中世纪法国律师职业伦理的建构

12世纪法学复兴促成了律师职业在西欧范围内的兴起，也奠定了西方律师职业伦理的传统。这一理论体系可以分为两条主线，即律师是“骑士兼教士”以及“法官的奴仆”。其中，律师是“骑士兼教士”的命题引申出了不得违背良心而辩护的原则，决定了律师职业的社会地位、社会责任和得体服装等。而律师是“法官的奴仆”的命题则揭示了司法审判活动中法官和律师的主从关系，律师是帮助法官发现真相的工具。因此，律师应当仅仅陈述真相，不得以烦冗的讼词干扰法官判断，且必须具备得体的行为和情感。1274年起，中世纪法学中的相关伦理讨论不断渗透法兰西王国立法，其影响甚至超越了旧制度并延续至今。

The Construction of Lawyers’ Professional Ethics in Late Medieval France

The renaissance of legal science in the Twelfth Century gave rise to a legal profession that was to prosper in the whole Western Europe. At the same time, the renaissance also laid the foundation of lawyers’ professional ethics in the West. With the gradual establishment of Romano-canonical procedure, the lawyers’ profession began to appear everywhere in France. A compatible professional ethics became, therefore, indispensable. The French professional ethics for lawyers came directly under the influence of the ius commune, absorbing at the same time teachings on professional ethics in the Roman law and the Canon law.Based on the previous contributions of James Brundage and Jacques Krynen, it seems to us convenient to reduce major points into two basic propositions, namely, the lawyer as both “the knight and the priest,” and the lawyer as “the servant of the judge.” The former proposition concerns the essence of the lawyer, while the latter concerns the lawyer’s function in justice. They encompass virtually all sub-propositions of the lawyers’ professional ethics as developed by medieval jurists. Firstly, that the lawyer is both the knight and the priest means, on the one hand, the lawyer’s status as militia litteratoria (hence only free men in sound shape and mind could become a lawyer) who should, with his libellus, fight for justice and only take the cases that are true and just. On the other hand, it means that the lawyer, as a priest by nature, should demonstrate his charity and mercy by helping the poor and widows in their litigations, listen to their clients and be loyal to them just like their confessor, and wear black toga, the typical dress of a priest. Secondly, the lawyer as the “servant of the judge” reveals the relationship between the judge and the lawyer in justice and judgement activities. The judge being the master, the lawyer should only be his instrument that facilitates his discovery of the truth of a case. The lawyer’s role is, therefore, auxiliary. He should only propose what is true, and is prohibited to interfere with the judge’s activities by tedious and extremely lengthy pleadings. He should also be mature in his emotions and conducts, so as not to be a hindrance to the judge’s duty. There is an abundance of texts in the late medieval France that criticize and ironize the lawyers’ profession. According to them, bad lawyers reversed their relationship with the judge and became the master of the latter through their sophism and tricks, thus paralyzing the whole judicial system.Since the second half of the Thirteenth Century, the teachings of the ius commune found a place in the non-official coutumiers. And since the year of 1274, these teachings started to penetrate into royal legislations. Among them, the Ordinance of 1344 provides a synthetic regulation of lawyers’ professional ethics and code of behavior. An ordinance of 1364 makes it explicit the judge’s duty to appoint legal aid. The Ordinance of Montil-lès-Tours of 1454 defines the punishment for misconduct such as disturbing the court and frustratory dilatation. It also stresses on the duty of loyalty for the lawyers. These monuments of legislation in late medieval France were in no sense systematic, but rather promulgated on an ad hoc basis, designated to solve practical problems. But from these developments we may infer that the structure of the lawyers’ professional ethics laid down by the tradition of the ius commune saw progressively a fuller embodiment in secular legislations in the last two or three centuries of the Middle Ages, which is to culminate in the Ordinance of October, 1535.From a modern point of view, the rites and conducts required by these legislations may be contrary to the principle of equality; the punishment for the lawyer’s misbehavior may be too harsh. However, given the historical context, these regulations were meant to enforce judicial authority of the state; though they were never applied systematically, they were still the medieval responses to the needs that arose in different stages of institutional development. Besides, if we look at the contemporary codes of ethics for the lawyers’ profession in France and in Europe, it is easy to observe that some of the basic principles formed in the Middle Ages are still fundamentally relevant today.