法治与王权的博弈:布雷克顿的实践

发布时间：2018-08-13 11:52

【摘要】：西方法治思想延续至中世纪,在英国获得了里程碑式的转型发展,其标志就是1215年《大宪章》的签署和13世纪中叶布雷克顿《论英格兰的法律与习惯》一书的面世与传播。布雷克顿的法治思想集中体现在他有关王权的论述中,他认为国王并无绝对立法权,法律的渊源在于民众的意愿。布雷克顿最重要的法治论断是"国王不应低于任何人,但应在上帝和法律之下",这一论断的论据在于他坚信国王是"上帝的代理人"以及"法律造就国王"。布雷克顿的思想同现代法治理念还有一定差距,但是他已经触及到法治理念的核心——约束权力,这使他在西方法治的传承中占有重要地位。"依法治国"是同"法治"相等的术语,法律不应当作为"牧民"的工具,要实现依法治国关键不在于"治民"而在于"治权",对西方法治传统的研究对我国建设法治国家意义重大。
[Abstract]:The western thought of rule of law continued to the Middle Ages and achieved a landmark development in England. Its symbol was the signing of the Magna Carta in 1215 and the publication and dissemination of Brekton's book on the Law and Customs of England in the middle of the 13th century. Brekton's idea of rule of law is embodied in his discourse on Wang Quan, who believes that the king has no absolute legislative power, and that the source of the law lies in the will of the people. Brekton's most important rule of law argument is that "kings should not be inferior to anyone, but under God and the law." the argument was that he believed that kings were "agents of God" and "made kings by law." Bracton's idea is still far from the modern idea of the rule of law, but he has reached the core of the idea of rule of law-restraint of power, which makes him an important part of the inheritance of the rule of law in the West. " "governing the country according to law" is the same term as "rule of law", and the law should not be used as a tool for "herdsmen". The key to rule the country by law lies not in "governing the people" but in "governing the power". The study of the tradition of western rule of law is of great significance to the construction of a country ruled by law in our country.
【作者单位】：华东政法大学法律学院;
【基金】：国家社科基金2011年度重大项目“法律文明史”(项目批准号:11&ZD081)第1个子课题“法律文明的起源”的阶段性成果
【分类号】：D909.1

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