摘要
传世文献中的"例"常与"比"通用、互训,表意中蕴含着相同情况相同处理的逻辑思维方式.竹简秦汉律中的"比"是律无明文的前提下通过"比类"指向罚则的过程,唐律中的"例"是通过"比"所指向的规范."例"是定罪量刑过程中"比"的固定化与条文化,也是"比"发展到一定历史阶段的产物.当规范体系中的"例"逐渐具有稳定的效力,"比"的适用空间便会越小.《唐律疏议》中的"例"就律篇结构来看集中于《名例》;就律条结构来看集中于"律疏"."例"最主要的用法是表达通则性规范或"法例",其形成及适用效力的展开始终表现于制定法体系内部,明确的法律条文始终是案件裁断最终与最重要的依据,就立法表达的态度来看,并不存在"判例"与"先例"直接发生效力的空间.
Abstract
The"li"in ancient literature often explains itself to"bi","tong","lei","fu"and"bi li""bi fu"and other fixed expressions are commonly seen."Bi"emphasizes the observation process for different objects."Li"regularly expresses such relations like"tong""lei"and so on between different objects through the observation."Li"does not need to be generalized through abstract thinking,but only to make the judgment of whether"tong""lei"to different objects.The logical way of thinking of handling the same situation in the same way is implied in the expression.Before the Han Dynasty,the re-cords related to norms,regulations,and judicial trials in the official history,classics,and their commen-taries were mostly expressed in the form of"bi",while the commentaries on"bi"as"li"were mostly found after the Han Dynasty,especially in the Tang's commentary."Li"is not seen in the legislation on a bamboo slip of Qin and Han dynasties,while"bi"is commonly seen.As the language of legislation,the"bi"is the process of directing penalties by"bi lei"under the premise that the law is not explicitly written.The gradual increase in the frequency of"bi lei"in the criminalization and sentencing process has contributed to a gradual fixation of the penalties to which they are directed."Li"in the Tang law is the fixation and regularization in the criminalization and sentencing process,also a product of the devel-opment of"bi"to a certain historical stage.As the"li"in the normative system gradually takes on a sta-bilizing effect,the room for the application of"bi"will be less.The number of"li"appearing in the Tang Law is so large,involving many articles and complex forms of expression,that it is difficult to sys-tematize them by a single criterion.In terms of the structure of the Laws,the distribution of"li"is con-centrated in the《Ming Li》;in terms of the structure of the Laws,the distribution of"li"is concentrated in the"annotations of law".The content of the articles is objective and specific in listing the modes of conduct,penalties and principles of conviction and sentencing,with the inherent disadvantage that the coverage of the specific articles is limited.In the case of acts that are not covered by the law and that need to be punished,"bi lei"is used to direct to the norms of the law that criminalize and sentence simi-lar acts.The development of the legal system is,on the one hand,a gradual accumulation of legislative provisions and,naturally,on the other hand,a gradual and frequent application of"bi lei".This is due to the nature of traditional criminal law,which has not evolved in the direction of abstraction and general-ization.The frequent application of"bi lei"leads to repeated"bi lei"to certain provisions that have taken on the character of"fa li",i.e.,general norms.In the process of centralized annotation of the law,these elements will appear in the regulatory system with a special marking.The most important use of"li"in the Tang law is to express general norms or"fa li",and the process of formation and develop-ment of"li"and the operation of their application effects are always expressed in the system of enacting laws.The process of formation and development of the"li"and the operation of their applicability is al-ways manifested in the system of law-making,and clear legal provisions are always the final and most im-portant basis for case adjudication.As far as the attitude expressed in the legislation is concerned,there is no special term in the Tang law that affirms the validity of"jurisprudence"and"precedent",and"ju-risprudence"and"precedent"have not had a decisive influence on the development of the legal system.The specific legal provisions laid down in the legislation are the starting point for the emergence of general norms or"fa li",which ultimately take the form of legal provisions and serve as the basis for the adjudi-cation of cases.
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