唐律说“理”

“Reason”in the Tang Code

以理证法、以理说法是中国古代法律史、法学史的传统,唐律及其疏议堪称这方面的典范。在《唐律疏议》中,表述原理、道理的“理”字共有144个,成为固定词组者有人理、事理、情理、词理、言理、辞理、理法等。从法律功能而言,唐律以理同、理别、理不相须等分辨不同主体、客体、行为间的异同,以正理与非理、理直与理曲、合理与失理、常理与变理判断当事人的行为是否正当,并以此作为行为危害性轻重的标准。唐律中的理并非法律渊源,而是证成规则正当、理解法律意旨以及指导司法裁判的原理、理据、准据。弘扬唐律法理言说的学术传统,对于中华优秀传统法律文化创造性转化、创新性发展有着重要的理论价值和现实意义。

It is a tradition in the history of ancient Chinese law and jurisprudence to use reason to argue in law and explain in law.In this regard,the Tang Code and its commentary can be recognized as a model.In the Tang Code,there are a total of 144“reason”characters that enunciate principles and arguments,wherein some have become the fixed terms such as humanitarian reason,rational reason,sensible reason,literal reason,logic reason,rhetoric reason,legal reason etc..In terms of legal functions,the Tang Code distinguishes the similarities and differences between various subjects,objects and behaviors through the reason of proximity,the reason of differentiation and the reason of non-interdependent.In judging the justification of the involved party's behavior,the criteria used are based on the right reason and wrong reason,justified reason and distorted reason,rational reason and irrational reason as well as common reason and changeable reason,which are also used as the standard for measuring the harmfulness of their behavior.Reasons in the Tang Code are the principles,rationales and criteria that justify the rules,understand the meaning of the law and guide judicial decisions,rather than the source of law.Promoting the tradition of jurisprudence explanation from the Tang Code has important theoretical value and practical significance for the creative transformation and innovative development of China's excellent traditional legal culture.