論宋太宗的法律事功與法制困境──從《宋史‧刑法志》說起

On Song Taizong’s Legal Accomplishments and the Predicaments of Rule by Law: Starting with the “Treatise on Criminal Law” in the History of Song

相比於太祖，《宋史‧刑法志》側重於強調太宗在司法體制上的立法建設，勤於審斷、饒富經驗的司法形象和將個案處理方式「制度化」的傾向。這些刻畫雖然都相當準確，但並不全面，太宗在非刑事領域與司法吏治層面的制度構建、處理恩赦與財政關係的態度轉變、在區域法制建設上表現出來的強硬與妥協交替的立場、在天人感應思想中摻雜的「理性」態度等都未能在《宋志》中表現出來。《宋志》也注意到了太宗所面臨的一些法制困境，如監督機制與效率、責成原則的衝突、立法本意在法律實踐中遭到扭曲等，但更加值得反思的是，太宗的廣開言路導致了制度喪失穩定性，個案的「制度化」導致了立法欠缺體系性，監督機制的強化導致了司法資源的浪費，這一切當然都源自君權的任意性。

Compared with Taizu (r. 960-976), the “Treatise on Criminal Law” in the History of Song emphasized Taizong’s (r. 976-997) legislative construction in the judicial system, his image as a diligent and experienced judge, and his preference for institutionalizing adjudication of individual cases. These are fairly accurate albeit incomprehensive characterizations. They fall short of showing Taizong’s institutional construction in the non-criminal field and the administration of judicial officials, his changing attitudes when dealing with the connection between pardon and finance, his vacillating views on intransigence and compromise in regional legislation, rationalitytinted thought amid heaven-humanity interactions. The “Treatise on Criminal Law” in the History of Song also looks at some predicaments in the rule by law faced by Taizong, such as conflict between supervision mechanism and principles of efficiency and allocation of responsibilities, as well as distorted legislative intent in legal practices. However, more attention should be warranted to the following: Taizong listening to opinions widely resulted in the loss of a stable institution; “institutionalization” of individual cases resulted in the lack of systemic legislation; and strengthening of a supervision mechanism resulted in the waste of judicial resources. All of these are the result of the arbitrariness of monarchical power.