汉唐“匿哀”等罪研究

发布时间：2018-04-30 14:20

本文选题：匿哀 + 释服从吉　；参考：《南开大学》2012年博士论文

【摘要】：《唐律疏议》中“匿哀”、“释服从吉”、“冒哀求仕”、“冒荣居官”等条文，虽内容各异，刑罚也不尽相同，但大体是对违反“孝”德的惩罚。而且，这几项条文所维护的并非亲人在世时的“孝”，而是去世之后的“孝”，即依礼奔丧、居丧合礼、任官避家讳等行为。生前与死后之“孝”虽同为伦理道德，但意义并不相同，前者反映的更多是现实生活的需要，而后者的意义则超出了日常生活的范围。由于材料、研究视角的局限，以往成果对“匿哀”等罪的研究相对薄弱，尤其是对生前之“孝”与死后之“孝”往往不加区分，本文从死后之“孝”的意义入手，探究“匿哀”等罪的发展脉络及其法律化的过程。奔丧、居丧皆属广义之丧礼。儒家的丧祭之礼，从感情上说是在节制悲痛；从社会意义上说，则是在借助礼仪等差来重新安排宗族之内的等级秩序。历史上宗族形式的变迁对于死后之“孝”的实施情况有着根本的影响。再者，官员长期居丧会对朝廷的政务运作带来较大影响。所以，朝廷如何安排要求居丧的官员，还反映了不同时期的君臣关系。因而，在“匿哀”等罪的产生、发展、形成过程中，宗族形态与君臣关系是贯穿其中的两条线索，本文即以此为视角来考察“匿哀”等行为从“礼”到“法”的转变过程。具体问题包括：第一，“匿哀”与“释服从吉”罪所指向的行为是不举哀和居丧违礼，二者的意义和宗族组织联系紧密。举哀、居丧在西周宗法制下是丧主特权，有着显示继承权的意义。在这种环境下，非但不会产生不举哀、居丧违礼的现象，反而会有争相举哀争夺丧主地位之举。宗法制崩溃以后，丧礼虚仪化，才出现“匿哀”、“释服从吉”等社会现象。秦汉王朝的法律与制度“重生不重死”，对举哀、居丧没有硬性规定，但又和当时重孝的意识形态是背离的，尤其不适应社会上世家大族逐渐兴起的趋势。魏晋南北朝举哀、居丧之制紊乱无序，正反映了士族门阀在“礼”、“制”、“法”上的强势。隋唐在礼、法、制上全面将举哀、居丧纳入规范有序的轨道。第二，“冒哀求仕”罪指向的行为是服丧期间求官。君臣关系是这个问题的主导。礼制中居丧期间出仕的原则为“丧不二事”和“金革之事无辟”，但此二原则的背景是“封邦建国”之下的分权体制。两汉王朝，最初行短丧之制，东汉中后期逐渐允许低级官员离职居丧，但大臣居丧一直无定制。与短丧制度相对应，秦汉王朝对离职居丧官员的利益保障并不完善，反映了这个时期制度的“霸道”本色。魏晋南北朝时期逐渐形成了稳定的终丧之制，对不服丧而求官的现象也有着严厉的惩罚。与之相对应，这个时期门阀制度逐渐形成，在“人品”系于“官品”的制度保障下，居丧行为受到鼓励，“哀毁”等孝义之举屡见不鲜，士族居丧非但不会影响其仕途和最终官品，反而可能增加其声誉。隋唐时期矫正前代弊端，主要依靠日趋完善的制度和法律来规范官员的服丧行为。第三，“冒荣居官”罪指向的行为是任官不避家讳。一方面，出于维护君权的尊严，家讳被限制于私人场合；另一方面，出于维护“孝”这一伦理，当家讳与官名发生冲突时，允许官员回避，此矛盾推动了任官避家讳问题的发展。关于任官避家讳的讨论发端于西晋，兴盛于南北朝。这个时期的特点是缺乏一定之规，或虽有规定但不断被突破，反映了这个时期门阀士族的势力兴盛。入唐以后，任官避家讳逐渐制度化，是维护皇权与尊重大臣家讳两种趋势平衡与妥协的结果，南北朝以来避家讳无序的状况得以改观。但门阀士族在唐朝的社会影响依然很大，滥避家讳的风气依然浓厚，《唐律疏议》“冒荣居之”条的执行情况也大打折扣。《宋刑统》中虽然全盘继承了《唐律疏议》的内容，但其在法典编纂方式上采取了新的分门别类的形式，编排形式的背后反映了深厚的社会转型，整个宋代不断对任官避家讳做出调整，力求符合新的社会和政治形势。透过“匿哀”等罪的考察，，还可以看出历史上“家礼”与“国法”间的冲突与博弈。先秦时代，宗族既是社会的基本单位，也是政治组织，宗族秩序同时也是政治秩序，“国法”和“家礼”是相统一的。秦汉王朝，在法家思想下形成的政治组织摒弃了宗法、封建等旧秩序，力图建立职业官僚体系和“编户齐民”的社会制度。在此背景下，作为宗族秩序的“家礼”让位于“国法”，成为全社会的主要规范。不过，先秦之礼经过汉儒理想化的改造后，逐渐成为朝廷所标榜的意识形态；豪族的崛起也打破了“编户齐民”的局面，这就造成汉代制度与社会及意识形态的背离。南北朝的世族门阀享有诸多特权，“家礼”有凌驾于“国法”之势，不过这是以降低行政效率，贬低皇权为代价的，无法形成常态。隋唐矫正前代弊端，折衷“家礼”与“国法”，既在政治制度中部分吸收宗族秩序，又将其限制在皇权可控制的范围内，是“法”与“礼”融会之大成。
[Abstract]:It is not the punishment of "filial piety", but it is not the "filial piety", but the "filial piety" after the death of the relatives, but the death of the "filial piety" after the death, that is to say, funeral and bereavement. The former and post death "filial piety" is ethical, but the meaning is not the same, the former reflects the need of real life, and the meaning of the latter is beyond the scope of daily life. Because of the material, the limitations of the research perspective, the previous achievements are relatively weak in the study of "hiding the mourning" and so on. It does not distinguish between the "filial piety" and the "filial piety" after death. This article, starting with the meaning of "filial piety" after death, explores the development and legal process of the crime of "hiding the mourning" and so on.
Bereavement and bereavement belong to a broad funeral. The Confucian funeral rites are emotionally abstinence and grief; from the social point of view, the rank order within the clan is rearranged with the aid of etiquette. The change of the clan form in history has a fundamental influence on the implementation of the "filial piety" after death. Bereavement has a great influence on the government operation of the court. Therefore, the government of the court how to arrange for the funeral officials also reflects the relationship between the monarchy and the minister in different periods. Therefore, in the process of the emergence, development and formation of the crime of "hiding the mourning", the relationship between the patriarchal clan and the monarchy is the two clue. The specific problems include: "courtesy" to "law".
First, the act of "hiding mourning" and "obedience to Kyrgyzstan" is the act of no mourning and mourning. The meaning of the two is closely connected with the clan organization. Mourning is the privilege of bereavement under the legal system of the West Zhou Zong, and the significance of showing the right of inheritance. In this environment, it will not produce no mourning, but the phenomenon of funeral and disobedience will be contended. After the collapse of the patriarchal law, after the collapse of the patriarchal legal system, the funeral rites became empty, and the social phenomena such as "hiding the mourning" and "obedience to Ji" were appeared. The law and system of the Qin and Han Dynasties were "reborn and not dead", and there were no hard provisions for mourning and mourning. In the Wei, Jin, and the northern and Southern Dynasties, the mourning of the northern and Southern Dynasties was disorderly and disorderly, which reflected the strength of the clan gate valve in the "ceremony", "system" and "law". The Sui and Tang Dynasties will fully mourn in the ceremony, law and system, and the funeral of the Sui and Tang Dynasties will be brought into the standard and orderly track.
Second, the act of "asking for an official to seek an official" is to seek an official during the period of mourning. The relationship between the emperor and his minister is the leading part of this problem. The principle of "bereavement" during the funeral ceremony is "bereavement" and "nothing of gold", but the background of the two principles is the system of Decentralization under the founding of the state. In the later period, the lower officials were gradually allowed to leave in mourning, but the minister's bereavement had not been custom-made. Relative to the short bereavement system, the interests of the officials in the Qin and Han Dynasties were not perfect, reflecting the "hegemony" nature of the system. The period of the Wei, Jin and the northern and Southern Dynasties gradually formed a stable end funeral system and the phenomenon of seeking officials for not being mourned. There was also severe punishment. In contrast, the door and valve system was gradually formed in this period. Under the system of "people" in the system of "official goods", the funeral behavior was encouraged and the "mourning" was common in Xiaoyi. The bereavement of the Shans would not affect its official career and final official goods, but could increase its reputation. The malpractice mainly relies on the increasingly perfect system and law to regulate the mourning behavior of officials.
Third, the act of pointing to the crime of "taking honor and residence" is a taboo for the officials to avoid the family. On the one hand, in order to maintain the dignity of the monarchy, the family taboo is restricted to private occasions; on the other hand, in order to safeguard the ethics of "filial piety", when the family is taboo against the official name, it allows officials to avoid the development. The discussion of avoiding family taboo originated in the Western Jin Dynasty and flourished in the north and South Dynasties. The characteristic of this period is the lack of a fixed rule, or although it has been constantly broken through, reflecting the flourishing of the clan's forces in this period. After the Tang Dynasty, the officials avoided the family taboo gradually and institutionalized the results of the balance and compromise of the two kinds of tendencies to safeguard the imperial power and the great ministers, South. Since the Northern Dynasty, the situation of avoiding disordering in the family was changed. However, the social influence of the men's family was still very large in the Tang Dynasty, and the customs of avoiding the family were still strong. The new forms of classification and the form of the arrangement reflect the profound social transformation, and the Song Dynasty constantly adjusts the taboo of the officials to avoid the family, striving to conform to the new social and political situation.
Through the investigation of the crime of "hiding the mourning" and other crimes, we can also see the conflict and game between the "family ritual" and the "national law" in history. In the pre Qin period, the clan was both the basic unit of the society, the political organization, the clan order and the political order, and the "national law" and the "family ritual". The Qin and Han Dynasties, formed under the ideology of the Legalists, were the politics of the Qin and Han Dynasties. The organization abandoned the patriarchal, feudal and other old order, and tried to establish the social system of the professional bureaucracy and the "household of the household". In this context, the "family gift", as a clan order, was located in the "state law" and became the main norm of the whole society. However, after the transformation of the Chinese Confucianism, the ceremony of the pre Qin Dynasty gradually became the consciousness of the court. The rise of the ethnic group has also broken the situation of "making household and Qi people", which makes the system of the Han Dynasty deviate from the society and ideology. The family gate of the northern and Southern Dynasties enjoys a lot of privileges, and the family ritual is overriding the "state law", but this is at the expense of reducing administrative efficiency and degrading the imperial power. It can not form a normal state. The Sui and Tang Dynasties are unable to form a normal state. The disadvantages of the former generation, the compromise of the "family gift" and the "national law", not only partly absorb the order of the clan in the political system, but also limit it to the controllable scope of the imperial power, which is the integration of "law" and "rite".

【学位授予单位】：南开大学
【学位级别】：博士
【学位授予年份】：2012
【分类号】：D929;K234;K24

【参考文献】