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长期以来,伦理司法被看做中华法系的一大特征。但在清代关于犯奸行为的地方法律实践中,表面上由妇女贞节观的礼教思想主宰着的伦理司法,内里却贯穿着与现代法律实践和理论相一致的逻辑。这一内在的逻辑是由清代法律实践在处理犯奸案件中面临的司法资源不足的条件决定的。而且,正是这一约束条件还决定了这种内在一致性要呈现为与现代法律话语迥异的外在形态,因为在司法资源不足的前提下,压抑法律的专业性程度,利用道德教化手段反而是更有效率的。
For a long time, ethical justice has been regarded as a major feature of the Chinese legal system. However, in the local legal practice of adultery in the Qing dynasty, the ethical justice dominated by the ritual and religious ideology of the concept of the chastity of women inherently runs through the logic consistent with modern legal practice and theory. This inherent logic is determined by the legal practice of Qing Dynasty in the treatment of adultery cases facing the conditions of inadequate judicial resources. Moreover, it is precisely this constraint that also determines the internal form of such internal consistency to be quite different from that of the modern legal discourse, because under the premise of insufficient judicial resources, the degree of professionalism of the law is suppressed and the means of moral education is used instead It is more efficient.