法及其限度：宋代法律訴訟中的斷案哲學與抵牾判決

Law and Its Limits: Judicial Philosophy and Conflicting Verdicts in Song Dynasty Legal Cases

柏清韻(Bettine Birge)

《興大歷史學報》 18期 (2007/06) Pp. 185-192

https://doi.org/10.29624/CHJH.200706.0008

並列摘要

Much fine research done in China and other countries has established the advanced and sophisticated nature of the Song legal system. Scholars have used case records and other documents to show in detail changes in the written law over time, the operation of the trial system, the application of the appeals process, and the enforcement of dynastic laws. Much attention has been directed at ascertaining what the law actually said, so as to determine state support for such things as women's property rights, patriarchal authority within the family, inheritance practices, etc. This paper will examine instead the different ways in which judges interpreted the law. It will explore the area of legal practice beyond the reach of codified law, where judges had to exercise personal judgment to arrive at a final verdict.
All judges claimed to base their decisions on current dynastic law; nevertheless, judges frequently disagreed with each other, and cases were often overturned on appeal. Such conflicting verdicts can be attributed to differences between individual judges' opinions, values, and priorities, what in today's American legal practice is called ”judicial philosophy.” In this essay, I will explore differences in judicial philosophy in the Song and how these differences could result in conflicting verdicts.
A review of Song cases reveals a number of different approaches to the law. Some judges placed high priority on enforcing codified law as they understood it, even if this went against their own values. Others, most notably those who promoted Learning of the Way Confucianism (daoxue 道學), show a willingness to disregard
the law to promote what they regarded as a higher morality. Still others gave priority to reaching a decision that all parties could accept, based on considerations of human feelings. Song judges themselves articulated some of these differences and discussed in their writings the challenge of balancing various factors in reaching a decision.
All of this points to the complexity of Song society and the contention and disagreement that existed over many issues. In this regard the Song legal system faced challenges remarkably similar to those faced by legal systems around the world today.

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