判詞的法律世界—白居易「百道判」新釋

Abstract

白居易「百道判」大致都是他中舉登科之後，準備應吏部「書判拔萃科」科目考之前的習作，並且後來在「選人」之間被當作範本流傳。但學界或有將「百道判」視為白居易為官期間的判案彙編者；或有僅視之為「戲謔之作」者。其實兩者都是嚴重誤解。 筆者已將「百道判」每道判文「擬題」的「出處」初步考究完成，確認白居易自訂的每道判題均有所本，或出於律典、或出於經書、或出於正史；少數判題出處兼及其他子部文獻。筆者並就白居易對每道判文的個別回答作出分析，因而對「百道判」有較全面認識，並深以為白居易「百道判」蘊藏著豐富的法制史料和白居易個人法律推理的準則和對禮教秩序的看法，值得深入剖析。 本專書寫作計畫希望在這樣的基礎上，進一步將近年來筆者所蒐集與分析的研究成果，與已經發表的若干論文，共同集結並增補部分成果以及判文箋解，期能完成《判詞的法律世界—白居易「「百道判」新釋義」》一書，俾能讓學界可以更瞭解、並能更充分地運用「百道判」所蘊含的豐富史料，及其所彰顯的唐代法律課題。

The so-called “Pan” was one of the examination subjects in T’ang Dynasty. The questions of the “Pan” were usually formulated from the lawsuits or historical affairs in the historical literatures. Written by Bai Jü Yi, “Bai-Dao” legal precedent was an exercise in composition after he passed the preliminary but before he attended the final examinations held by the Judiciary. This legal precedent was so popular that it was considered as a typical copy circulated by the examinees. However, it was a misleading by taking this precedent as an official omnibus of legal precedents. The scopes of the “Bai-Dao legal precedent” were divided into two categories. The first category is the criminal cases and the cases of the negligence due to the administration. The second one was the maintenance of the order and law under the Confucianism. Those lawsuit cases belonging to the first category reflected the spirits of Bai Jü Yi as an honorable person of law-abiding. For those lawsuit cases in the latter category, they reflected his ultimate intention to maintain the ethical code under the Confucianism. The final sentences were affected by the statutes of the lawsuit cases. In the event that the lawsuit cases were originated from the legal documents, the verdicts were usually based on the legal standards. If they were emerged from the scripture of the Confucianism, Bai Jü Yi’s attitude was apparently in accordance with the instructions given by the Saints. However, if they were from the ancient records, then it seemed that he had much space to express his own thoughts free from all inhibitions. Through this writing program ,I wish that we can better understand and can more fully use of " Bai-Dao legal precedent ".Because it contain profuse historical data and much more of the Tang Dynasty legal issues.