法律之路
The Path of the Law

  • 作   者:

    小奥利弗·温德尔·霍姆斯
    Oliver Wendell Holmes

  • 出版社:

    外语教学与研究出版社
    Foreign Language Teaching and Research Press

  • 语   言:

    双语

  • 电子书:

    ¥12.90

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  •   读后感(1)

一次演讲,打开了法律世界的法门。

By the time of his essay The Path of the Law, Holmes had completed the evolution to a behaviorist theory of law. Whatever you may think of Holmes's jurisprudence, The Path of the Law is an unambiguously great exercise in legal philosophy; certainly it withstands the test of time much better than The Common Law. Laws should be written, we learn, from the standpoint of "the bad man," he who will do the absolute minimum necessary to avoid the sanctions of his neighbors. In other words, it must create objective standards, that do not depend on the personal virtue or goodwill of the citizens. When the law seeks to determine the "intent" of someone who committed an act for which he is on trial, it is not seeking to determine whether he meant to do good or harm. The law seeks to know only whether he knew what the results of his action would be. The inquiry can be made only by considering the defendant's observable behavior.

霍姆斯在《法律之路》中分析了法律中的五个道德词语并驱除它们的道德意味:权利、义务、恶意、故意和过失,义务是他主要针对的目标。尽管霍姆斯指出了法律形式主义的不足,认为政策和社会实际需要影响法律的发展,但他从来都不认为“不同价值间的选择可能被科学地证实,对霍姆斯来说,这种选择的仲裁者最终只能是赤裸裸的暴力”。

The Path of the Law by Oliver Wendell Holmes, Jr. was originally published in the "Harvard Law Review" in 1897.

小奥利弗·温德尔·霍姆斯(1841年3月8日-1935年3月6日)是美国诗人老奥利弗·温德尔·霍姆斯之子,是美国著名法学家,美国最高法院大法官。他以观点创新、论证严密著称,他权衡了财产权和多数人统治,并认为后者优先于前者。他是最早承认工人的工会权利的人之一,此前在判例中有法官认为工会组织从本质上就是非法的。

Oliver Wendell Holmes, Jr. (March 8, 1841–March 6, 1935) was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932, and as Acting Chief Justice of the United States January–February 1930. Noted for his long service, his concise and pithy opinions and his deference to the decisions of elected legislatures, he is one of the most widely cited United States Supreme Court justices in history, particularly for his "clear and present danger" opinion for a unanimous Court in the 1919 case of Schenck v. United States, and is one of the most influential American common law judges, honored during his lifetime in Great Britain as well as the United States. Holmes retired from the Court at the age of 90 years, 309 days, making him the oldest Justice in the Supreme Court's history.

我们研究法律,研究的不是什么神秘事物,而是一种大家都很熟悉的职业。我们研究的是,在出庭时或者如何向别人提供建议使其免打官司时,需要具备的知识。处理法律事务之所以能成为一种职业,人们之所以愿意付钱给律师以获得辩护或进行咨询,是因为在我们这样的社会,在某些情况下,法官受托代公众行使公共权力,在必要时会动用全部国家力量执行其判决与裁定。人们希望了解在什么情形下及多大程度上,他们会遭遇风险,即会与比他们个人强大得多的国家力量相对抗,于是,了解人们担心的这种风险何时会发生,便成为一种职业。因此,我们研究的目的,便是预测何时公共权力会通过法庭产生作用。

When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.

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