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针对白凯在《中国的妇女与财产:960—1949》一书第二章提出的“强制侄子继嗣”和“贞节崇拜”理论,本文主要提出了三点批评:第一,“强制侄子继嗣”理论源于白凯对明代法律制度的误读;第二,寡妇意愿在立嗣诉讼中受到官员重视,实际上是古代继承法人情原则的体现,而不代表寡妇具有某种特殊权利;第三,明代的寡妇守贞现象,并非因为贞节崇拜赋予了明代寡妇某种特殊权利,二者都是明代“母”的形象得到强调的后果,而“母道昭彰”的新图景重构了明代立嗣诉讼中的人情原则。总之,本文希望跳出权利问题的框架,提出理解古代继承法的另一种可能性。
In view of the theory of “Forced nephew heirs” and “Chastity worship” put forward by Bai Kai in Chapter Two of “Chinese Women and Property: 960-1949”, this article mainly puts forward three criticisms: First, The theory of “forcing nephew heirs” originated from Bai Kai’s misunderstanding of the legal system in the Ming Dynasty. Second, the will of widows to be taken seriously by officials in establishing litigation is actually an embodiment of the principle of goodwill in ancient inheritance and does not mean that the widow has some Thirdly, the phenomenon of the widowhood in the Ming Dynasty was not given to the widow of the Ming Dynasty because of chastity worship. Both of them are the consequences of the emphasis on the image of the Ming dynasty and the motherhood, The new picture reconstructs the principle of human nature in the Litigation in Ming Dynasty. In short, this article hopes to jump out of the framework of the issue of rights and put forward another possibility to understand the ancient law of succession.