文献翻译：毕业设计（论文）译文及原稿
译文题目： 判断你的邻居：中世纪马赛当事人策略和证人陈述的重要性 原稿题目： Judging your Neighbor：Litigants’ Strategies and the Importance o
毕业设计（论文）译文及原稿
译文题目： 判断你的邻居：中世纪马赛当事人策略和证人陈述的重要性
原稿题目： Judging your Neighbor：Litigants’ Strategies and the Importance of Witness Narratives in Medieval Marseille
原稿出处:耶鲁大学法学院博士论文
判断你的邻居：中世纪马赛当事人策略和证人陈述的重要性
摘要：
本文研究了马赛1400-1430年包含证人陈述的法庭记录。本文认为，虽然当事人有策略的创造了一个连贯的个人陈述，但证人陈述并不总能支持这种连贯性。通常情况下，当事人和他们的证人的冲突揭示了一个事实，即什么样的邻居经过判断能被家庭、朋友所接受，并建立业务联系。对法官来说，证人出庭是为了建立一个法律要求的狭窄的真相。 对当事人来说，证人出庭是为了支持一个故事，并且表达他们影响当事人的法律后果的一个个人的立场。然而，作为仲裁人或者社会规范的教师，证人也有着更为广阔的自身意义所在。
1.马赛的法庭诉讼的意义
个人陈述是证人和当事人都会在法庭上使用的策略。最近的研究认为中世纪的当事人对法律有很好的理解能力；他们了解法律，了解如何制定法律，明白证人会参与他们呈现给法官的故事。不提如何定义谁是证人和不允许谁来作证，中世纪的历史学家很少注意到证人证言在中世纪刑事和民事法庭上的痕迹。这篇论文探讨了当事人陈述和证人证言的交叉。证人参与法庭调查，支持一方当事人而反对另一方，但他们也展现出自己判断当事人行为的社会态度。而这个标准可能会与马赛法律所提供的标准相抵触。
马赛的法庭诉讼展示了一个复杂的法律系统及其明确的规则。 法院设置了一种常见的法庭，在法庭上，工匠和贵族，基督教徒和犹太人，男人和女人的案件，不仅接受首席官员的判决，也接受他们各自证人的判决。这些未充分开发的证人陈述提供的新闻资料有助于历史学家们更好的理解中世纪的家庭、宗教和邻居间的关系。
2.证人所起的重要作用
"要解决一个问题，某种意义上可以称之为解决了一个犯罪问题——即谁杀了国王拉伊——出现了一个缺席古老荷马时代的标志性的新人物，牧羊人。虽然他是一个不重要的人，像躲藏在小屋里的奴隶。但牧羊人把他所看到的事物，把他拥有回忆之中的一个小片断，都用自己的嘴给说出来了，因此，他拥有了这些关键的证据来证明暴君的专横。证人，虽然是卑微的证人，即使在他看见和表述的真实中是如此孤独，他也能独自击败最强大的人。"（Michel Foucault, 2000: 33)
在文本研究中，虽然没有证人证言可以打倒国王或结束一个帝国，Michel Foucaul也认为卑微的证人手中握有重要的力量。从证人的角度研究，记录暗示看起来无能为力的人手中往往握有意想不到的力量。一个富有的地主的法律策略可能取决于贫穷的农业工人，他们为有争议的土地付出的劳动和谁出钱购买他们的服务，使他们成为类似话题的专家。对土地所有者来说，他们是很明显的证人。文献翻译法官和对方当事人认为证人的贫困可能使他们为了金钱而撒谎。这种不信任发生在法律程序的任何阶段，法院会公正的询问证人，是否有任何当事人影响或教唆了他们的证言，他们是否接受了这种影响或教唆。对法官来说，最重要的是明白，要基于事实作出决定。 本文研究的目的不在于证人如何被“教”，而是他们如何“教”。证人证言可以教给我们许多平凡人的行为和标准，而不是法律精英或牧师在讲坛所宣扬的。
证人出庭，告诉旁观者和对方当事人他们的所见所闻。他们参与宫廷里的，刑事法庭的审讯，或在上诉法院的时候，当事人认为他们的知识对案件会有帮助。即使受到风俗和法律对证言的限制，证人在法官和公证人面前，也拥有巨大的言辞的力量。对法官来说，证人出庭以支持事实真相，或法律主张。对当事人来说，证人出庭来证明他们的故事，表达证人对当事人的任何的个人立场。然而，作为仲裁人或者社会规范的教师，证人也有着更为广阔的自身角色的意义。
请看下面几个关于证人证言的案例：当Honorata Fabresse描述她的对手为惯于吵架斗殴的人，并且认为他不适合作为她孙子的监护人，她的证人向法官提供了关于这个男人爱争吵的多个实例。而Silona Calverie的证人告诉公证人她日益疏远的丈夫是个赌徒，他们重述了他让她露宿街头的夜晚的情况。Lazarus Raynardi的证人证明他无力在加泰罗尼亚暴徒入侵时保护满是贵重物品的盒子。所有的这些证人证言的意义不只是对主要脚本的补遗；他们也代表了邻居们对Honorata, Silona和Lazarus的判断，和他们不赞成对手的行为。他们对一方当事人的支持是对另一方的谴责。这个故事表明在马赛，人们在法律的正式禁例之外，作出自己关于婚姻、父母和商业关系的判断。证人担当法官的角色，不是法律规定，而是行为和角色确定的。Antonius和Antonieta de Curtibus的邻居们一定以为Moneta Mede在他们的关心下会得到比她自己一个人更好的照顾，即使限制她留在家里违反了马赛的法律。不同于负责市政法规和罗马教廷法律传统的那不勒斯人，邻居和目击者的证言被纳入了记录他们同意或反对某种行为的纪录中。
3.当事人与证人之间的关系
当事人和证人之间的关系十分复杂。根据法律传统，当事人通过原告起诉书和被告答辩书的陈述控制法律事实。法官和公证人通过警告证人来限制他们基于上述两个文件对事件的评论，最重要的是，限制他们所做的事。然而证人的行为并不总是符合当事人的期望。当事人不能完全相信证人会支持他们的整个故事，在某些情况下，当事人甚至可能因为他们对证人的选择而后悔。有时候证人是沉默寡言的，他们频繁的回应“她什么都不知道”足以证明这一点。有时当他们作证时，他们的描述与当事人在诉状中描述的场景不同。当然Margarita de Altu不希望她的证人证明她对偿还债务的积极性不高，Jacmona Elie故意选择了一个证人，该证人的言辞直接与她试图讲述的、关于她父亲最后一个愿望的故事相矛盾。
这两个例子表明即使在控制最严格的程序中，意料不到的情况也可能会出现，并进一步暗示证人可以讲述他们自己关于法律事实的看法。例如在债务诉讼中，证人的支持可能带有自己渴望得到偿还的欲望，同时邻里纠纷案件中的证人可能更多的关心邻里之间的和平而不是站在法律的一边。法律要求证人支持特定的一方，因为他们在案件某些方面具有专业知识与技能，但是证人自己的动机会干扰他们的证言。
对证人来说，不受法官判决的事实所束缚，这几乎是一种解脱。在中世纪的历程中，它成为惋惜资源匮乏的一种隐喻，但是也许这也是一种庆祝的理由。最重要的是，既然我们无法知道法官如何判决，我们可以自由的思考关于当事人脚本和证人叙述之间的分歧。在我看来，证人陈述提供了一个机会，让我们来更好的理解中世纪的人们如何判断对方。没有理由可以解释为什么十三名男女愿意为Silona Calverie作证，如果他们认为女人和丈夫离婚，管理她自己的嫁妆是一个丑闻；或者为什么九位公民会支持Hugueta争夺监护权，如果他们认为祖母不应该负责孙子的生活。无论法官如何宣判，这些证人证明了他们在支持或反对某些人的行为中扮演了重要的角色。
Johannes Calverie没有召集一个单一的证人。也许这是因为，就像他争辩的，他认为Silona的案子是愚蠢的，没有好处，他不想浪费时间和费用来培养证人。或许，他也不能找到愿意提供出借姓名和身份的男人或女人。在这个案例中，他是一个被描绘为败家子的男人，他的所有邻居见到他反抗了来释放他被囚禁的妻子的政府官员。缺乏证人支持表明他的邻居共同决定审判他的行为，而无论法官是否正式作出了审判。
4.马赛制度的现今意义
15世纪马赛的法庭记录引用了至少两套不同的标准。法官决定当事人是否违反了罗马教廷的市政法令。证人探寻诉讼当事人的诉讼是否支持社会习俗。关于Margarida Gramone温柔照顾孩子，逐渐变得贫穷的证言赢得了法官的同情，但是她邻居的证词才能显示出她是否像他们所期望的那样尽到了母亲照顾孩子的责任。马赛的法律规定，拍卖商何时可以向什么人拍卖商品，但是同Cathonus的生活同样重要的是，证人的证言证明了他的正直，并让他的对手受到了怀疑。
社区和司法标准可能是相同的。比如上面提到的案例，也许法官Augustinus Peleti会依照Silona的叙述，宣布反对Johannes Calverie的要求并支持Silona控制自己的嫁妆和分居。Moneta Mede的邻居担心她喋喋不休的行为会影响街区的声誉，市政法令则有一些令人讨厌的规定，比如一对亲兄弟在名流聚集的街区应该独立生活。然而像Silona Calverie这样类似的案例，法官和她的邻居都想要减小案件的影响，从而实现马赛的平静，虽然他们实现这种平静的方法往往会不可避免的伴随着一些激烈的冲突。
Judging Your Neighbor: Litigants' Strategies and the Importance of Witness Narratives in Medieval Marseille, 1400-1430
Abstract
This study examines Marseille's court records from 1400-1430 that contain witness narratives. It argues that, while litigants had strategies to create a coherent self-presentation, witness narratives did not always support this coherence. Often this conflict between litigants and their witness reveals what neighbors judged to be acceptable behavior in families, among friends, and in business. For the judge, a witness came before the court to establish the truth of a narrow, legal claim. For the litigant, the witnesses appeared to bolster a story and lend whatever status they had to the litigant's consequence. The witnesses, however, also had a much broader role as an arbiter or a teacher of social norms.
Self-representation was a strategy in the courts used by the witnesses as well as the litigants. Recent studies have argued persuasively about the legal savvy of medieval litigants; they knew the law, manipulated the law, and involved witnesses in the creation of the story they were presenting to the judge. Beyond defining who were and were not permitted to act as witnesses, medieval historians have paid little attention to the witnesses' testimony in medieval criminal and civil court trails. My dissertation explores the intersection between a litigant's self-presentation and the witness narratives. Witnesses who participate in trials support one side over another, but they also present social attitudes in passing judgment on the behavior of the litigants. The standards may compete with those offered by the laws of Marseille.
The court proceedings in Marseille demonstrate a sophisticated legal system with its set of clearly delineated rules. The law courts provided a common forum in which artisans and nobles, Christians and Jews, men and women made their cases and were judged not only by the presiding officials but by their supporting witnesses. These under-explored /fuwu/yingyufanyi/ witness narratives offer news material by which historians may better understand medieval standards for familial, religious, and neighborly relationships.
Conclusion
To solve a problem that is, in a sense, also a problem of contestation, a criminal issue ---- who killed King Laius ---- there appears a new figure, absent from the old Homeric procedure, the shepherd. Though a man of no importance, a slave holed up in his hut, the shepherd saw what he saw,and because he possesses that little fragment of a recollection, because in his discourse he bears the evidence of presumptuousness of the tyrant. The witness, the humble witness, solely by the action of the truth he saw and he utters, can single-handedly defeat the most powerful of men.
While none of the witnesses whose narratives made their way into this study brought down a king or ended an empire, Michel Foucault's placement of significant power in the hands of a "humble witness" is apt. An examination of the records from the perspective of the witnesses suggests there were moments of unexpected power or agency in the hands of those who were often powerless. The legal strategy of a wealthy landlord could hinge on a poor agricultural worker, whose labor on the disputed land and his certainty about who paid him for his services made him an expert on the topic. He was for the landowner an obvious choice of witness. The judge and opposing litigant thought that the witness' poverty made him likely to lie for payment. This mistrust was codified in the procedures of each deposition, when a court notary asked the witness if any of the litigants influenced or suborned their testimony, if they had been doctus or docta, subornatus or subornata. For the judge, occupied withe rendering a decision based on truth and facts, this was important to know. For the purpose of this study, however, the interesting question is not whether the witnesses were coached to taught, but what they taught. Their depositions have the power to teach us much about conduct and standards from the perspective of ordinary people, not legal elites or priests in their pulpits.
The witnesses appeared in court to educate bystanders, the opposing litigant, and the judge about what they had seen and heard. Their participation in a trial before the palace court, the criminal court, or the court of appeals signified that litigants thought they had knowledge that would be helpful to their case. Even with the constraints custom and law imposed on their narratives, witness came before the judge, or notary, holding a great deal of power within their words. For the judge, a witness came before the court to establish the truth of a narrow, legal claim. For the litigant, the witnesses appeared to bolster a story and lend whatever status they had to the litigant's consequence. The witnesses, however, also had a much broader role as an arbiter or a teacher of social norms.
When Honorata Fabresse portrayed her opponent as quarrelsome and said he was unfit to be the guardian of her grandson, her witnesses supplied the judge with multiple examples of the man's brawling ways. Silona Calverie's witnesses told the notary that the estranged husband was a gambler, and they recreated the night he threw her out on the street. Lazarus Raynardi's witnesses confirmed his inability to protect a box full of valuables in the fact of marauding Catalan invaders. All of these witness narratives were more than supportive addenda to the master script; they also represented their peers' judgment on Honorata, Silona and Lazarus and their disapproval of their opponents' behavior. Their support of one side of the litigation was a condemnation of the other. The narratives suggest that people in Marseille made their own judgments about marriages, mothers and business relationship outside of the formal prohibitions of the law. Witnesses played the role of judges, not of the law, but of behaviors and characters. Antonius and Antonieta de Curtibus' neighbors certainly thought Moneta Mede was better off in their care, tied or not, than on her own, even if keeping her in their home was a violation of Marseille's laws. Unlike the iurisperiti who were responsible to the municipal statutes and the Romano-canonical legal tradition, the neighbors and eyewitnesses whose narratives are woven into the records established their own sense of the behavior of which they approved or disapproved.
The relationship between a litigant and witnesses was a complicated one. According to legal tradition, the litigants controlled the story, with the plaintiff's tenor articulorum or the defendant's interrogatoria. Judges and notaries warned the witness to confine their remarks to the matters raised in the two documents, and, for the most part, they did. Yet the witnesses did not always perform according to the litigant's expectations. Litigants could never be entirely sure that their witnesses would support their entire story, and in some cases, they might even have had cause to regret choosing the witnesses they did. Sometimes the witnesses were uncommunicative, as the frequent response "She says that she knows nothing" attests. Sometimes when they spoke, their narratives countered the scenario the litigant had painted with their articles. Surely Margarita de Altu was not expecting her own witnesses to suggest she was less than prompt in repaying her debts, nor did Jacmona Elie purposefully call a witness whose testimony directly contradicted the story she was trying to tell about her father's last wishes.
These two examples demonstrate how the unexpected can creep into the most highly regulated procedures, and further suggest that witnesses could have their own stories to tell. In debt litigation, for example, witnesses' support could be tinged with their own desire to be repaid, while witnesses in a case arising from a neighborhood squabble might be more concerned with restoring peace to their corner to the city than supporting the side more in line with the law. Witnesses were called to support one particular side in a dispute because of their assumed expertise about some aspect of the case, but the witnesses' own motivations infused their narratives.
It is almost a relief to be unburdened by the fact of the judge's ruling. It has become a trope in works of medieval history to bemoan the lack of sources, but perhaps this can also be cause for celebration. Since, for the most part, we cannot know how the judge ruled, we are free to speculate about the ramifications of the disjuncture between the litigant's master script and the witness narratives. In my view, witness narratives offer an opportunity to understand better hwo medieval people judged each other. There is little reason why thirteen men and women would have agreed to testify for Silona Calverie if they thought a woman separated from her husband and in charge of her own dowry was a scandal, or why nine people would have supported Hugueta's fight for custody if they thought grandmothers should not take charge of their grandson's lives. No matter how the judge ruled, these witnesses suggest that they played the important role of broadcasting their approval of certain actions and their disapproval of others.
Johannes Calverie did not call a single witness. Perhaps this was because, as he argued, he thought Silona's case was silly and without merit and he did not want to waste the time or the expense in cultivating witnesses. Or perhaps, he was unable to find men and women who were willing to lend him their name and status. In the case, he was a man portrayed as a violent spendthrift, whose entire neighborhood saw him defy the city officials who had arrived to release his wife from her captivity. His lack of supporting witnesses suggests his neighborhood's communal decision to censor his behavior, whether or not the judge did so more formally.
Johannes Calverie
The court records from fifteenth-century Marseille reference at least two separate sets of standards. The judges determined whether or not litigants had violated Romano-canonical law municipal statutes. The witnesses' explored whether or not the litigants had upheld community mores. Margarida Gramone's description of the tender nursing which gradually impoverished her might have been calculated to win a judge's sympathy, but her neighbors' testimony revealed whether she acted according to their expectations for mothers with sick children or not. Marseille's statutory law regulated auctioneers, telling them when and to whom they could auction goods, but as important to Cathonus' livelihood were the witnesses to testified to his probity and called his opponent's story into question.
Community and judicial standards may coincide. Perhaps the judge Augustinus Peleti, in accordance with Silona's narratives, ruled against Johannes Calverie and granted Silona control over her dowry and a marital separation. Moneta Mede's neighbors worried about the effect her unruly behavior might have on the reputation of their "good street", and the municipal statutes recognized that unsavory elements like brothers should be kept separate from respectable streets. Yet her case, like that of Silona Calverie's, illustrates that while both judges and neighbors might have wanted calm to prevail in Marseille, their methods accomplishing peace might conflict.
Even without a direct conflict between a neighborhood's will and a judicial decision, communities had more invested in certain behaviors and attitudes than did a judge who sat in Marseille for only one year. Determining the qualities of a good parent, a devoted nephew, or an honorable friend was less of a concern to the judge than it was for a neighborhood that hoped to run smoothly. Marseille's court records provide the material for an exploration into what kinds of behaviors a neighborhood was willing to do it.