足食足兵与不忍之心:清律中的盗与宰杀马牛

Enough Food and Sufficient Army and the Heart of Compassion: the Theft and Slaughter of Horses and Cattle in the Qing Code

马牛等畜产是我国古代国家足食与足兵的保障,历代律典及实践均严禁对其之盗或杀伤等伤害行为,而近代以降的相关规则、理论虽已发生巨大变迁,但仍不乏古今相通之处。清律盗马牛畜产者并计赃值以窃盗或常人盗论,其在窃盗、常人盗之外单独成律的原因在于同时受到唐宋与元之两端的影响。宰杀马牛律禁止宰杀的畜产包括他人所有的与自己所有的,其立法的着眼点并非“所有权”。盗与宰杀马牛等畜产的行为对象一致,但古今各时期对二者的处罚轻重不等,此缘于不同时期对两种行为之罪恶程度、一般预防必要性等多重因素的不同考量。为实现“足食足兵”的目标,以清律为代表的传统律典及实践对马牛等畜产的保护,在表面上是对牲畜的“不忍之心”,实则体现出对人自己的“不忍”。

Horse and cattle and other livestock production is the guarantee for providing enough food and ensure sufficient army in ancient China, thus laws, regulations and practices in reality all strictly prohibited theft, killing and other harmful activities upon livestock.Although the relevant rules and theories have undergone significant changes since modern history, there remain some similarities. Theft of horses and cattle would be calculated and punished, while the separate rules and regulations on it apart from common theft is due to influences from Tang Song and Yuan dynasties. The law of banning the slaughter of horse and cattle includes those owned by others and those by their own, and thus focus of the legislation is not on “ownership” of the livestock at all.The theft and the slaughter of horses and cattle are consistent in objects, but the punishment is different in different periods, which is due to the different considerations of multiple factors such as the degree of evil of the two behaviors and the necessity of general prevention in different periods.In order to achieve the goal of “enough food and sufficient army”, the protection of the traditional laws and practices represented by the Qing Code and practices upon protecting horses and cattle, is superficially “compassion” towards livestock, but in fact, it reflects the “self-protection” towards human being themselves.