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以往多认为法家推行绝对的“刑无等级”原则,排斥一切法律特权,进而认为竹简秦汉律中有关法律特权的法令都是儒家思想影响下的产物。其实这是对法家思想的误读,在法家经典著作中就有丰富的有爵者享有法律特权的思想,竹简秦汉律中规定有爵者法律特权的法令就是这种思想的直接体现。法家强烈主张的刑无等级主要表现在司法上,是对以前贵族操纵司法权进行隐秘司法的彻底反动。法家在立法上规定法律特权诱使人民努力耕战,在司法上主张刑无等级绝不放纵犯罪,二者完美地结合在法家思想体系中,据此也可以从刑罚必定性角度重新认识法家追求法治的方法。
In the past, it was believed that the legalists practiced the absolute principle of “no punishment at all levels of punishment” and excluded all legal privileges. Thus, the decree on the legal privileges of Bamboo and Bamboo in Qin and Han Dynasties was the product of the influence of Confucianism. In fact, this is a misunderstanding of the legalist’s thought. In the classic writings of the Legalists, there is a wealth of thought that jazz enjoys the privilege of law. The ordinance that stipulates the juridical legal privilege of the bamboo and bamboo law of Qin and Han Dynasties is a direct manifestation of this kind of thinking. The lawlessness advocated by lawyers is mainly manifested in the judicial hierarchy, which is a complete reactionary reaction to the secretive judiciary exercised by the nobility. The lawyer prescribes legal privilege in the legislation to induce the people to work harder and to claim that there should be no indulgence of crimes in the judicial system. Both of them are perfectly integrated in the legal system of the legalists, so that they can also re-understand the necessity of punishment Legalists pursue the rule of law.