中世纪法国律师职业伦理的建构  

The Construction of Lawyers’ Professional Ethics in Late Medieval France

作　　者：董子云 Dong Ziyun(School of History,Zhejiang University,Hangzhou 310058,China)

机构地区：[1]浙江大学历史学院,浙江杭州310058

出　　处：《浙江大学学报（人文社会科学版）》2022年第1期165-176,共12页Journal of Zhejiang University:Humanities and Social Sciences

基　　金：国家社科基金青年项目(21CSS026)。

摘　　要：12世纪法学复兴促成了律师职业在西欧范围内的兴起,也奠定了西方律师职业伦理的传统。这一理论体系可以分为两条主线,即律师是"骑士兼教士"以及"法官的奴仆"。其中,律师是"骑士兼教士"的命题引申出了不得违背良心而辩护的原则,决定了律师职业的社会地位、社会责任和得体服装等。而律师是"法官的奴仆"的命题则揭示了司法审判活动中法官和律师的主从关系,律师是帮助法官发现真相的工具。因此,律师应当仅仅陈述真相,不得以烦冗的讼词干扰法官判断,且必须具备得体的行为和情感。1274年起,中世纪法学中的相关伦理讨论不断渗透法兰西王国立法,其影响甚至超越了旧制度并延续至今。The renaissance of legal science in the Twelfth Century gave rise to a legal profession that was to prosper in the whole Western Europe. At the same time, the renaissance also laid the foundation of lawyers’ professional ethics in the West. With the gradual establishment of Romano-canonical procedure, the lawyers’ profession began to appear everywhere in France. A compatible professional ethics became, therefore, indispensable. The French professional ethics for lawyers came directly under the influence of the ius commune, absorbing at the same time teachings on professional ethics in the Roman law and the Canon law.Based on the previous contributions of James Brundage and Jacques Krynen, it seems to us convenient to reduce major points into two basic propositions, namely, the lawyer as both “the knight and the priest,” and the lawyer as “the servant of the judge.” The former proposition concerns the essence of the lawyer, while the latter concerns the lawyer’s function in justice. They encompass virtually all sub-propositions of the lawyers’ professional ethics as developed by medieval jurists.Firstly, that the lawyer is both the knight and the priest means, on the one hand, the lawyer’s status as militia litteratoria(hence only free men in sound shape and mind could become a lawyer) who should,with his libellus, fight for justice and only take the cases that are true and just. On the other hand, it means that the lawyer, as a priest by nature, should demonstrate his charity and mercy by helping the poor and widows in their litigations, listen to their clients and be loyal to them just like their confessor,and wear black toga, the typical dress of a priest. Secondly, the lawyer as the “servant of the judge”reveals the relationship between the judge and the lawyer in justice and judgement activities. The judge being the master, the lawyer should only be his instrument that facilitates his discovery of the truth of a case. The lawyer’s role is, therefore, auxiliary. He should only propose w

关 键 词：律师职业伦理 中世纪法国 中世纪教会法 中世纪罗马法 法律文化 

分 类 号：K565.3[历史地理—历史学] D956.5[历史地理—世界史] DD916.5[政治法律—法学]