摘要
前言就傳統法律而言,犯罪之成立與行爲人之身份具有莫大關係,而且根據身份定刑則有加减或輕重,這樣的身份,可稱爲“加减身份”或稱“刑罰身份”^([1]),以唐律而言,大致可分爲責任年齡身份與尊卑貴賤身份兩類。責任年齡身份方面,學界討論甚詳,此處從略,拙稿此處擬特就尊卑貴賤身份進行探討。關於唐代的身份制社會,筆者先前已有專文撰述,讀者可參看^([2])。
The status-based ethics seen in the Tang Law refers to the four categories of superiority and inferiority(尊卑),nobleness and lowliness(貴賤),senior and junior(長幼),and husband and wife(夫婦).The four categories can be roughly reduced to the first two categories,which are the most basic ethical status order in its legal culture.The Tang Law assigned different punishments and liability according to the offender's status.At the same time,it took into account the constancy(常)and change(變)of the situation,or the principle of regularity(經)and expedience(權),and flexibly responded to the conditions of the real environment instead of rigidly sticking to the regulations.Therefore,it was common to have different punishments for the same crime and it can be considered a characteristic of the inherent law.The goal of punishment was to achieve equality of status order.Such jurisprudence was based on natural law and ethical order,which in turn was derived from natural law.Its origins were the teachings of pre-Qin Confucian sages and the inheritance of the historical legal culture.Therefore,the jurisprudence constructed in the Tang Code and Commentaries唐律疏議is indeed the crystal of traditional legal culture.
出处
《唐研究》
2023年第1期481-523,共43页
Journal of Tang Studies
