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在法律史的研究中,研究者面对不同类型的史料,应该首先考虑史料本身的特性和形成过程,而不是将所有史料都用作判断某种权利之有无和地位之升降的证据。宋代“寡妻妾无男者承夫分”的法律,在明初一变为“妇人夫亡无子守志者,合承夫分,须凭族长择昭穆相当之人继嗣”。不仅寡妇从亡夫财产的继承人,变成了嗣子财产的托管人,寡妇在立嗣上的自主权也被宗族所侵占。立嗣从家庭事务,转变为宗族事务。明中期以后,国家又通过条例,限制宗族的权力。这一法律变迁的过程,不仅是宋以来士大夫倡导的宗族大发展的产物,同样也需要在户籍赋役制度变化的脉络中理解。士大夫的宗法理想与国家意志、社会现实之间的矛盾与融合,既体现在法律的变化上,也体现在官员的判牍、族规的修订和民众的诉讼行动中。判牍不仅是官员司法实践的记录,更反映了士大夫观念的改变及复杂性,而族谱和诉讼档案则记录了法律在现实的纠纷和诉讼中,被不同的主体不断利用和诠释的实际状态。
In the study of legal history, facing different types of historical materials, researchers should first consider the characteristics and formation process of historical materials themselves instead of using all the historical data as evidence to judge the existence and status of certain kinds of rights. In the Song Dynasty, the law of “no widow of widowed concubines” did not become a lawyer in the early days of the Ming Dynasty. . Not only did the widow become heir from the heir of the deceased’s property, but the widow’s autonomy in the establishment was also invaded by the clans. The heir goes from family affairs to clan affairs. After the middle of Ming Dynasty, the state passed regulations to limit the power of clans. The process of this legal change is not only a product of the great clan development advocated by the literati since the Song Dynasty, but also needs to be understood in the context of changes in the household registration system. The contradiction and integration between the ideal of patriarchal clan and the will of the state and the social reality are reflected in the changes of law as well as in the judgments of officials, revision of clan rules and civil actions. Judgment is not only a record of the judicial practice of officials, but also reflects the change and complexity of the concept of scholar doctor. However, the genealogies and litigation records record the actual state of law constantly being used and interpreted by different subjects in the real disputes and litigations.