宗法伦理与汉代家系继承制度

汉代继承关系的法律,传世古籍未有具体记载,张家山汉简之《二年律令》所见汉代继承关系的法律却多达20款。汉代家系继承法主要体现在爵位继承和户主继承上。张家山汉简律对家系继承关系的规定,展现出汉代家系继承制度之宗法伦理特色:一是家系继承以血缘亲等为中心,体现出家庭成员的身份等差;二是兼顾婚姻关系,规定了妻子的继承权;三是宗法血缘关系之入律是从立法方面开始的,也体现在司法实践过程中,家系继承法律规定与家系继承实践存在差异;四是父系血统关系是逐渐增强的。汉代家系继承法既以立法的形式强调了宗法伦理关系,也以立法的形式肯定并加强了家庭内部的不平等关系。

Patriarchal Ethic and Ancestral Inheritance System in the Han Dynasty

From the ancient literature, the record of the law on the inheritance relation in the Han Dynasty cannot be found, while in the bamboo slips Second Year Laws and Decrees unearthed in Zhangjiashan there are as many as 20 items on it. The inheritances of the official title and of the head of the household are the main aspects of the ancestral inheritance in the Han Dynasty. The law of ancestral inheritance recorded in the bamboo slips illustrates the patriarchal ethic features of ancestral inheritance system as the following. First, consanguinity takes the priority in the ancestral inheritance, which means the family member has different status in the inheritance. Second, it also involves the marriage relationship by the means of prescribing the wife’s right to inherit. Third, from the aspect of legislation, patriarchal consanguinity is legalized, while it is also carried out in the justice practice, even though there exists the difference between the law-making of ancestral inheritance and its practice in reality. Fourth, the paternal consanguinity is strengthened gradually. The ancestral inheritance law in the Han Dynasty not only emphasizes the patriarchal ethic in the law form, but acknowledges and strengthens the unequal relationship among the family members in the same way.