“礼不下庶人，刑不上大夫”新证
发布时间：2018-10-29 18:00
【摘要】：关于“礼不下庶人,刑不上大夫”的含义,学者们的研究较多,但目前尚没有形成统一的说法。本文在各学者研究成果的基础上,提出了自己的见解,认为“礼不下庶人,刑不上大夫”说的是礼有时候可以不施行于庶人,刑可以不施行于大夫,即“礼可以不下庶人,刑可以不上大夫”。 具体而言,本文从礼与情理法之间的关系入手,运用大量史料进行论证,说明在衡量人的具体行为时,如果礼与情相冲突,司法官往往会屈礼伸情,因此考虑到具体的“情”时,有时可以不要求庶人遵循“礼”,所以“礼可以不下庶人”。由西周时期的分封制和宗法制以及“亲亲”、“尊尊”的礼的基本精神所决定,大夫以上的贵族官僚犯法,可以通过“八辟之法”进行决议,从而最终减轻或者免除处罚,所以“刑可以不上大夫”。通过对“礼不下庶人,刑不上大夫”的分析论证,本文进而对中国古代法的性质及其在维护社会秩序中的地位和作用进行了探讨。本文认为,中国古代法具有阶级性和伦理性的特征,在法律适用过程中天理、国法、人情相互为用,并且人情处于优先适用的地位。最后,本文谈及了中国古代社会的情理司法对我们现在法治建设的启示。
[Abstract]:There are many researches on the meaning of "courtesy is not inferior, punishment is not doctor", but at present there is no unified theory. On the basis of the research results of various scholars, this paper puts forward his own opinion, that is, "courtesy is not less than common people, punishment cannot be imposed on doctors", that is, rites can sometimes not be applied to common people, and punishment can not be applied to doctors, that is, "propriety can not be applied to ordinary people." Punishment can be dispensed with by a doctor. " Specifically, this paper starts with the relationship between propriety and reason law, and uses a large amount of historical data to demonstrate that when people's specific behavior is measured, if the etiquette and emotion conflict, the magistrate will often bend the ceremony and extend the feelings. Therefore, when considering the specific "feelings", we can sometimes not ask the common people to follow the "rites", so "rites can not be inferior to the common people." Determined by the basic spirit of the ritual of "kinship" and "respect" during the Western Zhou Dynasty, the noblemen above the doctor and above could make a resolution through the "eight laws of denial", thereby ultimately reducing or exempting the punishment, the basic spirit of the feudal system and the patriarchal system of the Western Zhou Dynasty, as well as the ritual of "respecting one's relatives" and "respecting one's respect". Therefore, "punishment can not be doctor." Through the analysis and argumentation of "courtesy is not inferior to common people, punishment is not superior to doctor", this article further discusses the nature of ancient Chinese law and its position and function in maintaining social order. This paper holds that the ancient Chinese law has the characteristics of class and ethics. In the process of law application, nature, national law and human feelings are used in each other, and human feelings are in the position of priority application. Finally, the article discusses the enlightenment of the Chinese ancient society's rational judicature to our present rule of law construction.
【学位授予单位】：甘肃政法学院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D909.2
本文编号：2298391
[Abstract]:There are many researches on the meaning of "courtesy is not inferior, punishment is not doctor", but at present there is no unified theory. On the basis of the research results of various scholars, this paper puts forward his own opinion, that is, "courtesy is not less than common people, punishment cannot be imposed on doctors", that is, rites can sometimes not be applied to common people, and punishment can not be applied to doctors, that is, "propriety can not be applied to ordinary people." Punishment can be dispensed with by a doctor. " Specifically, this paper starts with the relationship between propriety and reason law, and uses a large amount of historical data to demonstrate that when people's specific behavior is measured, if the etiquette and emotion conflict, the magistrate will often bend the ceremony and extend the feelings. Therefore, when considering the specific "feelings", we can sometimes not ask the common people to follow the "rites", so "rites can not be inferior to the common people." Determined by the basic spirit of the ritual of "kinship" and "respect" during the Western Zhou Dynasty, the noblemen above the doctor and above could make a resolution through the "eight laws of denial", thereby ultimately reducing or exempting the punishment, the basic spirit of the feudal system and the patriarchal system of the Western Zhou Dynasty, as well as the ritual of "respecting one's relatives" and "respecting one's respect". Therefore, "punishment can not be doctor." Through the analysis and argumentation of "courtesy is not inferior to common people, punishment is not superior to doctor", this article further discusses the nature of ancient Chinese law and its position and function in maintaining social order. This paper holds that the ancient Chinese law has the characteristics of class and ethics. In the process of law application, nature, national law and human feelings are used in each other, and human feelings are in the position of priority application. Finally, the article discusses the enlightenment of the Chinese ancient society's rational judicature to our present rule of law construction.
【学位授予单位】：甘肃政法学院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D909.2
【参考文献】
相关期刊论文 前3条
1 胡海滨;刘港;;再论“礼不下庶人,刑不上大夫”[J];邯郸农业高等专科学校学报;2005年03期
2 焦克源;西周法制及其对后世的影响[J];经济与社会发展;2004年11期
3 马小红;;释“礼不下庶人,刑不上大夫”[J];法学研究;1987年02期
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