《商君书》刑罚思想新探

The Penal Thoughts in The Book of Lord Shang: A New Perspective

先秦典籍《商君书》蕴含着丰富的刑罚思想,其中最为突出的是赏、刑、教三位一体,综合施治,做到明赏、明刑、明教相互联动,追求无赏、无刑、无教的自治社会。其刑罚思想是一种施政措施,表现在政教观、赏刑观和刑罚观之中。在治理方法上倡导“兴国用赏罚”,提出重刑罚、轻奖赏的赏刑观;在具体适用上刑罚与奖赏有层次、重尺度。刑罚的目的追求“以刑去刑”,区分现实刑与预防刑,最终达致“重轻,则刑去事成”的社会效果。在社会管理上利用激励机制,主张“治民避乱”的治理效果。《商君书》刑罚思想是先秦法家法治主义思想的具体化,其现代价值在于重新审视重刑主义的历史客观性,揭示集体法律责任中西文化的契合,以及预防犯罪的社会管理功能。

The pre-Qin classic The Book of Lord Shang contains rich penal thoughts, especially the thoughts on the combination of rewards, penalties and teachings to achieve a comprehensive governance, which aims at clearly defining rewards, penalties and teachings, and pursuing an autonomous society without rewards, penalties or teachings. The penal thoughts of The Book of Lord Shang can be regarded as a kind of governing policy, which is reflected in its view on politics and teachings, on rewards and penalties, and on penalties. The Book of Lord Shang proposes the method of “using rewards and penalties to regenerate a state,” and the view on penalties and rewards which emphasizes penalties more than rewards, for which it has set out a hierarchical implementation system with a variety of scales. According to The Book of Lord Shang, the aim of the penalties is “to use penalties to eradicate penalties,” and that actual penalties and preventive penalties should be differentiated, so that the social results of “punishing minor crimes with severe punishments to achieve that no punishment exists but things function well” can be realized. The Book of Lord Shang suggests to use motivation mechanism to govern the society to achieve “governing commoners and avoiding chaos.” The penal thoughts in The Book of Lord Shang reflects the ideas of the rule of law held by the legalism doctrine in the pre-Qin era. In contemporary society, its value lies in the perspective it proposes from which we could review the historical objectivity of its doctrine of severe punishment, the overlap of Chinese and western collective responsibility, and the social governing function of preventing crimes.