摘要
本文從訓詁與法律制度的兩個角度重新探討漢代「殊死」概念的涵義。
訓詁學中「殊死」常訓為「斬刑」，以「殊」字能訓為「絕」與「異」為根據，主張殊死表示「身首離絕而異處」之意。其實，「殊」訓「絕」或「異」，是取其「竭（盡）」和「不同」之義，與「斷絕」等義項並不相關。應將殊字理解為「極詞」，與如淳將「殊死」訓為「死罪之明白也」相近。
在法律制度中「殊死」與「斬」或「棄市」之間存在明顯的差異，它不作為刑名或刑罰使用，卻與赦免制度有著密切的關係。根據本文考察，作為法律專用詞的「殊死」是對「不當得赦者」一類罪名的高度概括。其功能為：將死罪罪名分為兩類，一類可以赦減死刑，另一類則不然。
後者為殊死罪名，而前者又是漢代常見的減死罪名。「減死」是在元帝時得到制定法上的依據，這之前，其先後表現為「贖死」、「募下蠶室」、「踰冬」等臨時性的措施。本文從爵位減免特權的轉讓制度談起，進而分析上述措施以及減死制度所形成的過程，同時介紹西漢末期「減死」擴展為「減死徙邊」在刑事政策上的背景。最後，結語還對東漢所見到的一些刑事政策上的弛緩現象以及與本文所討論的制度之間的關係加以說明。
This thesis discusses the meaning of “shusi” from a linguistic and from an institutional perspective.
On an linguistic level, in former research as well as in classical interpretation, “shusi” is often misunderstood as a synonym of “zhanxing”(斬刑,capital punishment by severance of the head or the upper body). This misleading interpretation is based on the fact, that the character “shu”(殊), which is the first component of this word, can be explained by the characters “jue”(絕) or “yi”(異),which bear meanings close to severance. However, scrutiny into the characteristics of the usage of “shu” in early Chinese shows, that the relation between “shu” and “jue” or “yi” is mediated by the meaning of “exhaust/use up” or “being different”, there is no connection between the character “shu” and the meaning “severance”.
On an institutional level, there is no example in which “shusi” denotes any particular kind of sanction or punishment as “zhanxing” or “qishi”(棄市) do. “Shusi” is closely connected to the institutions of pardon or mercy. To be specific, capital offenses are classified into two categories, of which one can be made subject to commutation and the other not. “Shusi” denotes the later group of offenses, which are exempted from commutation.
The formation of the institution of commutation as well as the concept of “shusi” starts in the early Western Han. At the beginning a system of alienation of rank privileges on mitigation of coronal punishment inherited from the Qin is extended to capital offenses and rebuilt into an extraordinary form of redemption, another “shusi”(贖死). Commutation of capital punishment to castration (“mu xia canshi”募下蠶室etc.) is utilized as an alternative to redemption in case of insolvency. During the reign of Xuan-Di(宣帝) redemption of capital punishment as well as commutation to castration is repealed and temporarily substituted by “overwintering”(“yudong”踰冬), i.e. delay of execution until the next act of mercy in spring. In the time of Yuan-Di(元帝) a list of capital offences due to commutation to aggravated servitude without delay is drawn up for the first time, and in the time of Ai-Di(哀帝) servitude is further aggravated by addition of transportation to the frontiers (“xibian”徙邊). In all cases mentioned above capital offenses classified as “shusi”(殊死) are excluded from redemption or commutation. In this way a clear line is drawn between the two categories of capital offenses.
Finally, in the Eastern Han we can observe the regeneration of commutation to castration and redemption of capital offenses. This time these institutions are reutilized for offenses classified as “shusi”(殊死), whereas commutation to transportation and servitude is continued for the rest of capital offenses. This phenomenon is to be understood as an irregular relaxation of legal institutions, which are consequently followed by Confucian criticism and calls for restoration of coronal punishment. Nevertheless, these irregularities in the Eastern Han still follow the practice of differentiating two categories of capital offenses as seen in the Western Han.
關鍵詞
減死、贖死、募下蠶室、踰冬、右趾、徙邊、謫戍
Western Han, Redemption, Commutation, Capital offenses, Shusi, Castration, Mercy
