唐律中的「理」－断罪的第三法源

The "Reason" in the Tang Code

唐律乃至唐令条文中，常见到「理」，就立法意旨而言，泛言其义者多。从唐律看来，「理」实是律、令（含格、式）之外第三种具有法律效力的断罪依据，使犯人无所逃於天地之间。其义基本上仍须由先秦典籍，尤其儒家经典去理解，间参唐以前诸儒立论，因为这是当时人的基本教养与共识。浅见以为唐律中的「理」，广义指道理，狭义为义理。唐律本於礼，此处之礼，析而言之，具有三义：礼之仪、礼之制、礼之义；唐律中的理，大多指礼之义而言，尤其是礼所规范人际关系的义理社会价值。理不可为而为者即有罪，以此法意断罪，影响至明清律，是传统法制一大特质。但因「理」为抽象意义，具有不确定性，不免受到後人诟病。

The word ”Reason” appeared frequently in the Tang Code or Statues. It was discussed with a wide range of meanings regarding its usage as a legal term. Seen from the Tang Code, ”reason” was in fact an alternative criteria for court judgment in addition to ”code” and ”regulation” (including rules and forms) with legal authority. It was designed to bring the criminals to justice. This arrangement of ”reason” could be understood through the pre-Qin Classics, especially the Confucian cannons, combined with the discussion of the pre-Tang Confucianists. There was a ”consensus” and shared upbringings among the Tang contemporaries regarding the ”reason”. My understanding of the ”Reason” in the Tang Code was that it was ”the Way and Truth” in general and the ”righteousness” in particular.The making of the Tang Code was based on ”propriety”. Here the ”propriety” could be interpreted from three ways: the rituals, the institutions and the righteousness. The ”reason” of the Tang Code mostly was referred to the last meaning, ie, the righteousness of the propriety. It regulated the inter-personal relationships and social values. If one committed an act which was forbidden according to the ”reason”, then he was considered as a criminal and would be brought to court and sentenced. This kind of practice had influenced the making of the legal code of the Ming and Qing dynasties and was a characteristic feature of traditional Chinese legal history. However, since the ”reason” is very abstractive and has no fixed definition, it has been inevitably criticized and even denounced.