前期桐城派法律思想研究

发布时间：2018-08-21 11:46

【摘要】：桐城派是清代文学史上存在时间最长、流传地域最广、人数最多、影响最深的散文流派。对于桐城派的文学遗产，人们历来多有研究，但桐城派的其它文化遗产也值得我们去发掘，法律思想就是其中之一。明末清初的启蒙思想以及清末变革时期的法律思想，一直是清代法律思想研究的重点。相比之下，鸦片战争前一百五十多年间的法律思想的研究显得较为薄弱。从桐城派初起至姚门弟子这一阶段，正好处于这一时期，为表达便利，本文将其称为前期桐城派。通过对他们的法律思想的研究，有助于弥补这一不足。以儒家思想为指导的古代中国是礼法共治的社会，这种共治所要调整的核心内容是君臣、父子、夫妇、长幼、朋友五伦关系。程朱理学不仅赋予这些儒家伦常以天理的权威，更是通过对《四书》的强调，将礼、法与教育体制紧密结合起来，形成了非常严密的礼教体系。士人从小耳濡目染的是《大学》倡导的修齐治平之道，钻研的是礼、乐、政、刑等治人之法。他们学习的目的是内以修身，，成圣成贤；外以治人，齐家治国平天下。前期桐城派坚信程、朱深得先王之道的旨趣，毫不动摇地坚持程朱理学的指导地位。前期桐城派相信儒家的伦理纲常是天理的体现，人秉天地之气而生，人性本善，恶源于后天，因此他们崇尚礼教。虽然向往先王之制，但前期桐城派都清醒地认识到社会总是不断发展变化的，礼法必定要随情势的变迁而适当地予以损益。在刑法的适用上，前期桐城派主张宽猛相济，明刑弼教；在案件审理方面，他们重视情理，提倡原情定罪；法久必弊，他们还认为应当及时地兴利除弊，以使法制更好地保障民生。科举制度从国家来说是选拔治国人才的手段，从个人来说，是实现由修己到治人转变的途径。强调为政在人的前期桐城派激烈地批判选举制度的积弊，积极寻求改革之法，希望能为国家选拔出急需的有用之才。前期桐城派笃信程朱理学，规定自己只能在程、朱开创的领域内做些修补的工作，这使得他们的法律思想从总体上看未能突破理学的樊篱。不过，在当时的情况下，尤其是与汉学相比，秉承清初经世遗风的前期桐城派重视教化、强调人情、追求合“理”的秩序，他们的礼法思想有其合理性，发挥了一定的积极作用。
[Abstract]:Tongcheng School is the most influential prose school in the history of Qing Dynasty. People have always studied the literary heritage of Tongcheng School, but the other cultural heritage of Tongcheng School is worth exploring, legal thought is one of them. The enlightenment thought in the late Ming Dynasty and the law thought in the late Qing Dynasty was always the focus of the legal thought research in the Qing Dynasty. By contrast, more than 150 years before the Opium War, the study of legal thought was relatively weak. From the beginning of Tongcheng School to the stage of Yao Men disciple, it is in this period. Through the study of their legal thought, it helps to make up for this deficiency. Under the guidance of Confucianism, ancient China is a society governed by etiquette and law. The core content of this co-rule is the relationship between monarch, father and son, husband and wife, long and young, and friends. The Neo-Confucianism of Cheng and Zhu not only endowed these Confucian families with the authority of heaven, but also formed a very strict system of etiquette and education by emphasizing the "four Books" and closely combining the propriety, law and educational system. Scholars are the "University" advocated by the "Qi Zhi Ping", the study is ritual, music, politics, punishment and other methods of governing people. The purpose of their study is to cultivate and become saints and saints. The early Tongcheng School firmly believed in Cheng, Zhu Shen the purport of the first king, unswervingly adhere to the guiding position of Neo-Confucianism. In the early period, Tongcheng School believed that Confucian ethics was the embodiment of heaven and earth, that people lived with the spirit of heaven and earth, that human nature was originally good and evil originated from the day after tomorrow, so they advocated etiquette. Although yearning for the system of the first king, the early Tongcheng school clearly realized that the society is always developing and changing, and the etiquette and law must be properly profit and loss with the change of the situation. In the application of the criminal law, the Tongcheng School in the early period advocated leniency and fierce punishment, and the Bishi religion; in the trial of cases, they attached importance to reason and advocated the conviction of the original situation; they also believed that they should do beneficial things in time to remove the malpractices. In order to make the legal system better protect the people's livelihood. The imperial examination system is a means of selecting talents for governing the country, and a way to realize the transformation from self-cultivation to governing people. It is emphasized that the Tongcheng School in the early days of the people's government vehemently criticizes the old disadvantages of the electoral system and actively seeks for the law of reform in the hope that it can select the needed useful talents for the country. The early Tongcheng School believed in Cheng and Zhu Neo-Confucianism and stipulated that they could only do some mending work in the field initiated by Cheng Zhu which made their legal thoughts fail to break through the barriers of Neo-Confucianism on the whole. However, under the circumstances at that time, especially compared with Sinology, the early Tongcheng School attached importance to education, emphasized human feelings, and pursued the order of conformity with "reason", and their thought of etiquette and law had its reasonableness. Played a certain positive role.
【学位授予单位】：湘潭大学
【学位级别】：博士
【学位授予年份】：2013
【分类号】：D909.2

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