百年回顾:出土法律文献与秦汉令研究

A Study of Unearthed legal Literature and Qin-Han Ling

令作为中国古代法律重要的法源形式之一,自中国法制史研究之始即为学者关注。以沈家本、程树德为代表的早期辑佚复原、考证研究,开启了秦汉令的研究领域,为秦汉律令体系的构建奠定了基础。此后中田薰又将汉令研究推向一个新阶段。百年来出土简牍的不断问世,丰富了秦汉令的资料来源,人们对汉令的形式、结构、性质及令的分化、律令转化、令的立法程序予以全面探讨,成果迭见,秦汉令研究呈现一个新局面。但由于对出土文献的认识及基本概念的解析各不相同,有关秦汉时有无令典,挈令的形态究竟如何,干支令、挈令、事项令的关系如何,令分甲乙丙的标准为何,对秦汉令的法律地位应当如何判断,如何定位它在中国法律史发展过程的作用,仍有待新资料的披露及研究的进一步深入。

As one of the most important statutes in ancient China, Ling has been paid attention to by many scholars since research on the history of the Chinese legal system started. The collection, recovery and textual research by Shen Jiaben and Cheng Shude commenced the research field of Ling in both Qin Dynasty ＆ Han Dynasty and laid the foundation for the structure of the legal system of the Qin and Han period. Afterwards, Nakata Kaoru pushed the research on Ling in the Han Dynasty to a new stage. As frequent appearance of the Bamboo and Wood Slips in the last 100 years had enriched the sources of historical materials, relevant researchers had made comprehensive inquiries into the form, structure, character, split - up, legislative procedures of Ling, and the transformation between Lǖ and Ling in the Han Dynasty. As a result, the research on Ling in the Qin - Han period took on a new look. But as there are different opinions on the unearthed literature and various explanations of the basic concepts, there are many problems to be solved in the light of new historical materials. For example, was there the statute of Ling in the Qin - Han period？ What form did Qie Ling assume？ What relationship existed among Can Zhi Ling, Qie Ling（挈令） and Shi Xiang Ling（事项令） ？ What standards were used to divide Ling into three parts called Ling Jia（令甲）, Ling Yi（令乙）, and Ling Bing（令丙）？ How to estimate the legal status of Ling in Qin Dynasty and Han Dynasty？ How to summarize its role in the development of the legal history in ancient China？ All these issues are to be studied further.