摘要： 瞿同祖提出“法律儒家化”命题时,以晋律“准五服以制罪”为标志。这包含两层基本意义:一是晋泰始律之前的秦汉律令条文与决狱定谳是非儒学性的,尤其是未曾引入五服制;二是泰始律“准五服以制罪”才将刑无等级的法家律令改造为维护等级的儒家律令。通过对东汉时期典型案例“何侍搏姑案”的细致分析,可证汉代已存在以丧服决狱,并且,这一决狱方式颠覆了传统礼俗,使丧服由亲疏程度的表征,被异化为行为规范。于是,礼所原有的双向性原则被摧毁,代之以法的单向性原则。对于以服制入律的准确评价,不是欺骗性的“法律儒家化”,而是“儒学暴力化”。 Abstract:Qu Tongzu's proposition of “Confucianization of laws” was marked by the principle of “incrimination according to the five costumes”in the law system of the Jin Dynasty which includes two basic implications.Firstly,before the Taishi Law(泰始律)of the Jin Dynasty,the provisions of laws and legal judgement and decision of the Qin and Han Dynasties,were not Confucianized,especially for the reason that five costumes system was not yet introduced.Secondly,it was till “incrimination according to the five costumes”in the Taishi Law that laws and decrees of Legalists with their principle of “no rank in penalty”replaced by those of hierarchy-embracing Confucians.With an in-depth analysis of “The Case of He Shi Hitting Her Husband's mother”(何侍搏姑案) which was a typical case in the Eastern Han Dynasty,this essay will prove that the phenomenon of judging a lawsuit according to mourning apparel system already existed in the Han Dynasty.It was a subversion of traditional rituals and rites in the sense that mourning apparel system was alienated into a code of conduct from the representation of family kinship.As a result,the original bilateral effect of rites was destroyed and replaced by the unilateral effect of laws.Therefore,a more accurate comment on this should be how apparel system was adopted by laws is a result of a more violent version of Confucianism,instead of the deceptive “Confucianization of laws”.

中图分类号: 

• K234