《唐律疏议》中的“法”考辨

A Textual Research on Use of “Fa” in the Tang Code

《唐律疏议》中的“法”出现频次极高、分布极广,绝大多数表达了与“法律”相关的含义。各篇“序疏”中的“法”指称较为广义的“法律”、较为抽象的“法”或特定法典及其篇目;律典条文中的“法”表述形式复杂,但整体特征清晰,皆有明确的规范指向,即指称律、令、格、式以及其他法律渊源中的具体规范。“罪法”“理法”“正法”等较为特殊的表述形式,仍与“法”表意的整体特征及具体用法一致。以“法”指称具体规范是立法或注律的常规模式,此种指称围绕“正刑定罪”展开,是传统法发现、论证具体规范不可或缺的技术手段。

The term “fa” in the Tang Code appears very frequently (1128 times) with a wide range of senses, and in most cases (99%) it expresses the meaning related to “legislation” (1115 times). The specific meanings of “fa”, a typical legislative term in legal codes, needs to be sorted out, in view of the rich senses of “fa” itself, and its being used in such fixed expressions as “li fa” and “de fa” in the official histories, classics and their annotations, as well as the profound influence of academic terms such as “qing li fa” and “fa li” since modern times. It s difficult to classify and sort out the meaning and usage of “fa” in the provisions of the Tang Code , as the specific expressions of it are complex and it is frequently used. However, the overall characteristics of the expression of “fa” are relatively clear in view of the system and structure of the Tang Code . The “fa” in each “preface” refers to a more general “legislation”, a more abstract “law” or a specific code and its contents. This usage of “fa” to express “legislation” and related meaning only accounts for 3% of the total cases (30 times), and used in this general sense it does not refer to any specific actor, a certain behavior or any sentencing details. The expression of “fa” in the provisions of the code has explicit normative directions, that is, referring to specific norms in lv, ling, ge, shi and other legal sources. This specific usage of “fa” accounts for 97% of the total cases (1085 times), and it usually involves the “conviction and sentencing” of specific actors and their behavior. There are no such expressions as “li fa”, “de fa”, “qing li fa”, or “fa li” in the code. We do not find it is used to express abstract and generalized meaning after analyzing some special expressions in which it is used, including “zui fa”, “li fa”, “zheng fa”, among others. These special expressions in the Tang Code are consistent with the overall characteristics of the usage of “fa”. Using “fa” to refer to specific norms is the conventional mode of legislation or law annotation. As a typical legislative term in legal codes, “fa” is not used to express abstract and generalized sense or theory. Behind its conventional narrative model, it is a process of discovering, demonstrating, and accurately applying legal norms in an objective and specific legislative style. Specifically, what “fa” in the provisions of the Code refers to is a highly operational and technical norm. The purpose of using “fa” to refer to specific norms is to supplement or improve a provision in the process of sentencing. The process of finding and establishing legal norms and accurately applying them is also the technical approach to impose “the punishment fitting the crime”.