未能走出汉代经学所设计的礼与法的框架,而且“礼法”始终是维系着我国封建国家的组织架构和权力结构的基本规范。我们从儒家经学的经典在历代都受到帝王的尊重可知,在儒家经学刑德观念中的“礼法”,是一代王朝的政教刑法和朝章国典,它涵盖了君主的职权、政治架构、君臣关系等,是君主制国家最重要的制度;并成为中国古代社会普遍遵从与实施的、具有根本性的规范体系,是我国整个帝制时代修齐治平、安邦定国的大法,对我国传统法文化影响深远。所以,我们要研究汉代法律史,汉代经学中的刑德观与汉律之关系是一个不能忽视而值得注意的重要课题。更多还原

【Abstract】 As well known, the eastern and western dynasties were prosperous and open times on the development of canons. They were also the period of the formation and development of the orthodox thought of feudal laws and their regulation in China. It’s also known that Since the policy of "Discard the hundred schools and respect only Confucianism" of Emperor Hanwu, the development of legislation in Chinese ancient feudalism, for a long time, had made the thought of canon as their guidance, and the thought of Confucianism had stepped into the center of the politics from its peripheral position and influenced various aspects of social life in Han Dynasty.Simultaneously, this dynasty was significant for development of Chinese law. And with the guidance of governing the country with the thought of canons in Han Empire, "the focus of academics in Han was on the canons of Confucianism; the history of politics was called the canonic politics; and the legislation in Han was treating the canon as their law." The feudal legislation was conducted in accordance with the thought of Confucianism, which was just the spirit and soul for the construction of law in feudal China. Thus the hermeneutics of Han Dynasties had profound effect on Chinese culture of law. The traditional culture of law in China, a kind of "culture of rituals and laws" with the thought of Confucianism as the essence for the construction of the feudal laws in China, paid much attention to the intimating relationship between the rituals and the laws. Since its birth, the thought of Confucianism continued influencing the ancient Chinese people’s conception of politics and legislation, and their practice of law. It became the unique feature of the oriented culture of law, and the core of Chinese legislative systems. The Confucian movement of law in Han dynasty was so vigorous that it bitted the dust and didn’t declare its accomplishment until the Sui and Tang Dynasties. The fruit of this movement-- The Tang Law Dredges Opinion became the most typical representative of Chinese law system. After that, the Confucian movement of law was derived from the same origin and inherited by the governors in the dynasties of Song, Yuan, Ming and Qing. Until late Qing, the Chinese legislative systems, which had been making the Confucianism of the culture of law as their tenor, declared their dissolution with the emergence of multi-systems of law and the subversion of the empire of Qing. In this sense, the study of Chinese ancient laws, if not taking the hermeneutic into its perspectives, or not taking the role and its influence of the conception of penal code and morality of hermeneutic in ancient law, obviously, would be inappropriate. Therefore, this thesis is to do some research on the relationships between the laws in Two Hans and their conceptions of penal code and morality of hermeneutics from the aspect of the latter and with the conceptions of penal code and morality as the cutting point, and further, to give a macro-certification on the core of the traditional culture of law—the rituals.Except the introduction and conclusion, the paper includes the following five chapters:Chapter one discusses the basic conceptions and the origin and development of the Pre-Qin Confucianism and its laws. First of all, this part, accordingly, explains several key words involved, such as the basic meaning of the penal code, the morality, and so on. Then the author analyses the formation of the ideas of law in the Pre-Qin Confucianism to demonstrate the formation of the conception of penal code and morality in the Pre-Qin Dynasty and the development of its thought of law. This part also points out the important role of the conception of penal code and morality in the thought of law in the Pre-Qin Dynasty. From the perspective of practice, the construction of the legality of ruling by using "morality" has a long history throughout the whole ancient society of China. Morality came into being the substantial, sometimes the decisive factor of the issue on the legality in Chinese traditional politics. Especially, if a king paid attention to his morality, and adopted the policy of benevolence, although his means of coming into power was not legitimate, the legality of coming into power still could be recognized by the people. It’s not difficult to see that the Confucian of the pre-Qin had a great influence on the origin and development of the laws at that time.Chapter two analyses the establishment and development of hermeneutics of Han and its conception of penal code and morality from the perspective of the conception of penal code and morality. After the attack of making officials as teachers, laws as norms, serious punishment, and burning the books and burying the literati, the study of Confucian, with the efforts of the Confucian scholars, came to enter the center of the politics from peripherals by its adopting the advanced thoughts of other schools and its continuous development. From the perspective of its theoretical thought, the new school of Confucian was a tolerant open thought system: After its wide adoption of the conception of penal code and morality from the school of Daos, the means of making the ministers subjecting to the king, and the reform and development of many scholars of Confucian especially Dong Zhongshu, the new Confucianism formed a completely legal theoretical system of Chinese traditional ethical politics. This made the conception of penal code and morality, which had been disputed severely by the schools of Confucianism and legalism and once fought against each other, lay together in the field of the emperor’s politics. Although the disciplines and laws, in fact, had been the basic language in Han’s political lives, the ways of thought on law was still "rituals". The"rituals", advocated by the hermeneutics, was the most basic "laws", the origin of law. The current, although made it possible for the laws to become a new style of political norms, was still regarded as a means or an excuse to realize "ruling by rituals". The aim of penalty was not to reach the order of law, which our modern people are familiar with, but to realize the "rituals". This became the general knowledge after the emperors of Yuan and Cheng in western Han. Beginning with the establishment and development of the early Han’s conception of penal code and morality of hermeneutics, the dissertation takes into consideration of both Daoism and legalism in the study of the early Han’s ConfucianBy concretely analyzing the variation of the Confucian’s thoughts in early Han and the growth of hermeneutics, the intrinsic relationships between the Confucianism, and the Daoism and the legalism, early Han’s adoption of the Daoism and Legalism, the formation of the thought of Yin & Yang penal code and morality in current Confucian classics, the establishment and development of the conception of penal code and morality from the succession of Emperor Wu to the Shiquge Conference, this chapter totally demonstrates establishment of hermeneutic in Han dynasty and its development, and the formation of the conception of penal code and morality of hermeneutics.The third chapter analyses the conception of the penal code and morality in Han’s hermeneutics and its thought of law, discusses the thoughts of law in Gongyang School, Guliang School, and the study of Confucian classics. The Gongyang School was a branch of the Confucianism with its unique nature in Confucian tradition. It was also a school with great power in Han’s hermeneutics. In the study of current Confucian classics, the school of Gongyang, especially, distinct from others with unique academic tradition of its own. At present, the researches on the basic thought of the school of Gongyang are mostly from the perspectives of history and philosophy. However, except Dong Zhongshu’s thought of law and waiting of prison in Spring and Summer, the circle of the history of law seldom concerns Gong yang’s thought of law. While talking about the research of the awaiting of prison in Spring and Summer, mainly scholars, not on the standpoint of hermeneutic, hardly focus on the real intention of the awaiting of prison the Confucianism, but only stood on the level of some phenomenon. Mr. Jiangqing thinks: "the study of Gongyang is the political Confucianism that is different from the Confucianism of human nature; its anxiety is the anxiety of institutions; its practical aim is not for the present morality, but for the change of the systems and establishing laws". The main issues that Gongyang concerns are those of national politics and their laws, and the purpose that the scholars study Gongyang is to discuss politics by study, to correct the current mistakes, and establish laws for the Han dynasty. That’s why there are rich thoughts of law in the study of Gongyang. Regretfully, by now, the research on the thoughts of law in the school of Gongyang has still hardly been seen. The author thinks that the study of Gongyang and their scholars’ thoughts of law in Han Dynasty mainly manifests in the following aspects:Firstly, the thought of the combination of rituals and laws, and the interchange between the penalty and the morality in the conception of hermeneutics and power; Secondly, the thought of the king’s supreme power, and the laws from the king in the Grand Unit; Thirdly, the thought of changing laws in the Three Unities; Fourthly, the thought of crimes for revenge in ethic order. During the middle and late periods of western Han, there arose the school of Guliang. Conclusively, from the essential content and its course of rising and developing of the conception of penal code and morality in the study of Guliang, the author finds its main thoughts of law are: First, the thought of ritual system; Second, the necessity of forgiveness in ruling by laws; Third, the thought of taking the people as the foundation; Fourth, the thought of morality before penalty. In Han Dynasty, besides the study of the current Confucianism, the study of the Confucian classics also arose in late western Han. The arising of the Confucian classics has its complicated political and cultural background, and it connected with the practice of politics and law in Western Han. While in Eastern Han, the hermeneutics of Confucianism was widely used in the operation of politics and law for "the officials who made great contributions in Eastern Han were all close to the Confucianism". This had great influence on the order of Han’s politics and laws. This chapter analyses on the prominent thoughts of preferring ceremony to penalty, the opposition of revenge, the prevention of crimes, and the Proper Dharma against fate, and discusses further the effect of the Gonggu law’s divergence on the thought of law in middle and late Western Han, and the divergence between current and the Confucian classics on the thought of law in Eastern Han. In this chapter, the author, describes and illustrates the thoughts of law in Two Hans’ Confucianism comprehensively and systematically, and analyzes the thoughts of law and its transitional history in different schools of hermeneutics which the academic circle seldom concern.Chapter four gives a systemic illustration on the conception of penal code with morality in Two Hans, and the institutions of law in Han Dynasty. This part elaborates the relationships between the senses of hermeneutics and the forms of law, the system of discussing crime, the criminal code systems in Han Dynasty, the prison administration systems, and the relationships between the canons of Confucianism and the codes of law, and points out the signality of introducing the hermeneutics into the decree to the Confucian of Han’s law, and the important role of the Confucian hermeneutics on the construction of the systems of law. Since the establishment of the Western Han, with the efforts of scholars in the early Han Dynasty, the Confucianism greatly developed. Furthermore, it had set off the thought of learning the canons of Confucianism. Especially, after Emperor Hanwu’s adopted the policy of "Discard the hundred schools and respect only Confucianism", the canons played a very great role of integration to the society in Han Dynasty. "Governing the country is an important project in the study of Han’s history." So far, however, there are still many issues that have never been studied further by the scholars Among them, the following two are especially stand-out: one is the influence of the Confucian canons on the forms of law, particularly the decrees, while the other is the starting time of the Confucian of Han’s law.Currently, most of the scholars are of the opinion that these two events happened after the adoption of "Discard the hundred schools and respect only Confucianism", especially after the "the debating on crime in Spring and Summer". By analyzing the issues about Two Hans’ hermeneutic and law in Historical Records, History of Han Dynasty, Post-Han Dynasty Record, Conference Record of Western Han, and Conference Record of Eastern Han, the author proposes that they appeared soon after the establishment of Western Han. During the early period of Western Han, the scholars of Han paid attention to the role of "keeping tradition". They kept changing the situation of "less elegance and more rituals " of ruling class in the inner part of the Han empire, which made the Confucian canons such as The Poetry, The Book and so on, have entered into the range of ruling class, and changed behavior of "looking down upon the Confucianism" the early Han’s ruling class. Thus the Confucianism prospered in early Han’s society. Deeply influenced by Emperor Gaozhu, and Emperor Hui,etc, Emperor Wen absorbed into more Confucian canons, and he created the precedent of "introducing the canons to the decrees." After Emperor Hanxuan acceded to the throne, he ordered to select filial piety in November, the third year of Dijie. He blamed himself for performing "the way of king", and declared that there be some defaults in the thought of Confucianism, so he said: "I already fall short, lead the people to be unclear, sleep poorly the early morning to be popular. Once pondering ten thousand sides, I can not forget the root..."then he conveyed the words: "the filial piety, is the root of kindness." "Then he ordered to recommend one person who is well known for his filial piety, and one for his kindness around the counties or kingdoms." Obviously, the hermeneutic conception of penal code and morality had already rooted deeply into the forms of law as decrees in Han Dynasty. After Han, the rituals, following China’s process of being the Confucian, showed the trend from surface to substance. Concretely, it manifested the penetration of the meaning of canons to the laws and institutions in Han Dynasty. The conception of penal code and morality had a great effect on the systems of debating the crimes, prison administrations, the thought of hermeneutic, and the laws and institutions as well. Furthermore, the thought of five elements in yin and yang in hermeneutics influenced on the penal code significantly . It also made the five penal codes and others institutional and formal. In this chapter, the author, does systematic researches on the influence of the thought of five elements in yin and yang, which, especially, as "the rule of Chinese thought", was seldom considered by scholars who research the Chinese law.Chapter five discusses the conception of penal code and morality of Han’s hermeneutics and its practice in law. In this period, as the development of hermeneutics, the conception of penal code and morality, under the influence of governing the country with hermeneutics, had penetrated into the legislation and justice of Han, and made great contribution to both of them. It also had a great and deep effect on the practice of law and put to the use that can’t be underestimated. This chapter analyzes the canonization and Han’s legislation, demonstrates the situation of the conception of penal code and morality of hermeneutics entering into the legislation in both central and local governments; gives a certain analysis on the practice of legislation and its style of the benevolent officials, the cannoned officials, and the skilled scholars, the phenomenon of the conception of penal code and morality entering into the Han’s law and law’s explanation of "different ideas and refuting others" in explaining the laws with canons, and the role that the chapters in hermeneutics play on those in laws. This part also discusses the responsibility of abusing the classics and breaking the Han’s law. The last part of this thesis does some research on the influence of the conception of the penal code and the morality of Han’s hermeneutics in the traditional culture of law, generalizes the whole passage and thinks over the further efforts about this research. This chapter offers some new ideas on the following issues: the time of Chun Qiu Statute, the starting time of the Confucian of Han’s law, and the reason and time of recovering "the sin of heresy."Conclusively, the Han dynasty was a prosperous and open time of canons. At the same time, it was also the important period on the form and development of the orthodox thought of feudal law and its regulation in our country. Their simultaneous flourish is never accidental, and there must be close ties between them. Exploring the inner relationships between these events helps us not only to understand, the form and development of the thoughts of China’s ancient law, its systems, its confucianization, but also to understand the penetration of the hermeneutics into the ancient laws and their interaction. The conception of penal code and morality of canons in Han Dynasty had entered deeply into the thoughts of law, their systems, and the operation of practice, and formed the historical connection between the rituals and the laws. From the situation of historical development, in the designing of the country’s systems, the dynasties after Han couldn’t walk out of the framework of rituals and laws designed by the hermeneutics in Han Dynasty, instead, the rituals and laws were the basic norms that maintain our feudal country’s structures of organization and power all along. From the emperors’ respect of the Confucian canons in all dynasties, we can see that the rituals and laws in the conception of penal code and morality, is the criminal law of both politics and religion, and a country’s law of a dynasty, which covers the most important system in a reigning monarchy such as the rights and obligations of an emperor, the political structures, and the relationships between the emperor and the minister, and so on. It became the basic standard system which was generally complied and performed in Chinese ancient society. It was the basic law that governed the states and kept the peace in the history, and profoundly influenced our traditional culture of law. Therefore, in order to study of the history of law in Han Dynasty, the relationships between the conception of penal code and morality, and the Han’s law is an important research project that can’t be ignored.更多还原