摘要
中原农耕地区与北方游牧社会各自独立发展出了鞭、杖(笞)刑.在农耕地区,它们是渊源于"族内制裁"的次刑,与出自"族外制裁"的正刑("旧五刑")有根本性区别.汉文帝的刑制改革并非这类刑罚日后成为"新五刑"组成部分的主要原因,鞭、杖刑成为正刑,是北魏孝文帝汉化改革的成果.孝文帝以《尚书》等儒家经典为蓝本建构本朝的五刑体系,但又完全不拘泥于经典文本,而是对农、牧两种文化资源进行了取舍与融合.以鞭、杖作为"五刑"中的两种刑罚,是农耕与游牧两种文化的结合,最大限度地减少了法制变革的阻力,反映了中国文化由多元凝聚为一体的趋势.
Abstract
From the Qin dynasty on,bian(鞭),chi(笞),and zhang(杖)had been three types of punishments with the same or similar functions.The Five Punishments mainly involved the use of corporal punishment to harm limbs,basically different from the"Four Punishments"of exile,redemption,bian(鞭)and pu(扑).The essence of corporal punishment was to expel criminals from the community,but those who were punished with bian,chi,and zhang still retained their membership in the community and were allowed to stay within the community.As penalties,the Five Punishments were applicable to people of other ethnic groups,while bian,chi,and zhang belonged to the category of"ritual"and were suitable for people within the ruler's own ethnic group.Whether employed in the family or in the country,the main purpose of bian,chi,and zhang was to teach a lesson,so they were both for discipline and for official punishment.At the same time,determined by factors such as location,purpose,function,and scope of implementation,they were secondary rather than primary punishments,which were significantly different from the Five Punishments that served as primary punishments.Emperor Wen of Han's reform of the penal system is widely regarded as a key turning point in the ancient Chinese penal system.This reform elevated the punishment of chi from a"statutory secondary punishment"to a"statutory primary punishment",making it quite different from the bian,chi,and zhang that were previously used as a teaching and official punishment.However,due to lack of experience and inadequate consideration,this reform ended in failure.The bian and zhang punishments were upgraded from secondary punishments to primary punishments,which began with the legal reform of Emperor Xiaowen of Northern Wei.When Emperor Xiaowen personally formulated laws and regulations,he referenced the Five Punishments recorded in Confucian classics such as the Book of Documents.The Sinicization reform faced numerous obstacles,which required the clever integration of farming and nomadic traditions.In nomadic societies,bian and zhang punishments were also used as light punishments.Therefore,Emperor Xiaowen attached them to the Confucian classics as official punishment and disciplinary punishment,and incorporated them into the legal code,becoming two of the five formal punishments in the imperial code.Although bian and zhang punishments were legally defined as light punishments,under the influence of the nomadic culture's emphasis on heavy punishment,bian and zhang punishments had gradually shown a trend towards heavy punishment and even death penalty in actual execution.In the Sui and Tang dynasties,the use of zhang punishment became increasingly incompatible with agricultural society,leading to a widespread phenomenon of using zhang punishment to kill people.In order to solve this problem,the imperial government took various regulatory measures.After the clarification of concepts and standardization of practice,zhang punishment officially entered the national judicial system and became a form of execution for the death penalty.At the same time,the system and practice of imposing zhang punishment as additional punishment during the execution of imprisonment and exile began to emerge.The zhang punishment as an additional punishment may seem light,but in reality,it was very heavy,with a punishment intensity far exceeding that of the main punishment.In fact,imprisonment and exile had become additional punishments of the zhang punishment.This was actually a return to the punishment system of the Han,Wei,and Southern dynasties.
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