早期普通法中的司法与王权——英国司法独立的“中世纪起源”的再思考

Judiciary and Kingship in Early Common Law——Rethinking of the Medieval Origins of English Judicial Independence

司法独立的起源,往往被追溯到中世纪英格兰的普通法法院.但对于普通法法院形成之初的诉讼个案的考察却表明,尽管这一时期的法院已脱离于国王的人身而“自主运行”,但并没有完全摆脱国王的干预.在涉及法律疑难与王室利益的重大案件中,国王仍然直接或间接地左右着判决的结果;即便是那些表面上看来不利于国王的判决,背后依然可能隐藏了更深层的政治利益的考量.这一时期的法官自主性仍然是非制度化的,也无法等同于现代意义的司法独立的起源。

The origin of judicial independence has always been traced back to the common law courts in Medieval England. However, the detailed case study of the early common law courts will show that the judiciary still had not been free from the interference of the king, although the courts had been running automatically. In the serious cases which involved the complicated legal issues and the king＇ s interests, the king still controlled the decisions directly or indirectly. Even the judgment seemed against the king, it still implied the underlying political consideration. The autonomy of common law justices was still non- institutional, and should not be seen as the origins of the modem judicial independence.