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本来想把该书做成电子书与诸君共享,看来无此必要了。。。。。此贴到此为止吧。。。。
先给第一章 之一
Jurisprudence
When lawyers argue cases, or advise clients, or draft laws to meet specific social goals, they face problems that are technical, in the sense that there is general agreement within the profession as to what sort of argument or evidence is relevant. But sometimes lawyers must deal with problems that are not technical in this sense, and there is no general agreement on how to proceed. One example is the ethical problem that is presented when a lawyer asks, not whether a particular law is effective, but whether it is fair. Another example is the conceptual puzzles that arise when lawyers try to describe the law in concepts that are unclear. A lawyer may want to say, for instance, that law of torts holds men liable only for damage caused by their faults. Another lawyer man challenge this statement, and the issue between them may be a disagreement not about fact or doctrine, but about what fault means. Or two lawyers may disagree whether the Supreme Court, in the 1954 segregation case, was following established principles or making new law; and the issue between them may turn on what principles are and what is means to apply them. It is unclear how conceptual issues like these are to be resolved; certainly they lie beyond the ordinary techniques of the practicing lawyers.
Lawyers call these recalcitrant questions ‘jurisprudential’, and they disagree, as one would expect, on whether it is important to resolve them. Law schools generally provide special courses, called ‘Jurisprudence’ or ‘Legal Theory’ or something of the sort, devoted to their study, but since the distinguishing mark of these issues is just that there is no agreement on what sort of issues they are, and what techniques of study they require, these courses vary widely in the methods they use. The method chosen, moreover, influences the choice of the particular issues selected for study, though this choice is also affected by intellectual fashion and public affairs. Just now, for example, the question of whether men have a moral obligation to obey the law figures prominently in jurisprudence courses throughout the country; but two decades ago almost no one mentioned that issue.
Until recently the dominant approach to jurisprudence in England and America was what one might call a professional approach. The lawyers who taught jurisprudence recognized that jurisprudential questions, like those I have listed, were troublesome just because they were not amenable to ordinary legal techniques; but they proposed nevertheless to meet this difficulty by picking out this aspects of the questions that could be treated with these techniques while ignoring the rest. When lawyers deal with the technical questions I mentioned, they use a combination of three particular skills. Lawyers are trained to analyze statutes and judicial opinions to extract legal doctrine from these official sources. They are trained to analyze complex factual situations in order to summarize the essential facts accurately. And they are trained to think in tactical terms, to design statutes and legal institutions that will brigng about particular social changes decided upon in advance. The professional approach to jurisprudence tried to reformulate jurisprudential issues so that one or more of these skills could be brought to bear. This approach produced only the illusion of progress, and left the genuinely important issues of principle in the law untouched. |
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