秦法治观再考——以秦简所见两种吏道文本为基础

Rethinking on the Rule of Law of Qin Dynasty:Based on the Two Texts about How to be a Qualified Servant Written in the Bamboo of Qin Dynasty

通说认为,秦的法治思想以惟法独尊、重刑轻罪为表征,但收入于已公布的秦简简文中的《为吏之道》、《为吏治官及黔首》等吏道文本所展现出来的法治思想则以法治为基础而兼容各种学派对治道的认识。这些吏道文本很可能是根据共同的官方母本抄写而成的,所以其法治观亦可谓秦国官方法治观的组成部分。若把通说所理解的秦的法治思想称为刚性法治观,则吏道文本所揭示的相关信息可谓柔性法治观。从商鞅变法至秦始皇驾崩,秦对这两种法治观似乎并无绝对的偏向性,而是根据现实环境的差异或此或彼地做出选择,这反映了秦人对法治政略的现实主义态度。

It is popularly said that the characteristics of the legal thought of Qin dynasty can be summarized as focusing just on the law and using abrupt penalty to punish minor crime. But,some published texts written in the bamboo of Qin dynasty,including Weilizhidao,Weilizhiguanjiqianshou etc.,argued how to be a qualified civil servant. The legal thought displayed by them was regarded rule of law as its foundation and assimilated the viewpoints of other schools. These texts were more than likely to be written according to the authorized text,so they could be saw as the component of authorized conception about rule of law of Qin. If the popular understanding on the thought of rule of law in Qin can be summarized as rigid conception of rule of law,the information of the text about how to be a qualified civil servant can be called as soft conception of rule of law. From the reform of Lord Shang to the death of the Frist Emperor,it was seemed that Qin didn＇t exposed its tendency to each conception of rule of law. Rather than that,it frequently changed its choice according to the different actual surroundings,which reflected the realistic attitude of Qin to the political strategy of rule of law.