思想史视野下的汉晋之际肉刑存废之争议

发布时间：2019-03-24 21:36

【摘要】：从古至今,对于“肉刑”的定义众说纷纭。广义的肉刑包括切割肢体、割裂肌肤和捶击身体的刑罚,以及替代刑等与其相关的所有刑罚;狭义的“肉刑”包括四种:黥、劓、刖、宫。肉刑之始究竟源于何时,现在虽已无可考,但考察现存史料,可追溯到黄帝时代。秦及汉初,沿用周制。秦时,严刑峻罚,且刑罚分类愈加详细,肉刑种类繁多。汉承秦制,肉刑与秦时同。汉末到魏晋,政局的变化引起刑罚制度的改变,其中肉刑的存废问题经过了大大小小多次讨论,特别是从汉末到魏晋这段时间的争论,时间跨度之大、参与人数之多、波及范围之广、影响之深远,实属空前。在长达近四个世纪的时段中,对于肉刑存废问题有过大大小小多达九次的讨论。讨论双方互陈利弊,各持一端:或相同论据不同论点,或不同论据相同论点……废除肉刑的主张逐渐占据上风,但最后结果都是不了了之。各朝讨论的结果也未真正的落实于司法实践之中,只停留在思想的层面。因此,汉晋之际对于肉刑的存废讨论,既是中国古代政治史、法律史上的一个不容忽视的问题,同时亦是思想史上值得重视和研究的内容。汉晋之际关于肉刑存废的讨论,反映出所发议论者的思想观念和价值取向。具体而言,反映出儒家“法先王”取向;“霸王道杂之”的执法主张:德教为先的儒家思想和德主刑辅的运思路径等。同时,肉刑存废之议也反映出在那个年代中人们对于生与死这组矛盾的思考,折射出时人的生命观、价值观。因此通过对“肉刑”的微观考察,可以以小见大、以点带面,进而有助于把握汉晋之际思想史发展的脉络,并掘发其中深义。
[Abstract]:From ancient times until now, the definition of "corporal punishment" varies. In the broad sense, corporal punishment includes the punishment of cutting limbs, severing skin and beating the body, as well as all penalties associated with it, such as alternative punishment, while the narrow term of "corporal punishment" includes four kinds: tattoos, shanks, palaces and so on. Although it is no longer possible to examine the origin of corporal punishment, the present historical data can be traced back to the Yellow Emperor. Qin and the early Han Dynasty, followed the Zhou system. Qin Dynasty, severe punishment, and more detailed classification of penalties, various types of corporal punishment. The Han Dynasty inherited the Qin system, and the corporal punishment was the same as that of the Qin Dynasty. From the end of the Han Dynasty to the Wei and Jin dynasties, the change of the political situation caused the change of the penalty system, in which the question of the existence and abolition of the corporal punishment was discussed many times, especially during the period from the end of the Han Dynasty to the Wei and Jin dynasties, the time span was large and the number of participants was large. The scope of the spread, the far-reaching impact, is unprecedented. In the last four centuries, there have been as many as nine discussions on the question of the existence or abolition of corporal punishment. Discuss the pros and cons of each side: the same argument, or the same argument. The idea of abolishing corporal punishment gradually gained the upper hand, but it all ended up in vain. The outcome of the discussions was not really carried out in judicial practice, but only on the ideological level. Therefore, the discussion on the existence and abolishment of corporal punishment in the Han and Jin dynasties is not only an important issue in the history of politics and law in ancient China, but also a content worthy of attention and study in the history of thought. The discussion on the abolition of corporal punishment in the Han and Jin dynasties reflects the thought and value orientation of the commentators. Specifically, it reflects the Confucian orientation of "the forerunner of law", the idea of "overbearing the rule of justice", the Confucian thought that morality and education is the first, and the way of thinking that virtue-oriented punishment is supplemented by punishment, and so on. At the same time, the discussion on the existence and abolishment of corporal punishment also reflects people's thinking about the contradiction between life and death in that era, and reflects the view of life and values of people at that time. Therefore, through the micro-examination of the "flesh punishment", we can see the whole through a small part, so as to help grasp the development of the ideological history of Han and Jin dynasties, and dig out the deep meaning of it.
【学位授予单位】：重庆师范大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D929;D924

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