略论中国传统法律中“人”的形象——以“刑起于兵”为核心的考察

Human Concept Implied in “Punishment Originates From War”

中国传统法律对人如何设定是一个值得思考的问题。在刑起于兵、兵刑合一的语境下,被刑者以违背纲常、行为有害于社会且品行不端的形象存在,而执刑者则以信守纲常、克宽克仁、品行高尚的形象出现。因此,执刑者作为天意的代理人,所执行的不仅是人间的法律,而且是神圣的天意,代表着"正义"、"正直"、"公正",而这种"正义"不仅以天意、天命为依据,更以执刑者自身之德为支撑,从而使"刑"与"德"达到统一。

How human's figure was set up in Chinese traditional law,this is a question.In the context of 'punishment originates from war',those who were punished,were considered to be harmful to society and moral corruption,while executioners were kindhearted and just and had noble character.So,executioners were deemed to be agents of Providence.They performed not only human laws but also represent of 'justice' and 'honesty',in which punishment and virtue reached a unification.