出土文獻에 보이는 秦漢시기 令과 律의 구별

Abstract

One of the important issues about laws and decrees during Qin and Han dynasties is whether “law” and “decree” were mixed. There are two types of interpretation for this issue: 1) According to Cheng Shude, the law and the decree were not strictly distinguished in Han dynasty. Names of laws and decrees were mixed. Sometimes, the decree was called law as well. 2) According to Kaoru Nakata, “decree turned into law” from the perspective of “conversion between law and decree”. The Decree of Gold and Cloth had been replaced by the Law of Gold and Cloth since a certain time. The author believes that the key to this problem is to analyze such terms as “incompliant to decree” and “incompliant to law” in the laws and decrees. “Incompliant to decree” means “when disobeying the existing legal provisions (“decree or law”), the person will be penalized”. In terms of the existing provisions, the referents of “incompliant to decree” and “the decree is not applicable” here can be considered as the proviso for judging whether the provision is a decree or a law. Cheng Shude held that decrees were mixed with laws at that time. However, it’s not because decrees were mixed with laws that the Decree of Gold and Cloth could be mixed with the Law of Gold and Cloth. Instead, it was a phenomenon occurring during the sorting of terms in the period of the bamboo slips of Qin dynasty collected by Yuelu Academy of Classical Learning. It was wrongly interpreted as mixed use of names of decrees and laws by scholars of later ages. Comparing “incompliant to law” and “incompliant to decree” from the Laws and Decrees of the Second Year with those from the laws of Qin dynasty, the sorting in the former is much clearer. In the 27 laws of the Laws and Decrees of the Second Year, “incompliant to decree” was only used once, and all the others were changed to “the law is not applicable” or “incompliant to law”. It can be seen that the principle of using the term “law” in laws and the term “decree” in decrees had been established at that time. Why? Because in the period of preparing the Laws and Decrees of the Second Year, the concepts of “law” and “decree” had been defined, so when “decree” was changed into “law”, it would be considered as contradictory to use “the decree is not applicable” under a law. It resulted from the sorting of concepts by the officials in charge of laws and decrees. Therefore, the author does not agree with the idea that “laws” and “decrees” were mixed in the period of Laws and Decrees of the Second Year. “Incompliant to decree”, “the decree is not applicable” and so on were still used in imperial edicts. Afterwards, when “decree” was changed into “law”, “incompliant to decree” turned to “incompliant to law” as well. As “incompliant to decree” was not distinguished from “incompliant to law” in the past, there were scholars deeming that there was no difference between “decree” and “law”. The concepts of “law” and “decree” were established during the period of bamboo slips of Qin dynasty unearthed at Shuihudi. “Incompliant to decree” was not completely transferred to “incompliant to law” in early laws of Qin dynasty. From the bamboo slips of Qin dynasty collected by Yuelu Academy, “incompliant to law” was used more frequently. During the period of Laws and Decrees of the Second Year, based on existing concepts of law and decree, the preparation for laws and decrees was adjusted and unified, which has historical significance. Why wasn’t “incompliant to decree” replaced by “incompliant to law” before the period of Laws and Decrees of the Second Year? It’s because during the period of bamboo slips of Qin dynasty unearthed at Shuihudi and the period of bamboo slips of Qin dynasty collected by Yuelu Academy, the laws kept by the Central Censor Office had not been modified yet.