再論流刑在北魏的成立——北族因素與經典比附

A Restudy on the Establishment of Liuxing in the Northern Wei Dynasty:the Inner Asian Factors and the Embellishment from Confucian Classics

由於忽視北朝政權的特殊性,既有研究未能就流刑何以成立的問題提供滿意的答案。本文在華夏與內亞兩種傳統遭遇、碰撞、融合的背景下重新審視流刑入律的過程,指出流刑實爲北族習慣法與儒學觀念表裏結合的產物。內亞草原上存在過一套不同於漢魏刑制的流放刑傳統,匈奴、烏桓、突厥、蒙古等都曾沉浸其中。北魏前期推行的流徙之刑,就是由拓跋鮮卑帶入中原的北族習俗。太安年間源賀的上書,既拓展了流徙刑的施用範圍,又將這一部族刑制比附爲《尚書》所載之"流",爲其融入華夏典制提供了可能。在太和年間以律爲治的法制改革中,廣泛運用且被認爲與經典相符的流徙,始以"流刑"的面目被列爲法定正刑。爲營造取法聖人之制的形象,北朝隋唐歷次修律都將流刑包裝成上古之"流"的繼承者,其內亞淵源遂被掩蓋和遺忘。

Due to neglect the particularity of the Northern Dynasties,existing research failed to provide satisfactory interpretation to the emergence of Liuxing(流刑)in this era.This article makes a new study on the establishment of Liuxing under the background of the encounter,clash,and reconciliation of the two traditions of Inner Asia and China.Compared with the Han and Wei Dynasties,Inner Aisa had a different tradition of exile,which was shared by Xiongnu,Wuhuan,Tujue,Mongol,etc.The banishment conducted by the regime during the early stage of the Northern Wei,was derived from the northern ethnic customs.Yuan He’s suggestion in the Taian period expanded the application scope of this penalty,and embellished it with classical institutions recorded in Shang Shu,which made it possible to integrate into the Chinese legal system.In the legal reform promoted by Emperor Xiaowen,banishment was written into law as a formal penalty in the name of"Liuxing".In order to create an image of reviving the classical institutions,law revision activities during the Wei,Zhou,Sui,and Tang dynasties kept reshaping the origin and development of Liuxing,and hence,its connection with Inner Asia was concealed and forgot.