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发表于 2007-10-1 02:32:12
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既然这个法谚有明确的出处,为了不至于误解太多,还是应当适当看看霍姆斯当初说这句话的上下文。基于片言只语的理解——更不用说是翻译文本——往往会有(严重)误解的危险。
霍姆斯的普通法一书网上到处可见(中文译本应当也不难得),这句在中国到处被引用的话,就座落在第一章第一段:
The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.
从这一段中可以看出,霍姆斯把三段论推理和(概念或理论)体系一致性看作该法谚中“逻辑”的所指,而“经验”,则广泛地包含“The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men”,而绝不可误读为法官的个人经验,和认识论上的经验主义似乎也无直接关系。
另外,读读上下文,也可以知道“法律的生命”中“生命”的意思和“啊,朱丽叶,你是我的生命”中生命的意思并不等同。从该段的前四句话就可以大致看出,霍姆斯所指法律的生命为法律发展变化的内在推力。
正如ly188兄所转贴的张芝梅氏全文所清楚表明的,霍姆斯这句话并不是对法律中逻辑力量的否定。 |
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