西周“礼”、“刑”法制文化辨析

Analysing Gift and Punishment from Legal System Culture in the Western Zhou Dynasty

西周的礼是在维护男尊女卑、等级秩序的思想指导下形成的,旨在确认、调整和维护以宗法制度为核心的政权组织关系和伦理社会秩序的规范体系。周礼对西周社会起着法律调节作用,具有法的构成要素:规范性、国家意志性和强制性。西用的礼、刑是一种辩证统一关系,礼是刑的渊源和基础,礼是法的重要组成部分。礼是禁恶于未然的预防,刑是惩恶于已然的制裁。西用礼刑法律原则的适用,旨在维护等级秩序、强调官僚贵族与平民的不平等的社会现实。

Gift of the Western Zhou Dynasty is formed under the thought that men enjoy higher status than women social estate system of ethics civil order. Its aim is to affirm, adjust and safeguard normalized system regarded regime membership credentials and ethics civil order as the core. Gift of Zhou Dynasty plays the legal regulating action to national willing and mandatory. Gift and punishment of the Western Zhou Dynasty is a kind of dialectical unified relation. Gift is the origin and foundation of punishment. Gift prohibits evil but has no right. Punishment is the sanction having no right to punish evil. Legal principle of gift and punishment in the Western Zhou Dynasty aims at maintaining the grade order, emphasizing the social reality of unequality between bureaucrat's noble and common people.