【作者】 杨超；

【导师】 武树臣；

【作者基本信息】 山东大学 ， 法律史， 2016， 硕士

【摘要】 随着我国法治建设的日趋完善,学术界对于我国传统法律文化的研究亦不断深入。其中,对于中国古代法律的起源问题无疑成为热点与难点。前代学者囿于史料的匮乏而难以深入,当代学者则凭借丰富的考古资料与多学科交叉的有利条件,分别立足于法理学、文化比较和法史学等诸多领域展开讨论,并形成了丰硕的成果。但是尚有许多问题未能深入。中国古代法律的起源有着极为深刻的历史背景。原始社会末期,随着社会生产力水平的不断提高,特别是农业的发展,导致了手工业从农业中分离出来,并进而促进了社会阶层的分化与贫富差距。所有这些均为古代法律的产生提供了重要的社会基础。中国古代法律的一个重要起源是战争,即所谓“刑起于兵”。随着社会的发展,部落及部落联盟形成,对于有限的资源的争夺也随之加剧。并不可避免地引发战争。而为了更好地在战争中管理部落内部成员,惩罚敌对部落的俘虏,部落统治者便在这过程中逐渐形成了一套规则,此即中国古代法律的最初形态。这一点在文献资料上主要体现在《尚书》等早期典籍中,而在考古资料上则主要集中反映在河南龙山文化的一些遗存中。中国古代法律的另一个起源是礼,礼产生于原始社会的祭祀活动,即所谓“礼生于祭”。随着早期国家的出现,统治者开始攫取祭祀中的主祭权,从而利用祭祀活动形成一套约束氏族内部全体成员的行为规范。礼的产生主要出现于祭祖、祭天、社祭和与战争有关的祭祀中。相对于刑的严苛与残酷,礼更多地体现出一种温和性。从而使中国古代法律自诞生之日便兼具了刑的严酷性与礼的引导性功能。对比欧洲法律的起源,可以更深刻地理解中国法律起源的特征。与欧洲法律诞生于契约关系的情况不同,中国古代法律诞生于战争,由此导致两种法律文化在特征上的差别。中国古代法律带有明显的集团性特征,西方古代法律体现了契约性特征；中国古代法律强调刑罚,西方古代法律则带有一定的民主色彩；中国的法律起源充满了集团本位价值理念,西方古代的私法更多的是注重“个人”本位。导致两大法律体系差别的原因主要是两大文明所产生的不同的自然环境。从而使东西方在古代法律文化方面走出了各具特色但同样辉煌的发展道路。更多还原

【Abstract】 With the construction of Chinese legal system being more perfect, the academic study of China’s traditional legal culture has been more deeply. Among them, the study of the origin of the ancient law of China undoubtedly has become a difficult focus.Confined to the lack of historical data former generation of scholars were hard to go further. However, contemporary scholars have harvested fruitful results in the fields of jurisprudence, comparative culture and legal history respectively by virtue of the rich archaeological data and favorable conditions of multidisciplinary subjects. But there are still many issues have not been explored deeply.The origin of Chinese ancient law has a very profound historical background. At the end of the primitive society, with the continuous improvement of social productivity, the handicraft industry was separated from agriculture, which promoted the differentiation of social class and the gap between the rich and the poor. All these have provided the important social foundation for the generation of the ancient law.One of the important origin of Chinese ancient law is war, the so-called "punishment stems from the military". With the development of society, the competition between the formation of tribal and tribal alliances became more fierce, which inevitably led to war. In order to better manage the internal members of the tribe in the war and punish the captive of the hostile tribes, tribal rulers gradually formed a set of rules in the process, which is the original form of Chinese ancient law. This point was mainly reflected in the early classics such as the book Shangshu in terms of literature while concentrated in some vestiges of Henan Longshan culture in terms of archaeological data.Another origin of ancient law is China ritual, which produced in primitive ritual activities, the so-called "ceremonial offerings ". With the emergence of the early state, rulers began to grab the power of sacrifice to the priest and formed a set of constraints within the clan members of a code of conduct using sacrificial activities gradually. The ceremony occurred mainly in worship, worship, sacrifice and war related sacrifice. Compared to the harsh and cruel punishment, courtesy seemed to be milder. As a result, Chinese ancient law had the harsh color of punishment and guiding function of ritual since its existence.Compared with the origin of European law, we can better understand the characteristics of the origin of Chinese ancient law. The ancient law of China was born in the war, which resulted in the difference of the characteristics of the two kinds of legal culture, which was different from the European law. Law of ancient China with obvious characteristic of this group and western ancient law embodies the characteristics of the contract; in ancient Chinese law penalty should be emphasized, ancient western law with certain democratic color; China’s legal origin was full of group standard values, the ancient western private law was focused more on "personal" standard. The main causes of the difference between the two major legal systems were the different natural environment caused by the two major civilizations. As a reasonable result, the East and West in the ancient legal culture carried out their own unique but equally brilliant development paths.更多还原