八议成制于汉论考

Bayi: An Ancient Legal Rule Made in the Han Dynasty

法律史学界通说认为八议制度始于曹魏。但经深入挖掘、分析史料后可以发现:从周之八辟到汉之八议的名称变化,表明了一种新的法律制度在汉代萌生;在两汉法律遗存中能够寻找到八议的大部分内容;在汉代司法活动中,八议也已成为断案议罪必须遵循的法律准据。以此可证,八议制度的确立时间当在汉代。

Bayi, as a legal rule in ancient China, has conventionally been believed to be primarily made in the period of Cao-Wei. The author of this paper concludes that Bayi was made systematically early in the Han dynasty. First of all, although the rule of Bapi had been established in the Zhou dynasty, it was abolished in the Spring and Warring times when the new force strongly demanded the legal privileges exclusively owned by the former aristocratic class be abolished. It was in the early Han dynasty that Bayi was resumed as a frequently quoted legal concept. In the second place, from the legal heritage handed down from the Western and Eastern Han dynasties, we can find most of the essential constituents of Bayi. According to the rule of Bayi, when eight kinds of person committed a crime, the punishment should be decided after argument, so as to give them special lenience. Furthermore, form the ancient classics like July and the History of the Han Dynasty, and the interpretation of Confucius classics by citing legal regulations by ancient classicists, we can find the specific scope of the eight kinds of person and how to reduce penalty for them. The last point is that the judicial practice in the Han dynasty had conventionally taken Bayi as a legal basis for the conviction and measurement of penalty.