中国古代的皇权与法律以隋代前期为例的实证分析

中国古代的皇权与法律以隋代前期为例的实证分析

A Positive Analysis of the Earlier Stage of Sui Dynasty

    期刊名称：《法学研究》
    期刊年份：
    作者：张先昌
    单位：江苏大学法学院
    中文关键词：皇权;隋开皇律;隋文帝
    英文关键词：
    中文摘要：
    皇权与法律的关系在常态下，表现为皇权支配法律，法律又限制皇权；法律维护皇权，皇权又尊重法律，二者相互制约又相互协调。中国传统社会有着较为完善的限制皇权的制度，也有着严格的立法和司法程序。隋代前期的历史典型地反映了这个特征。那种认为在中央集权君主专制条件下君主言出法随，任意赏罚，其权力不受法律约束的观点是不正确的。
    英文摘要：
    The relationship between royalty and law is one of the important contents of state political relationship in both antiquity and modern times. In the political normality of China’s feudal autocratic monarch system, law is governed by royalty while royalty is limited by law, and royalty is protected by law while law is respected by royalty, they check and harmonize with each other. There exist a fairly perfect system to limit royalty and strict legislative and judicial procedure in China’s traditional society.To the relationship between royalty and legislation, emperors of feudal dynasties played a decisive role in three crucial sectors of legislation, that is, the decision of compilation, the order of revision and the promulgation of law. In this mean, the state that “law deriving from emperor” is proper. But from the view of the process of compilation, legal system, frame, concrete clauses, and the final legal version are the collective wisdom of the legislative ministers, and the emperor only approves, agrees and puts it into action. In this mean, the state that “law deriving from emperor” is not proper, at least, it is not in line with history. The author maintains that this ancient legislative way could be prescribed as “common legislative system by emperor and ministers”. As to the relationship between feudal royal power and judicature, most of the earlier emperors of each dynasty can abide by law and establish royal authority through law. When royal power conflicted with law, emperors can accept the ministers’ expostulations and abide by law. This is due to the lesson from the former dynasty, the edification of Confucian and the limitation of legal provisions and systems. To the emperors themselves, as for the relationship between power and law, their earlier stage was also better than later stage. It is nearly a law in China’s feudal time that earlier emperors abide by law but later emperors ruin law. Key words: royal power, “Kai Huang Lv” of Sui dynasty, “law deriving from emperor”, “common legislative system by emperor and ministers”
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