唐律中的“例”：來源、效力及其展開

Li in Tang Law: Source, Effect and its Extension

傳世文獻中的“例”常與“比”通用、互訓，表意中蘊含著相同情況相同處理的邏輯思維方式。竹簡秦漢律中的“比”是律無明文的前提下通過“比類”指向罰則的過程，唐律中的“例”是通過“比”所指向的規範。“例”是定罪量刑過程中“比”的固定化與條文化，也是“比”發展到一定歷史階段的產物。當規範體系中的“例”逐漸具有穩定的效力，“比”的適用空間便會越小。《唐律疏議》中的“例”就律篇結構來看集中於《名例》；就律條結構來看集中於“律疏”。“例”最主要的用法是表達通則性規範或“法例”，其形成及適用效力的展開始終表現於制定法體系內部，明確的法律條文始終是案件裁斷最終與最重要的依據，就立法表達的態度來看，並不存在“判例”與“先例”直接發生效力的空間。

The ''li'' in ancient literature often explains itself to ''bi'', ''tong'', ''lei'', ''fu'' and ''bi li'', ''bi fu'' and other fixed expressions are commonly seen. ''Bi'' emphasizes the observation process for different objects. ''Li'' regularly expresses such relations like ''tong'' ''lei'' and so on between different objects through the observation. ''Li'' does not need to be generalized through abstract thinking, but only to make the judgment of whether ''tong'' ''lei'' to different objects. The logical way of thinking of handling the same situation in the same way is implied in the expression. Before the Han Dynasty, the records related to norms, regulations, and judicial trials in the official history, classics, and their commentaries were mostly expressed in the form of ''bi'', while the commentaries on ''bi'' as ''li'' were mostly found after the Han Dynasty, especially in the Tang's commentary. ''Li'' is not seen in the legislation on a bamboo slip of Qin and Han dynasties, while ''bi'' is commonly seen. As the language of legislation, the ''bi'' is the process of directing penalties by ''bi lei'' under the premise that the law is not explicitly written. The gradual increase in the frequency of ''bi lei'' in the criminalization and sentencing process has contributed to a gradual fixation of the penalties to which they are directed. ''Li'' in the Tang law is the fixation and regularization in the criminalization and sentencing process, also a product of the development of ''bi'' to a certain historical stage. As the ''li'' in the normative system gradually takes on a stabilizing effect, the room for the application of ''bi'' will be less. The number of ''li'' appearing in the Tang Law is so large, involving many articles and complex forms of expression, that it is difficult to systematize them by a single criterion. In terms of the structure of the Laws, the distribution of ''li'' is concentrated in the (Ming Li); in terms of the structure of the Laws, the distribution of ''li'' is concentrated in the ''annotations of law''. The content of the articles is objective and specific in listing the modes of conduct, penalties and principles of conviction and sentencing, with the inherent disadvantage that the coverage of the specific articles is limited. In the case of acts that are not covered by the law and that need to be punished, ''bi lei'' is used to direct to the norms of the law that criminalize and sentence similar acts. The development of the legal system is, on the one hand, a gradual accumulation of legislative provisions and, naturally, on the other hand, a gradual and frequent application of ''bi lei''. This is due to the nature of traditional criminal law, which has not evolved in the direction of abstraction and generalization. The frequent application of ''bi lei'' leads to repeated ''bi lei'' to certain provisions that have taken on the character of ''fa li'', i. e., general norms. In the process of centralized annotation of the law, these elements will appear in the regulatory system with a special marking. The most important use of ''li'' in the Tang law is to express general norms or ''fa li'', and the process of formation and development of ''li'' and the operation of their application effects are always expressed in the system of enacting laws. The process of formation and development of the ''li'' and the operation of their applicability is always manifested in the system of law-making, and clear legal provisions are always the final and most important basis for case adjudication. As far as the attitude expressed in the legislation is concerned, there is no special term in the Tang law that affirms the validity of ''jurisprudence'' and ''precedent'', and ''jurisprudence'' and ''precedent'' have not had a decisive influence on the development of the legal system. The specific legal provisions laid down in the legislation are the starting point for the emergence of general norms or ''fa li'', which ultimately take the form of legal provisions and serve as the basis for the adjudication of cases.