情理司法抑或经权司法:立足宋代的理论与实践辨正

Ethical Reasoning-Based Judiciary or Confucian Principles-Based plus Circumstance-Contingent Judiciary:An Examination Based on the Judicial Theory and Practice of the Song Dynasty

情理司法通常被作为传统中国司法的代表性模式来讨论,但这种学术概括存在时空局限和理论缺憾。在时空上,情理司法说主要提炼自明清司法实践,难以融贯解释此前,尤其是宋代的司法模式。在理论上,它难以解释情理司法源于何种理论及其在整个国家司法制度中的功能、作用和旨趣等核心问题,还会带来理论误导和价值遮蔽。追根溯源,情理司法根源于传统经学中的经权理论。传统经权理论在宋代获得了实质性发展,从中可以提炼出义统经权、权即是经、情时而权、圣贤行权等创新性命题。宋代士大夫官僚作为新经权理论的倡导者和推动者,将其引入司法实践,形成了具有时代特色的经权司法模式,并呈现为怀法用权、缘情用权、相时用权三种运行机制。宋代经权司法是在守法的前提下,因个案之情、理、时等因素而行权裁判,目的是补救机械守法裁判之弊,让司法合于中道价值。由于经权司法主要体现为缘情理而行权,所以常被称为情理裁判,进而被概括为情理司法。正本清源而言,宋元明清时期的经权司法是儒家经学影响司法实践的典型形式,与汉唐时期的春秋决狱共同构成了帝制时期传统司法中的救弊型司法,二者均属于特别司法模式。

The ethical reasoning-based judiciary is often discussed as a representative model of traditional judiciary,but such an academic generalization has limitations in terms of time,space,and theoretical understanding.In terms of time and space,the theory of ethical reasoning-based judiciary is mainly derived from judicial practices in the Ming and Qing dynasties,making it difficult to explain earlier judicial models,especially those of the Song Dynasty.In terms of theory,it is difficult to explain the theoretical origins of the ethical reasoning-based judiciary and its functions,roles,and intentions within the entire national judicial system,leading to theoretical misinterpretations and value obfuscation.Tracing its origins,the ethical reasoning-based judiciary originated from the traditional Confucian principles-based plus circumstance-contingent judiciary.This theory underwent substantial development during the Song Dynasty,yielding innovative propositions such as the integration of Confucian principles with circumstances,the equivalence between Confucian principles and contingency on circumstances,the dynamic nature of Confucian principles,and the exercise of authority by sages.As advocates and promoters of the new theory of Confucian principles-based plus circumstance-contingent judiciary,the scholar-official bureaucrats of the Song Dynasty introduced it into judicial practices,forming a distinctive model of Confucian principles-based plus circumstance-contingent judiciary characterized by three operating mechanisms:exercising authority in accordance with the law,exercising authority based on circumstances,and exercising authority in accordance with the times.Confucian principles-based plus circumstance-contingent judiciary during the Song Dynasty involved exercising judgment and authority based on the circumstances of individual case,Confucian principles,and timing,aiming to remedy the shortcomings of mechanical legalistic judgments and ensure that judiciary aligns with the values advocated by the doctrine of the mean.Since Confucian principles-based plus circumstance-contingent judiciary mainly involves exercising authority based on circumstances,it is often referred to as ethical reasoning-based adjudication,which is then generalized as ethical reasoning-based judiciary.In essence,Confucian principles-based plus circumstance-contingent judiciary during the Song,Yuan,Ming,and Qing dynasties was a typical form of Confucianism-influenced judiciary practice,constituting a remedial judiciary of the imperial period along with the Spring and Autumn Period judicial system,both of which were special judiciary models.