摘要
拙稿擬略述流刑在初唐時期成立之梗概，並歸納唐代流刑的重要特 質。漢唐之間刑罰制度的變革，乃以肉刑為核心的「古典刑罰」開始崩 解而展開，逐漸過渡至以徒刑、流刑為主體的「傳統刑罰」。流刑的成 立與成熟標誌著刑罰歷經數百年摸索的成果，其意義絕不可輕易視之。 針對漢唐刑罰的變革，筆者擬從比較視野提出幾點宏觀論述以就教方家。 唐代流刑或許在武德元年（618）制定「五十三條格」時即已建立， 其經典依據從《尚書．舜典》轉為《尚書．立政》。太宗貞觀 14 年（640） 頒布新制，三流配送時「不限以里數」，配所大抵以「邊要」和「遠惡」 為重要考量。流刑是由「遠逐」與「苦役」構成，是五刑中唯一的複合 式刑罰，亦是唯一會牽連到家族成員的刑罰。流刑不在本縣或本州執行， 犯人乃至隨流家屬的口糧，再加上專使、防援人力等開銷，所費不貲。 此外，作為一種刑罰，流刑的威嚇力相當程度源自於「想像」。 上古以肉刑為核心的「古典刑罰」，論其性質約有四項特徵：（一） 刑罰直接碰觸與虧損人的身體。（二）刑罰帶來肉體剝割之痛與形體殘 缺，極其殘酷。（三）一種強調「展示」的刑罰，並藉此達到威嚇的目 的。（四）犯人身上留下明顯的標識，表面雖是重返故里，實質上卻是 遭到社會唾棄與驅逐。相對於「古典刑罰」，隋唐以流刑、徒刑為主體 的「傳統刑罰」，其特徵分別為：（一）刑罰不再碰觸人的身體。（二）刑罰所帶來的痛苦是勞作苦役和遠徙旅途奔波等折磨，乃至人身自由遭 到剝奪等。（三）刑罰從「展示」轉變為讓人憑著「想像」而感到恐懼。 （四）犯人雖是自鄉里被驅逐遠方，但在配所卻得以重返社會。
This article briefly outlines the establishment of exile (liu xing 流刑) in the early Tang Dynasty, and summarizes its important characteristics. In addition, it also makes some observations from a comparative perspective on the changes in punishment that gradually arose during the centuries between the Han and Tang Dynasties. The punishment of exile in the Tang Dynasty may have been established when the “Fifty-three Rules” were formulated in the first year of the Wude 武德 era. Its classical basis shifted from the Shundian 舜典 section to the Lizheng 立政 section of the Shangshu 尚書. In the fourteenth year of Emperor Taizong’s 太宗 reign in the Tang Dynasty, a new system was promulgated. During the transportation of exiles, there was “no restriction on the number of miles” (buxian yi lishu 不限以里數), with considerations mainly focusing on “strategic places on the border” (bianyao 邊要) and “faraway harsh places” (yuane 遠惡). Exile was composed of “far expulsion” (yuanzhu 遠逐) and “hard labor” (kuyi 苦役). It was the only compound punishment among the five punishments (wu xing 五刑), and it was also the only punishment that involved family members. The exile did not take place in the original county or province, and the manpower and material resources involved in feeding, transporting and guarding the exiled person and those who followed him into exile were significant. In addition, as a punishment, the intimidating power of exile came largely from “imagination.” The “classical system of punishment” of ancient times, with corporal punishment as its core, had approximately four characteristics: 1) direct application and damage to the human body; 2) inflicting of pain and physical mutilation of an extremely cruel nature; 3) an emphasis on “display” to achieve intimidation; 4) the leaving of obvious marks on the prisoners’ bodies, so that despite “returning” to their hometowns, they were actually cast aside and expelled from society. The “traditional system of punishment” in the Sui and Tang Dynasties centered around exile and penal servitude also had four characteristics: 1) punishment was no longer applied directly to the human body; 2) the suffering inflicted by the punishment included hard labor, long journeys, and even deprivation of personal freedom; 3) punishment was transformed into fear based on “imagination”; 4) although the offenders were expelled from their hometowns to distant places, they were allowed to reintegrate into society within the assigned locations.
關鍵詞
唐代、流刑、古典刑罰、傳統刑罰、刑罰變革
Tang Dynasty, exile (liu xing), classical punishment, traditional punishment, penal reform