漢律から唐律へ : 裁判規範と行爲規範

Abstract

During one millennium, from the inception of the Han Statutes (漢律) in the 3rd century BC until the establishment of the Tang Criminal Code (唐律) in the 8th century AD, Chinese codified law changed and developed towards a combination of criminal code (律) and administrative statutes (令). Judged by any criteria within the period in question, this was a considerable achievement.Yet despite being a precocious feat, what sort of resource did the Tang code effectively offer in actual cases of legal judgment? The Code's article on 'judgments and prison sentences' stipulates : "All criminal sentences must cite a formal provision from the Code, Statutes, Regulations, or Ordinances." However, scholars have hitherto found no evidence to verify this requirement in the historical sources of the Tang period. On the other hand, a mass of historical and archeological data from the Han period is available to prove that the demand to cite relevant Han statutes was regularly observed. I argue that these divergent Han and Tang practices arose out of extremely different character and conceptions of law in the two periods. My analysis considers four factors : 1). the changing relationship between the Confucian canon and legal codifications ; 2). the enduring consideration of individual mitigating factors in the application of code articles ; 3). the historical ascent of new social conditions through which to constitute crimes ; 4). the appearance of new ordinances 格 to guide actual practices concerning judgement. I conclude that during this period the concepts underlying the various processes of legal codification developed from what I have called Han norms of adjudication into Tang norms of conduct. This conceptual shift had important implication for the practical business of interpreting and applying the law during the formative period of Chinese imperial government.