南宋基层社会的法律人——以私名贴书、讼师为中心的考察

Attorneys in the Local Society of the Southern Song Dynasty:Focusing on Law Clerks and Lawyers

南宋州县私名贴书为编制外招募的狱吏,与所谓的正名吏人不同。由于任职的稳定性和狱讼业务知识的常年积累,这一群体逐渐趋于世袭化、专业化。他们在地方司法审判过程中常常起着重要的作用。"讼师"在中国历史上作为一个正式的职业称谓出现于南宋后期。他们因为民众司法诉讼的需求而存在,但又受到政府的无情打压,始终处于名不正、言不顺的尴尬地位。私名贴书和讼师具有同一性,很容易互换角色。他们游走于官民之间,既有坑害民众的一面,又有维持社会秩序的一面。这些法律人在南宋基层社会的法律秩序构建中扮演了不可或缺的角色,并对后世法律生活的走向产生了重要影响,成为明清时期刑名幕友和讼师最初的历史源头。

Jail clerk （Simingtieshu） of prefecture and county in the Southern Song dynasty was a kind of hired jailer without official identity, and whose identity was different from the clerk with official identity. Stability of job and accumulation of lawsuit knowledges led to this group becoming a hereditary and professional group who played important role in local lawsuits. Lawyer as a formal carreer appeared in the later Song dynasty, they existed because they could serve to people in lawsiut, but meanwhile they were under great pressures of government, occupied an awkward position without official support. Jail clerk and lawyer both are the products of social changes in the Tang and Song dynasties, they have common features and are interchangeble easily. Standing between officials and the people their activities could be harmful to the people yet meanwhile be positive to maintain social order. They were indispensible actors in legal order construction of local society in the Southern Song, had exerted important influence on legal life trend of late times, became sources of legal staff and lawyers of the Ming and Qing dynasties.