法律之路
The Path of the Law

  • 作   者:

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

  • 出版社:

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

  • 语   言:

    英文

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  • 电子书:

    ¥5.90

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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.

1897年11月8日,时为美国麻省最高法院法官的霍姆斯在波士顿大学法学院发表了一篇题为《法律之路》的演讲。这是他一生中的最著名的一篇演讲,在西方法学中,特别在美国法理学历史上这篇演讲产生了巨大的影响。后这篇文章被载于《哈佛法律评论》(1897年)第10卷上。

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.

  • The Path of the Law

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