论传统语境中的讼师及其与律师的关系

Pettifoggers in the Traditional Context and Their Relationship with Lawyers

讼师的基本职能是助人诉讼。在有法制的社会里,诉讼是不能避免的,助讼是客观需要的。问题是,这与古代中国主张息讼、追求无讼的治国理想相抵触,因此讼师备受歧视和打击。不料,讼师非但没有消失,反因其处于非法状态、不受规范的引导和约束,而易于为非作歹。畸形存在的讼师彰显的是制度的缺陷,讼师并非生性恶劣,也不是全都恶劣,对他们的过分褒、贬都是不恰当的。清末以降,律师取代了讼师。律师与讼师当然很不相同,但又是具有共通性的,将两者联系起来辨识,或许有助于对它们的理解。

The basic function was to help people in a lawsuit. In a society of rule of law, it is inevitable to have lawsuits and help in a suit is also practical need. The problem is that it conflicts with the ideal pursuit of dropping a suit and hawing no suit in the ancient China. Consequently, pettifoggers met with discriminations and attacks. Unexpectedly, however, they did not disappear, instead, they stayed illegally without any guidance and regulations, and tended to commit crimes, which was the consegwence of the systematical defficiency. But it is not appropriate to ouerpraise or overcriticize the pettifoggers, because they were not born indecent, nor were they all indecent. From Qing Dynasty, pettifoggers were replaced by lawyers, who have both resemblance and difference with them. The article tries to distingwish the two groups so that we can have a better understanding.