摘要
秦至清帝制时代法律的本质特征,是帝王们口含天宪,朕即法律,诏书、敕令、谕旨、御笔手诏,皇帝任何形式的言语、思想表述,都是法律或法律依据。帝王不仅具有立法的专断性权力,而且具有随时随意立法的便宜。专制帝王是唯一的立法主体,而法律的适用主体则仅仅是臣民,不存在针对天子、帝王犯罪的任何立法,皇帝本人超然于法律之上,享受法权的绝对独裁。立法的核心原则在于维护皇权的尊严,确保皇权对社会的全方位控制,强化帝王的绝对权力。在司法实践中,皇帝直接涉入司法,控制司法最终审判权;在地方政府层面的制度设计中,始终实行政权与司法权的统一,以保证皇权对司法权的绝对控制。帝王对立法权与司法权的独断,从一个方面证明了秦至清社会的皇权专制性质。
During the long history from the Qin to Qing dynasties,the essential nature of Chinese legal institutions was emperor's monopoly of legislation.An emperor was the supreme legislator whose edicts,decrees,instructions,letters,whatever he expressed in any form,would function as laws or legal guides.Emperor as the one and only legislative authority had arbitrary power of enacting laws and could make law as he wished at any time.Laws were enacted to control subject-populace,no law was enacted against an emperor or his crimes.An emperor was beyond law sanction and he enjoyed absolute autocracy.The core principle of making a law was to protect the integrity and dignity of imperial power,to ensure all-sided control of society,and to strengthen emperor's absolute power.In judicial practices,emperors became commonly involved in case judgments as the ultimate decision-maker.In local level,political power and judiciary power were united,thus ensured imperial power's absolute control.Emperors' monopoly of legislative and judiciary powers reflects the imperial absolutism in Chinese society during the times from Qin to Qing.
出处
《古代文明》
CSSCI
2016年第3期55-75,共21页
The Journal of Ancient Civilizations
关键词
中国法制史
皇权专制
口含天宪
以敕代律
朕即法律
Chinese legal history
royal absolutism
supreme legislator
decree as law
emperor's will as law
