“律令法”说之再思:以秦汉律令为视点

Rethinking on the Theory of“Law Made of Statute and Ordinance”From the perspective of Qin and Han Statute and Oedinance

目前,“律令法”说在一定程度上已成为中日学者研究唐以前法律形式之变迁的共同理论框架。该说以日本律令制或作为其原型的隋唐律令为标准来衡量唐以前各时期的法律形式的发达程度,其背后隐藏着明显的法典意识。然而,若立足于秦汉时代,其律令的制定或整理方式以及最后的典籍化趋势都是在政治实践中自然而然地产生的。秦汉律令可谓实实在在的行动中的法,是与隋唐律令在功能倾向性上有着明显差异的并列性存在,因此以隋唐律令法典为标准来观察秦汉律令无疑带有以后世律古人的风险,对“律令法”说的反思有助于更准确地揭示古代中国法源史的本相。

Now,to some extent,the theory of“law made of statute and ordinance”has been the common theoretical structure of Chinese and Japanese scholars,when they do research on the evolution of the legal forms before Tang dynasty.To this theory,the institution of statute and ordinance of Japan and its prototype,statute and ordinance of Sui and Tang dynasties,should be standard to access the developing level of the legal forms before Tang dynasty.In fact,there is evident consciousness of code hiding in the theory.However,if viewing from Qin and Han dynasties,we can see that both the way of making and sorting of the statute and ordinance and the tendency of being code of them finally appeared fluently in these two dynasties’political practice.The statute and ordinance of these two dynasties could be thought as real acting law,and were parallel existence of the statute and ordinance of Sui and Tang dynasties,although there were obvious difference in the function between these two types of statute and ordinance.Therefore,making the code of statute and ordinance of Sui and Tang dynasties as standard to observe the statute and ordinance of Qin and Han dynasties undoubtedly has risk of restricting the ancient people by modern eyesight.Farther,rethinking on the theory of“law made of statute and ordinance”can really be beneficial to reveal the original appearance of the history of legal form of ancient China.