동양 古典에서 죄악을 예방하는 제방으로서 법의 비유와 예방법학

Abstract

It is very interesting to compare courtesy & law as the net, medicine and dike in East Asian traditional legal culture. The present writer already published the results of research on the metaphor of law as net or medicine, now study the metaphor of law as dike to prevent sin and philosophy of preventive law. As is generally known, criminal law has functions of general & special prevention against crime, this paper study the preventive functions of courtesy and law found in East Asian classics centering around confucian scriptures by inductive method based on making analysis of texts. As ancient mankind had converted from hunting to agriculture and settled down, invention of dike appear driven by necessity to prevent flood & demand of hydroponic culture. As population had increased and human society had become complicated, various quarrels & struggles had arisen from human avarice & anger. So saints & sages with wisdom for living had devised courtesy and law as the dike to prevent human emotions flow from flooding out in order to keep social order. The historical evidences that courtesy as general social norm had functioned as dike to prevent crime and sin are found universally in confucian scriptures, esp. concentrated examples in Fang-ji, the 30th chapter of 『Li-ji(禮記)』. So this paper surveys at first the thoughts on general courtesy as dike as well as individual courtesy about five major human relations that is courtesy between king & subject, filial piety to one’s parents, distinction between the sexes to prevent lechery, and the mind of declining in favor of another & the virtue of non-struggle. Next it searches for various metaphors of dike & philosophy of preventive law developed in East Asian history, and then investigates special metaphors of dike as saving water in reservoir, dike in military strategy, and metaphor of wall & castle similar to dike in addition. Finally it mentions briefly preventive philosophy of 『Lao-zi(老子)』 & 『Zhou-yi(周易)』 as origin of Hanfei’s(韓非) preventive law, and points out misunderstandings & mistakes in the reasoning of the Legalist school, and emphasizes the bad effects of preventive thoughts. I’d like to anticipate that this work will have a good effect and shall be followed by more interests and deepening studies esp. comparative researches on western legal cultures.