明清律典“例分八字”源流述略——兼及传统律学的知识化转型  

The Origin and Development of “Li Fen Ba Zi”in the Code of Ming and Qing Dynasty——Also on the Knowledge Based Transformation of Traditional Legal Theory

作　　者：吴欢[1] 

机构地区：[1]南京师范大学法学院,南京江苏210023

出　　处：《法律科学（西北政法大学学报）》2017年第3期41-49,共9页Science of Law：Journal of Northwest University of Political Science and Law

基　　金：国家社科基金重大招标项目:(14ZDC023)法治文化的传统资源及其创造性转化研究;国家社科基金一般项目:(10BFX020)宋代司法传统的理性与经验;教育部人文社科基地重大项目:(08JJD820161)唐宋社会变动与法律变化研究

摘　　要："例分八字"是中国传统律学和律典中的固有词汇,最早约见于宋人傅霖撰《刑统赋》,是对历代律典中最常用的"以"、"准"、"皆"、"各"、"其"、"及"、"即"、"若"八字的提炼总括,后经宋元律学家进一步疏解释义。《大明律》始附"例分八字之义表"于"名例律",《大清律》沿袭此制并将其位置进一步提前。"例分八字"的立法语言和立法技术的实质,是为解决成文法传统下法意与法条、法律与情伪之间的永恒矛盾,其从宋元至明清的源流轨迹和播迁过程,也在一定程度上说明了明清时期刑事立法技术的提高和律学学术的发展,以及明清立法语言的规范化和法律知识传播的广泛性。在这背后,则蕴含着传统律学从"人伦理性"走向"技艺理性"之知识化转型趋向。＂Li Fen Ba Zi＂ was an inherent vocabulary in the traditional Chinese legal theory and law books that could at least be found in Fulin- research book named Xing Tong Fu for the first time in Song dynasty. It was a refining to eight words that most commonly used in previous dynasties＇ law books, such as ＂Yi＂, ＂Zhun＂, ＂Jie＂, ＂Ge＂, ＂Qi＂, ＂Ji＂, ＂Ji＂ and ＂Ruo＂, and it had been further interpreted by the legal scholars of Song and Yuan dynasty. The Da Ming Lv was beginning with a ＂Li Fen Ba Zi＂ table in the General chapter. The Da Qing Lv followed this legislation instance and put the table further ahead. ＂Li Fen Ba Zi＂ was also widely seen in the legal theory books, the law practitioner＇s secret manuals, daily books, and notes novels, etc, in the Ming and Qing period. These carriers and their publication elevated ＂Li Fen Ba Zi＂ ＇ s status, enriched its connotation, and expanded its spread. As a legislative language and legislative technology, ＂Li Fen Ba Zi＂ ＇ s essence was to solving the eternal contradiction between the spirit and the articles as well as the law and the reality under a statute law tradition. Its origin and development trajectory and migration process also illustrated the improvement of the criminal legislation technology and the development of the legal academic to some extent, as well as the standardization of legislative language and the universal dissemination of legal knowledge in Ming and Qing period. Further more, it had indicated a knowledge based transformation about the traditional legal theory from ethics based reasoning type to skill based reasoning type .

关 键 词：例分八字 明清律典 传统律学 成文法传统 知识化转型 

分 类 号：DF092[政治法律—法学理论]