摘要
唐代判词是中国古代法律智慧的结晶。一些用骈文写成的判词,修辞考究,形式优美,给人以"华而不实"的感觉,一些学者认为其是"堆垛故事之浮词"。经考察发现,一些优秀判词并非如此,华丽外表之下有着丰富义理,这与评判唐代判词的标准有很大关系。一篇优秀判词首先要观点正确,其次要合乎法律,此外还要合乎逻辑、言辞优美。只有这四者比例协调,才能形成好的判词。以"刑狱门"为代表的唐代判词符合上述原则,因此,并非"徒有其表"。唐代判词还非常注重法律论证,论证结构非常复杂,普遍采用中国传统辩证论证方法,即"双证"方法,亦即理证与事证相结合、正面证明与反面证明相结合、演绎论证与模拟论证相结合,一阴一阳,构成一个统一的整体。这表明,到唐代,我国古代法律思维已经逐渐发展成熟。
Traditional court verdicts of China’s Tang Dynasty（618A.D.to 907A.D.） are held up as the embodiment of the finest legal tradition of imperial China.Typical Tang court verdicts,which were written in the style of parallel and ornate prose and were characterized by profuse employment of rhetorical devices and rigid compliance with literary formalism,have been criticized as pretentious and even categorized as ＂mere collection of ambiguous allusions under the surface of a flowery literary style＂.However,upon a close review of such verdicts,it is found that such characterization does not apply to outstanding court verdicts of the Dynasty.These selected court verdicts,in spite of their deliberately ornate style,are actually a rich mine of traditional Chinese legal principles and values.To put it briefly,a fine traditional court verdict of Tang Dynasty must first be correct in its finding and compliant with law and meticulous in logical reasoning and rhetoric and also properly balance the four elements.The verdicts collected under the section of Selected Verdicts under Wenyuan Yinghua perfectly fit the above description and hence should not be dismissed as ＂pretentious in form but hollow in contents＂,as is the case with other court verdicts.Furthermore,in Tang court verdicts,great importance was attached to legal reasoning,which was based on a deliberate and complex process,namely,the ＂dual reasoning＂ under traditional Chinese approach to debate and argument,which requires the integration of reasoning based on principles and reasoning based on facts,the integration of positive and negative proofs,and that between deductive argument and analog demonstration.Such emphasis and skillful employment of opposites in reasoning shows that by the Tang Dynasty,traditional Chinese legal thought had already attained its maturity.
出处
《现代法学》
CSSCI
北大核心
2013年第4期47-61,共15页
Modern Law Science
基金
教育部人文社会科学研究2009年度一般项目"法律方法上的西方经验与本土资源"(09XJA820011)
关键词
唐代判词
《文苑英华》
法意
逻辑
修辞
court verdicts of the Tang Dynasty
Wenyuan Yinghua
spirit of law
logics
rhetoric
