“祖制”的法律解读
朱勇“祖制”的法律解读
Legal Interpretation of “Zu-Zhi”
期刊名称：《法学研究》
期刊年份：
作者：朱勇
单位：中国政法大学法律史学研究院
中文关键词：祖制;祖制-律令体系;祖制驳议
英文关键词：Zu-Zhi;the "Zu-Zhi & Law-and-Decree" system;refutation mechanism of Zu-Zhi
中文摘要：
中国古代在国家治理与社会控制方面，以先皇祖训为内容的“祖制”发挥着重要作用。祖制作为有约束力的行为规范，其调整范围涉及国家权力的分配与制衡、朝廷运行机制、重大事件决策、重要职官任免、朝贡外交等。祖制主要通过由皇帝主持的“祖制驳议”机制来实施。在规范形式上，祖制多以诏令、上谕等先例、惯例的方式存在，较多保留春秋以前非法典化、非公开化的法律神秘主义特征。祖制初步具备国家根本法的性质，其与普通律令既有分工，又有衔接，共同构成中国古代完整的法律体系：“祖制-律令”体系。祖制的存在，适应中国古代尊祖孝亲的宗法传统，弥补了因皇位世袭导致国家治理制度的重大不足，同时，也对律令体系的完善产生消极影响。
英文摘要：
"Zu-Zhi", namely rules made and institutions created by ancestors with instructions of past emperors as its main content, played an essential role in both state governance and social control in ancient China. As binding codes of conduct, Zu-Zhi covered the distribution and balance of state power, the court operation mechanisms, major decision-making, the appointment and removal of important officers, as well as tributary diplomacy. They were mainly implemented through the "Zu-Zhi Refutation Mechanism", presided over by the emperor. Zu-Zhi often took the forms of imperial order, imperial edict and other kinds of precedence and practice, and most of them maintained the non-codified and non-public legal mystic features of the pre-Spring and Autumn Period. They had the nature of primitive fundamental state law. Zu-Zhi and common decrees had different functions but were linked to each other, and together they formed a complete legal system in ancient China, that is the "Zu-Zhi & Law-and-Decree" system. Zu-Zhi were consistent with the patriarchal clan system featuring respect for ancestors and family members in ancient China and solved the serious problems in the dynastic governance system caused by the hereditary system of throne. Nevertheless, they also had negative impacts on the improvement of the law-and-decree system.
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