清华简《保训》与黄帝四经《道法》法律思想比较研究

发布时间：2018-01-21 19:26

本文关键词： 保训中道法刑名　出处：《上海社会科学院》2017年硕士论文　论文类型：学位论文

【摘要】：春秋战国是我国社会大变革时期。这一时期,生产力显著提高,新兴地主阶级从旧制度中产生壮大,诸子百家争鸣,南北文化交流融合。而清华简《保训》、黄帝四经《道法》两者皆出自楚地,成书于战国时期,代表着当时楚国文化中的法律思想。都是我国珍贵的古代文献,对于研究我国先秦法律思想具有重要的价值。从《保训》与《道法》整体主旨比较,《保训》核心在于"中"和德,目的在于"受天命",具有儒家人治的色彩。而《道法》则偏重"道",人可以认识道制定法律,道超脱于人,因而《道法》具有不同于人治的法治思想,是一种法律意识的进步。可见《保训》和《道法》从其主旨来看属于儒家和道家两个不同的学说派别。但从现代法律方面来分类,两者在立法、执法、司法、守法等方面都有所表述。相比较而言,《保训》认为法从先王治国经验而来,立法考虑百姓意愿,执法要求"中"且"不易实变名"。而《道法》更强调"道生法",立法合"道";司法要去私立公的法律思想是不同的。二者在守法达成一致,认为在属地范围都必须遵守,不可废弛。从经验之谈到一种理性的认识,是对法律思考的深入。从其思想内容以及时代推算,《保训》早于《道法》。《保训》和《道法》对于我国的法律文化也产生了重要的影响。儒道对于法律的认识在战国时期,甚至是秦、汉等王朝具有一定的连续性。特别是在汉代,黄儒斗争激烈。儒生董仲舒,结合黄老思想提出"春秋决狱""秋冬行刑"以德治国等思想,开启了儒法合流的时代。法律儒家化成为古代法律的重要特征。
[Abstract]:The Spring and Autumn period and warring States period was a period of great social change in our country. During this period, the productivity increased significantly, the new landlord class grew stronger from the old system, the various schools of thought were in contention, and the cultural exchange between the North and the South was merged. The four Classics of the Yellow Emperor "Taoism" and "Taoism" were written in the warring States period, representing the legal thought in the culture of Chu at that time. Both of them are precious ancient documents of our country. It is of great value to study the legal thought of pre-Qin period in our country. Compared with the whole purport of "protecting and training" and "Taoism", the core of "protection and training" lies in "middle" and "virtue", and the purpose is to "receive the destiny". It has the color of Confucian rule by man. However, "Taoism" emphasizes "Tao". People can realize that Tao makes laws, and the Tao is transcendent to people, so the "Taoism" has different thoughts of rule of law from the rule of man. It is a kind of progress of legal consciousness. It can be seen that the precepts and Daoism belong to two different schools of Confucianism and Taoism from its main point of view. But they are classified from the aspect of modern law, they are in legislation, law enforcement, and judicature. By comparison, the Provost thought that the law came from the experience of ruling the country by the former king, and the legislation took into account the wishes of the people. The law enforcement requires "middle" and "not easy to change the name". The "Taoism Law" emphasizes the "Taoism Law", and the legislation conforms to the "Tao"; The legal thought that the judicature wants to go to the private public is different. They agree to abide by the law, think that in the territorial scope must abide by, can not abandon. From the experience to a rational understanding. Is the depth of legal thinking. From its ideological content and time extrapolated. "Protector" was earlier than "Taoist Law". The "Taoism" and "Taoism" also had an important impact on the legal culture of our country. The understanding of law by Confucianism and Taoism was in the warring States period, even in Qin Dynasty. The Han Dynasty has certain continuity. Especially in the Han Dynasty, Huang Ru had a fierce struggle. Dong Zhongshu, a Confucian student, combined with Huang Lao's thought, put forward the thought of "the Spring and Autumn ruling Prison" and "Autumn and Winter execution" to govern the country by virtue. It opened the era of the confluence of Confucianism and law, and the formation of legal Confucianism was an important feature of ancient law.
【学位授予单位】：上海社会科学院
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D909.2

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