中世纪及近代早期英格兰普通法和习惯关系初探

A Preliminary Study on the Relationship between the Common Law and Customs during the Medieval and Early Modern Period

在中世纪及近代早期英格兰,普通法与大量特别习惯同时并存、长期延续是不争的事实。考诸普通法理论及其司法实践可发现,无论在普通法成型时期,还是在后续的年鉴时期、普通法心智时期,普通法与习惯均不是简单地共存,而是形成了错综复杂、多样多变的关系,令人难以揣测。普通法形成初期,习惯与普通法并存混用,共同发挥作用;年鉴时期,习惯越来越成为普通法的对立物,分属彼此的两个系统逐渐成形;普通法心智时期则呈现出普通法向习惯回归的明显趋势,二者权威性检验标准最终归于一处。尽管如此,若在英格兰非成文法的大背景下,站在普通法法律人的角度观其大略,则仍有规律可循:普通法与习惯更多地表现出同一性而非差异性;普通法向习惯的回归标志着普通法的成熟;普通法多变的态度是要在法律权威与民众诉求之间寻找一个平衡点。

During the medieval and early modern period,it was an indisputable fact that the common law and a vast array of customs had always coexisted there in England and this condition continued for a long time.Looking deeper into theories and practices of the common law shows that this relationship was far more complex and variable than simple co-existence.In the early stages of the formation of the common law,the two had the same meaning and were often used interchangeably in documents;in the year-book period,customs were increasingly regarded as the opposite of the common law,and the common law and customs were gradually incorporated into different systems respectively,namely,the inner system and outer system;during the period of common law mind,there was a significant tendency that the common law returned to customs to increase its level of authority,but ironically,the two finally subjected to the same criterion of validity.In the background of English unwritten laws,common law lawyers did find some useful techniques to cope with the relationship with customary laws,such as,achieving some kind of uniformity of practice while reserving differences;returning to customs when necessary,which was not a sign of failure,but maturity;finding a balance between common law authority and basic demands of the people.