本文試圖進入歷史的語境，以「同情的理解」觀察傳統中國的司法。在瞭解傳統律學的特點，傳統司法的目標與困境的基礎上，通過對法條（應然）與《刑案彙覽三編》的部分案例（實然）的解析，考察清代的法律方法，尤其是法無明文時，司法者如何進行法律發現，其中也會涉及到「比附援引」與刑罰修正之間的關係。筆者的結論是：傳統司法要求「引斷允協」與「情罪相符」，前者要求能夠援引適當的法條，後者乃追求個案的公正；傳統法條以「客觀具體化」與「絕對法定刑」?特徵，兩者間存在緊張關係。客觀具體化的立法與條例的滋彰使得法條過於僵硬，難以涵攝具體事實，絕對法定刑與具體問題具體處理之間更無法協調，因此，在司法實踐中，比附得以頻繁的運用。比附不僅僅是一般的類推，它還是一種發現、論證罰則的手段，有很強的創造性。它以「事理相同」與「情罪一致」作?相似性的基準，在傳統立法技術無法取得突破的情況下，得以去發現、論證法條與罰則。當然，這種基準的判斷乃建立在司法經驗之上，並通過審轉制度的完善加以限制。

This paper represents an attempt to enter an historical context and examine traditional jurisdiction in China from a sympathetic point of view. With a keen awareness of both the characteristics of the traditional study of law (luxue) and the objective and difficulties of traditional justice administration, this paper investigates Qing judicial methodology through an analysis of legal articles (the law as it ought to be) and several cases from the Xing An Hui Lan San Bian (the law as it actually is). It will focus on cases where the relevant laws were not applicable and jurists had to resort to legal findings; it will also touch upon the relationship between the use of "analogy" (bi fu yuan yin) and the penal modification. The author concludes that traditional jurisdiction demands both citing relevant legal articles and matching the crime with a corresponding situation. The former refers to the application of the appropriate legal articles and the latter, the pursuit of justice in each particular case. Traditional law is characterized by "objectivity and concreteness" and "absolute legal penalty," which are in conflict with one another. The legislation and regulation of "objectivity and concreteness" lend to the excessive rigidity of the law, making it difficult to apply to actual circumstances. Even more difficult is balancing "absolute legal penalty" with the perplexities of each case. For this reason, the use of analogy was routine in judicial implementation. Analogizing was not merely reasoning by comparison, it was also a very creative means by which to discover, expound upon and prove punitive provisions. It called upon the like standards used in equivalent situations and demanded that the situation correspond to the crime. Analogizing enabled jurists to discover, expound upon and prove the rules of punishment, where traditional legislative techniques had failed to do so. Naturally, the determination of such standards was founded on judicial experience and was restricted by the perfect system of judicial rehearing.