摘要
案件的裁決不嚴守法律條文的事實是中國傳統司法被認為具有「隨意性」的主要原因。傳統上固然以「天理」作為其突破法律條文的主要依據，但對今人而言，「天理」的含義通常被認為過於籠統，因而，中國傳統司法仍難免「不確定性」的顯著特點。本文通過對清代知縣的案件裁決活動，探究當「天理」作為案件裁斷中的依據時，可能具有的具體含義以及清代知縣運用「天理」作為裁斷依據時存在的規則性特點，以此說明「天理」的過於抽象和「高度不確定」或許主要是對後傳統時代的今人而言。
The reality that judging legal cases in Chinese traditional period was not strictly based on codes is probabily the main reason of criticism for of the haphazardness of Chinese traditional judicatory. To people who lives in modern time, the content of Tian- Li (天理) is generally thought to be extremely ambiguous, especially when Tian- Li (天理) was used as the bases of law in legal case judgments. Therefore basically, inexplicitness is considered to be a typical characteristic which belongs to Chinese traditional judicatory. Anyhow, this article is trying to explore the possible content of Tian- Li (天理) when it was used as the base of law in specific legal cases judgments and also to explore the well-regulated characteristic of the judicial activities, if there was any. Moreover, this article tries to prove that the words which people now commonly use to describe Tian-Li (天理) and Chinese traditional judicatory, such as hyper-abstract and hyper-uncertainty, exact to people of modern times, but not those who lived in traditional times.
關鍵詞
天理、清代、裁斷、律例
Tian-Li (天理), Qing (清)Dynasty, Judgment, Lu-Li (律例)