再审琦善：历史学、法学与证据科学

History,Law and Evidence Science:In the Case of Changes in Research on the History of Qi Shan

学者一般多认为历史学、法学在本质上是证据科学,这似乎是一种无须证明的朴素认知。然而就历史学而言,自从古代"成一家之言"及"鉴戒史学"的史学传统,直至近现代历史学家对历史认识及历史叙事的理论反思,都不同程度说明了历史学与证据科学之间的界限泾渭分明。历史学界对琦善的讨论变迁过程,即是反驳历史学是证据科学传统认识的有力例证。法学对自身学科的理论省思,也有着语言学的转向,比如哈特"开放结构"的论述就为自由裁量权提供了理论支持。从学科理论与性质来说,法学与历史学都是要将自己的理解和解释贯穿到已掌握的文本或其他证据中,并以此讲述一个完整的故事。在两门学科的实践与操作层面中,史料与证据的留存选择也都是当事人理解和挑选的结果,而且都是依赖史料、证据这种"间接的故事"来发现问题并进行分析概括,在此基础上形成自己的一套理解与叙事逻辑。因此,无论是历史学还是法学,都不宜称为绝对意义上的证据科学。

History and law are commonly perceived as evidence science within their respective scopes. However, since the time when Sima Qian said that the ultimate ideal goal of historians was to "create a philosophy of their own", the theory of historiography has been steadily advanced by Chinese and overseas historians. This theory involves the understanding of the historical materials and the importance of the narrative factor of history writing. Changes in research on Qi Shan provide a potent example of refuting the traditional understanding that history is evidence science. The theoretical reflections of law on their own discipline have also experienced a linguistic turn, and researchers have begun to pay more attention to the description and narrative of society in the legal sense. From the perspective of the theory and nature of law and history, these two subjects are both aiming to apply their own understandings and interpretations to the selected texts or other evidence to tell a single coherent story. At the level of practice and operation of the two disciplines, historical materials and evidence are artificially selected through analysis and summarization. These two subjects both rely on these "indirect stories" to find facts. On this basis, they eventually present their own sets of understanding and narrative logic. Neither history nor law should be called as evidence science in the absolute sense.