摘要
宋代女性土地权利主要来源于赠予或继承,宋代对女性土地权利的保护秉持重视实际效果的整体性法律理论,女性的土地权利在立法和司法层面都得到一定体现和保障。为了追求仁政、维护孝道,裁判者常常会突破律典规范的限制,对女性土地权利有诸多保护性体系化司法解释。宋代女性土地权利之所以能得到法律保护,主要在于其特殊的社会语境:家庭、劳动地位提高扩大了女性实际权利,孝道提升了女性尊长的法律地位,理学尚未对女性土地权利产生实际约束力。借鉴宋代女性土地权利保护整体性法律理论及体系化司法解释方法,有利于从中国传统法文化中汲取给养,完善当下女性土地权利保护法律机制。
In the Song dynasty,women’s rights to land were mainly derived from gift or inheritance.The protection of women’s land rights was based on a holistic legal theory that emphasized practical effects,and these rights were reflected and guaranteed at both the legislative and judicial levels to a certain degree.In order to pursue benevolent government and maintain filial piety,judges often broke through the limits of the legal code and provided many systematized judicial interpretations protecting women’s land rights.The main reason such rights were protected by law under the Song was their special social context:women’s real rights were expanded by their improved status in the family and their position in labor.The principle of filial piety elevated senior women’s legal status,and Neo-Confucian teaching were not yet binding on women’s actual land rights.Drawing on the Song dynasty’s holistic legal theory of the protection of women’s land rights and their systematized judicial interpretation is a way of using traditional Chinese legal culture to improve today’s legal arrangements.
出处
《中国社会科学》
CSSCI
北大核心
2022年第7期187-203,208,共18页
Social Sciences in China
