经与权:中国中古时期继母杀子的法律规制

Following classics or being adapted to circumstances: The legislation on stepmother killing stepchild in the middle ancient times of China

以"身份法"著称的中国传统法律对继母杀子应当如何处理的问题向来予以高度关注和详细规制,而这项法律在中古时期经历了重构与变迁的历程。经义决狱将"继母如母"的礼经规定引入法律实践,使拟制血亲与血亲的等同视之在法律上初现端倪。晋代继母及亲母杀子都会被处死;唐律则基本实现了"遵经",即继母杀子享有与亲母相去无多的宽免,出嫁继母、被出继母则因关系疏远而被加重刑责;北宋又以"继假之隙"为由对继母杀子科以与亲母相异的处罚。这种变迁是思想潮流与家庭结构相互影响的结果,充分体现了法律在遵从经义与因时权变之间的动态平衡,为再次检视"法律儒家化"概念提供了新的视角。

Famous for its identity-based rules, Chinese traditional law had always paid attention to how to deal with the problem that the stepmother killed her stepchild. And such legislation experienced the process of reconstitution and changes in the middle ancient times of China. Adjudicating cases by Confucian classics introduced into legal practice the canon that “the identity of the stepmother is just like the mother,” making the fictional blood kinship equivalent to blood kinship in law. In Jin Dynasty, the stepmother as well as the mother would be sentenced to death if she killed her child. The legislation in Tang Dynasty followed Confucian classics that the stepmother enjoyed privileges almost the same as the mother in the case of killing the child, and the stepmother who got remarried or divorced would be held more heavily responsible for their more distant relationship. In Northern Song Dynasty, the penalties were different between the stepmother and the mother for “the estrangement between the stepmother and the stepchild.” These changes resulted from the interaction of ideological trend and family structure, and embodied the legal balance between “following classics” and “being adapted to circumstances,” providing a new perspective to examine the concept of “legal confucianization.”.