《吕刑》“德刑”思想钩沉

The excavation of the"Morality-Penalty"thought in The Penalties of Marquis Lü

《尚书·吕刑》主旨,《书序》说是吕侯为穆王训夏赎刑,然全篇并无夏朝痕迹,所记为从蚩尤、三苗、伯夷以来,社会从暴政走向刑法、德刑的大脉络,当属周人所述先秦司法史。篇名犹言“吕侯说刑”,前半篇论刑之渊起,揭示三苗“德刑”之伪。后半篇论如何建设真德刑,涉及德之缘起、学理、结构、价值等大本大原问题,以及审案程序、疑赦从宽、典狱守则等操作规范,足见周人德刑思想的体系已在理论与制度层面上成立,其深意则是为刑安装“准星”,使之能精准除恶,故反复论德,而未渲染如何用刑。《吕刑》所谓德刑,并非儒家之德与法家之刑的简单相加,而是“德之刑”,犹同篇所言“祥刑”。各国皆有刑,而以德字加诸刑字之上,强调刑必须在德的指导下使用,则为中国传统司法文化所特有。

According to the preface to The Book of History,the main theme of The Penalties of Marquis Lüis that the Marquis of Lüexplained the penalty of atonement of the Xia Dynasty to King Mu.However,there are no traces or records of the Xia Dynasty in this entire chapter,and what is recorded is the general lineage of society from tyranny to penalties and the morality-penalties since Chi You,the people of Miao,and Bo-yi,which is said to be the judicial history of Pre-Qin Period narrated by the people of the Zhou dynasty.This chapter can also be entitled Marquis Lü's Expounding on Penalties,with its former part focusing on the origins of the penalty and disclosing the falsity of the morality-penalty by the people of Miao,and its latter part discussing how to construct the true morality-penalty,including the origin,the doctrine,the structure,the value,and other original issues of morality,as well as operational practices such as trial procedures,leniency in doubtful cases and the rules to be followed by those who administer the punishment.It can be clearly seen that at the theoretical and institutional levels,the thought system of morality-penalty had been established in Zhou dynasty,and the deep meaning of the chapter is to install a"sight"for the penalty,so that it can accurately eliminate evil.That is why the morality is repeatedly discussed,while the application of penalties is not elaborated.The morality-penalty as described in The Penalties of Marquis Lüis not merely a simple combination of Confucian morality and Legalist penalties,but“the Morality Penalty,”the same as"the Penalty of Goodness"stated in the same chapter.There are penalties in all countries,but placing the“morality”before the“penalty”and emphasizing that penalties must be applied under the guidance of morality is a unique characteristic in traditional Chinese judicial culture.