中国古代成文法起源探讨--兼论王权与神权之冲突和妥协

Exploration of the Origin of Ancient Chinese Written Laws--On the Conflict and Compromise Between Royal and Divine Powers

梁启超将是否“成文”作为成文法与习惯法的区别,是对西方成文法概念的误读。依据成文法、习惯法的相关定义,二者的区别在于法律效力的产生方式,由此战国时期的“铸刑书”“铸刑鼎”“造竹刑”等不能算作是成文法。盘庚在迁都过程中试图改变殷商早期所延续的习惯法,因而至少在盘庚时期便出现了成文法的萌芽。成文法的产生是王权不断扩大的结果,这一过程并不是取代习惯法的过程,习惯法依旧在国家治理过程中发挥着不可替代的作用。

Liang Qichao’s misunderstanding of the concept of“written law”as the difference between written law and customary law is a misunderstanding of the Western concept of written law.According to the relevant definitions of written law and customary law,the difference between the two lies in the way in which legal effect is generated.Therefore,during the Warring States period,“cast punishment books”“cast punishment tripods”and“bamboo punishment”,etc.cannot be considered as written law.During the process of relocating the capital,Pangeng attempted to change the customary laws that were continued in the early Shang Dynasty,so at least during the Pangeng period,the emergence of written laws began.The emergence of written law is the result of the continuous expansion of royal power,and this process is not a replacement for customary law.Habitual law still plays an irreplaceable role in the process of national governance.