情理法的融貫──清代中國的裁判理念及其當代思辨

當代臺灣社會裡，仍時而可以聽到「情理法」或「天理人情國法」的說法，認為法院審理案件時，眼裡不能只看到法律，應該要注意「法律不外乎人情」，兼顧情、理、法的要求。此種法意識，是漢人傳統法文化的遺緒。為了瞭解此種「情理法」觀的歷史脈絡及其背後的法文化意義，本文首先立基於清代情理法的相關研究成果上，以較體系化的方式，呈現情理法的作用與彼此的關係，並且探討情理的操作方法，補充既有研究尚未清楚說明的問題點。然後，重新把目光拉回對於當代法文化的關懷，探討情理法在傳統裁判與當代裁判中的深層差異，思考「情理」在當代臺灣法律文化中的定位。在具體的論述上，本文先肯定清代中國的裁判中將情、理、法同時當作法源，並且以情理法的融貫作為裁判的理念。接著，說明情理二者之間的調整和情理法三者之間的融貫，都是運用「經權互濟」的方法，並指出情理操作的制度性制約。最後，思辯情理在清代中國與當代臺灣裁判中的不同定位，以及「情理法的融貫」與「依法審判」背後連結的兩種人類觀和不同的秩序正當化原理。

關鍵字

情理；天理；人情；依法審判；經權

並列摘要

In the society of present-day Taiwan, we hear from time to time the phrases "Sentiment, Rationality, and Law" (qing li fa 情理法) or the "Natural Principle, Human Sentiment, and State Law" (tianli renqing guofa天理人情國法). These phrases mean that in deciding a case, one cannot take account only of the law but should also remember that "law does not exist beyond human feeling"; and one must take into consideration sentiment and reason as well as law. The thinking that underlies such judiciary practice is inherited from the traditional judiciary culture of the Han Chinese. In order to understand the historical context and the significance of the legal culture that informs the principles of "Sentiment, Rationality, and Law," this article first builds upon existing research on "Sentiment, Rationality, and Law" in the Qing Dynasty to present more systematically their function and their interrelations; as well as investigating their application. It thus clarifies some points in the literature that have thus far remained unclear. Secondly, returning its attention to contemporary legal culture, this article interrogates the deep-seated differences between traditional and contemporary legal judgements and reflects upon the position of "sentiment" and "rationality" in present-day Taiwan judicial culture. Concretely speaking, this article confirms the application of "Sentiment, Rationality, and Law" as bases for legal judgements in the Qing Dynasty, as well as the the coherence of "Sentiment, Rationality, and Law" as a judicial concept undergirding judgements. It then explains that the adjustment of the weighting of "Sentiment and Rationality" and the coherence of "Sentiment, Rationality and, Law" in judgements were the means of implementing the principle of "Rebalancing Constancy and Expediency" (jing quan huji 經權互濟); and highlights the systemic limits of the application of sentiment and rationality. Lastly, this article distinguishes the different standing of "Sentiment and Rationality" in legal judgements in the Qing Dynasty and in modern-day Taiwan, as well as the two different ideas of humanity and the different legal orders that lay behind and are linked to the principles of "Coherence of Sentiment, Rationality and Law" and "Adjudication According to Law" respectively.