明清诉讼并不以律例为准据,“庶不与律例十分相背”一语,道出了律例仅仅作为一种宽泛的制约因素而存在。“律例规避”案和“非必然因果关系”案表明,对争讼各方利益的均衡考量才是诉讼的根本准据。正是情理、律例与利益平衡之间错综复杂的关系,才造成了“依法审判”的假象。在“依法审判”之争的背后,凸显的是我们对西方法律和诉讼模式的执着。实际上,确定性的保障并非只能靠“依法审判”一途,明清诉讼正是在对利益平衡的追求中实现自身诉讼和法律的确定性。 The Ming and Qing litigation is not based on the law, and the phrase “is not very contrary to the law” indicates that the law exists only as a broad constraint. The case of “rule avoidance” and the case of “non-consequential causality” show that a balanced consideration of the interests of all parties to a dispute is the fundamental basis for litigation. It is precisely the intricate relationship between reason and law and the balance of interests that has created the illusion of “trial according to law.” Behind the “trial by law” debate highlights the persistence of Western law and litigation. In fact, the certainty guarantee can not be judged only by “judging according to law”. It is precisely in the pursuit of the balance of interests that the lawsuit in the Ming and Qing Dynasties realized its own lawsuit and legal certainty.