女性连坐的社会性别分析:从长沙尚德街东汉简牍的一条律文说起

A Gender Analysis on Women’s Collective Punishment:About a Legal Provision of Bamboo Manuscripts of Eastern Han in Shangde Street in Changsha

长沙尚德街东汉简牍J482“公文”木牍中有“嫁为人妻减死罪一等完城旦”一语,通过比对相关史料,发现两汉在死刑减免以后的处理上有明显的差异,即由以劳役刑(徒刑)为主演变成以迁徙刑为主。此后,次于死刑的刑罚渐由劳役刑演变成流刑,这可以看作是中国传统刑罚制度规范化发展的重要一步。同时,此语也体现了在女性从坐方面,已婚妇女不再以一人之身兼受生父母与夫家两方的株连,而是开始向未婚女子随生父母坐罪、出嫁妇女从夫家连坐的方向发展。当然这是一个历史的进步,但也在法律上固化了女性对丈夫和夫家依附这一观念,标志着女性的权利不再是女性个人独立的权利,而是丈夫和夫家权利的一部分,而对女性个人权利的侵害,往往被认作是对丈夫和夫家权利的侵害。

There is a phrase “The death penalty of a married daughter can be reduced by one degree and is punished as the penalty of Wanchengdan” in the official documents of wooden slips of Eastern Han Bamboo Manuscripts J482 from Shangde Street, Changsha, Hunan Province. By comparing it with the relevant historical materials, we can find that there are obvious differences in the treatment of the death penalty commutation which is from labor penalty to migration penalty in the Western Han and Eastern Han Dynasties. Since then, the penalty inferior to death penalty has gradually changed from labor penalty to migration penalty,and it is regarded as an important step in the standardized development of traditional Chinese penalty system. Meanwhile, it also reflects that in the aspect of women’s collective punishment, married women are no longer suffered from collective punishment due to the connection with original house and husband’s family at the same time, instead they only receive collective punishment due to the fault of their husband’s family and unmarried women’s collective punishment is only connected with their original house.This is a historical progress, but it also solidifies the sense of women’s dependence on their husbands and husbands’ family in law, which indicates that women’s rights are no longer the rights of women’s individual independence, but a part of the rights of husbands and husbands’ family. The violation of women’s individual rights is often regarded as the violation of the rights of their husbands and husbands’ family.