摘要
本稿完成於筆者關於傳統中國法概念研究的數年成果（其中包括刊載於台北，《法制史研究》第九期的〈試探傳統中國法之總體像〉）的總結的基礎之上。
法制史學者在探討傳統中國的法的時候，設問的範圍遠遠超過古漢語中「法」的含義（古漢語中的「法」主要是指律和刑罰），除了包括民事方面紛爭解决的基準以外，社會正義的存在形態和社會秩序的形成方法也包含在這個範圍之內。這些設問對於現代法學家的研究和比較研究東西方法制史時都是很必要的。但是在探討這些問題時，不能將起源於近代西歐的法概念單方面地套入傳統中國來使用，而且單就站在中國的角度上來說，這裏也需要獨自確立一個能闡明傳統中國固有的社會正義內容、存在形式以及制定法的作用的整體性的概括性的法概念，而且這個法概念的構築也會對探究西方法概念的特質提供重要的線索。由此，本稿以確立這樣一個概括性的法概念為課題，並按如下的方式展開討論。
在第一節「傳統中國的社會和裁判」中對基礎的概念和知識進行整理分析。闡明清代中國社會是一個充滿市場要素和契約要素的、具有高流動性的競爭社會，國家對解决社會紛爭發揮了很大的作用，在國家進行的審判中，兩種判斷方式──在刑事案件的申報過程中典型存在的援用制定法准據的判斷方法和在州縣自理案件（聽訟、有關民事糾紛的審判）中典型存在的自由裁量的判斷方法──同時存在。
在第二節「法＝社會正義的存在形態」中討論民事審判規範的基礎。雖然說審判的目的是做出「符合情理」的解决，但是其情理的內容却伴隨案件各個不同的情形呈現不同的內容，實際上，審判的過程就是從社會整體出發找出符合每個案件中個別意義上的情理的內容。如果把在裁决中所實現的內容稱之為法的話，這裏的法就是作為持有兩個極端含義──情理這樣一個原理和符合情理的無數的個別的解决事例──的曖昧的整體而存在。而與此相對的，在西方法中，法首先是作為原理和事例中間存在的規則（rule）而存在。
在第三節「審判制度的基本構造」中討論沒有規則這個媒介物──因而沒有立法和法的適用的作用分化──的傳統中國的審判制度，如何獲得社會性的正當性問題。這裏伴隨著案件不同，當事人社會不得不總是同時關注判决內容的正確性和表述判决的審判官的資格問題。但是在這種不安定的反面，有的却是一種可能性，即審判官如果能夠高明地表述出當時社會廣泛接受的結論，那他就可以就此直接獲得作為公論體現者的權威。傳統中國的審判存在於這樣一個循環的構造中，而且皇帝的權威的成立基本上也存在於這樣的一個框架中。
在第四節「實定法的位置」中將重心轉至論述刑事裁判的性格。先在概念上確認刑事審判在本質上也是這種由「情法之平」引導的非規則型的審判。接著闡述律例作為皇帝官僚制度全體為了統一「情法之平」判斷的參考標準發揮著作用──而不是作為單個案件的判决提供依據的基礎。而且，在非規則型法制度下，在一定條件下也實行法的制定法化。雖然同是制定法，但是却不能將其和西方法中的規則一視同仁。
在第五節「法制度化的兩類型」中，將上面的論述進行總結，提出非規則型法的概念，並討論其與規則型法概念的異同。
We are accustomed to regard adjudication as the judging of individual cases according to general rules, and law as the rules which the judges apply to cases being adjudicated. Based on this definition, traditional Chinese law has been characterized as being underdeveloped in terms of civil law, and in a stage of early development in terms of criminal law. This paper attempts to challenge this characterization by re-defining "law" itself.
In the first part, I explain the social conditions of Ch’ing justice. There happened many disputes between small, insecure and isolated households. They unhesitatingly filed suits with the court of district magistrates, and the magistrates dealt with the cases relatively faithfully. On the civil cases, the magistrate could pass judgment by himself, however on the criminal cases, he had to report them to a higher officials to obtain their approval.
In the second part, I discuss the characteristics of civil justice. This is "individualistic" because the judgments might vary according to the individual situation. However, it is also "universalistic" because each individual judgment is not assumed to vary according to the judge, but to be what whoever handles the case would judge in a similar fashion. It was the ideal that all individual cases had their own individual judgment, that each judgment is shared by all the public, and that the judge represents gonglun公論 (public and impartial opinion). Qingli 情理 (situations and reasons) is the term representing these judgments. In other words, there existed only a single principle, qingli, with many cases representing that principle; not the medium between them, that is, the concrete "rules". The courts were not deemed to be where established rules to individual cases were applied, or where those rules might be "realized"; rather they were the place where individual judgments were made directly from the principle of qingli. The judges were expected to have du徳 (virtue), in order to show the parties concerned a public and impartial opinion.
In the third part, I look at the adjudication system which backed up such "individualistic / universalistic" justice. Because it was not always easy for the individual judge to persuade the parties concerned that his judgment was nothing but public opinion or that he was a man of virtue, the legal system had to allow contending parties to challenge the impartiality of the judge or the judgment by appealing to a higher court, thought of as being more representative of public opinion, and let them confirm its "universality" for themselves. If the appeal system, which stretched up to the Emperor, was able to absorb the anxiety of the parties, the authority of the state would be recognized by the people; if it could not, however, even the authority of the Emperor might be questioned. Those who represented public opinion were men of virtue, while what a man of virtue declares was public opinion. These two arguments are always circular. However this was an unavoidable consequence. There could not be a functional classification between the making of rules and the application of rules as long as there was no concept of "rule".
In the fourth part, I investigate the nature of positive law in China, that is, the criminal code. Hitherto, the Chinese code has been assumed to be the "rules" applied to cases by officials during criminal adjudication. I assert, however, that Chinese criminal justice too was not legitimized by the criminal code, but by the principle of qingfa zhi ping 情法之平, the balance between the crime and its punishment, in the same way as civil justice was directly legitimized by the principle of qingli. It was not required that the accused be told by what article of the code he would be punished. When the particular situation of a case differed slightly from the text of the code, officials were not given the authority to interpret the articles for themselves, but were obliged to bring the case to the Emperor. The code was a set of broad guidelines made by the Emperor to direct the judgments of officials, not the grounds upon which officials make their judgments, that is, rules for criminal adjudication.
In the fifth part, I sum up my discussion and conclude as follows. There were not any "rules" in traditional Chinese adjudication that individual judgments could rely on and must abide by, and it was not assumed to be the duty of the authorities to realize established rules through adjudication. Conversely, the Chinese public authorities were assigned the role of finding the best solution fitting qingli for each case, and the adjudication system was designed to accomplish this duty in an impartial and public way. Here, we could of course still restrict the concept of law to something like "rules", and completely exclude traditional China from world legal history. However, it would be better for those who wish to know the nature of law to admit that there existed a "law" without "rules" in world history.
關鍵詞
法、規則（rule）、法原理、制定法、情理、情法之平
Law, Justice, Qingli, Qingfa zhi ping, Code, Rule
