Holmes: the legal road (Zhang Qianfan)

Authors: Oliver Wendell Holmes
Translation: Professor Zhang Qianfan, PhD, Nanjing University School of law government

[Abstract] in the law circles, American Federal Supreme Court justice Holmes is a well-known figure. In the last century, the economic, social and legal American at critical stages of development. Life have made outstanding contribution in that era of justice Holmes in all fields of America law, and exert a profound influence on the later development of law. From the public to the private, everywhere left his indelible footprints. In the field of contract law, he used the traditional concept of "think" led to a "realistic" (or "objectivism") revolution, after the development of scholars such as William Houstton and become the mainstream theory of contract law, still ruled the USA jurisprudence. In the field of constitutional, legal standards he development of freedom of speech in between the two world wars, and actively protect the Constitution gives a few leftist party of freedom in American. Although Hough's ideas were not accepted by the court majority at the time, but insists he on rational persuasion finally make his lonely opposition won court and social identity. Of course, people can not forget his famous assertion in 1905 against the Locle v. New York state: "social statics Constitution did not have Herbert Spencer" "." Holmes is undoubtedly a great judge, and each filled to capacity, ability and confidence judges are more or less on the mediocre showing contempt some instinct; but he is aware of his life in a democratic society, people and things should be mainly through their own or by their elected representatives make them think wise laws to management, and should not be opinionated judges take everything on oneself. He put the democratic spirit of the times into his judicial philosophy, so he always wore noble robes can harmoniously with many ordinary people stand together.
　　
Holmes was not only an outstanding judge, or a scholar (which of course in common law system is not a bit strange). Needless to say, his "common law" is always a must read law researchers; almost everyone knows the book in hundred-percent empiricism started saying that sentence. But the legal basic thought of Holmes in fact has been expressed in the famous 1897 article in the jurisprudence. This is a speech he slipped the Massachusetts State Supreme Court in Ma serving for the Boston University School of law. Although not long, it can be said to include all essence Khodorkovsky's legal thought. Here, he takes a judge's knowledge analysis of the four interrelated perspectives: paying attention to reality (and current) results that law should be independent of pragmatism, which differs from the moral neutrality, the external behavior (rather than the inner state of mind) as object, exploring the experiences of objectivism to (rather than purely logical deduction the basis of positivism). His eloquence from discussion, we see a respect for tradition of the common law judges to the traditional (often empty and poor) historical explanation does not meet, a realist jurists in pursuit of ideal legal status, and expectations in a legal way to open up the pioneer of the industry later people. Holmes in this article that the start of the prediction function of the law, and he claims that a surprising foresight. Today, as the economics of law and sociology of law (or one day the true meaning of "the science of law") rise, said Holmes in more than one hundred years ago that throughout twentieth Century and the future direction of development of law, perhaps not too much.
　　
In a famous dissent, justice Holmes was "not more powerful words to express my (freedom of speech) belief" to apologize. Here, we also can not use more accurate and concise Chinese expression to judge Holmes thought to apologize, and to improve the hope in the academic circle.

[The speech text]
　　
When we study the law, our study is not a secret, as everyone knows but one's occupation. Our study is to appear in court should need something, or in some way to persuade others not to engage in a lawsuit. It was an occupation, people paid to lawyers for the defense or legal advice, but because in some cases, such as the society such as ours to the exercise of public power entrusted to the judge, and if necessary, all state power will be used to perform their judgment. People always want to know: in what circumstances and to what extent, they will run the risk of offending to the much more powerful than their own power. Therefore, make sure that risk should make people and step back to become a kind of occupation at what time. We study the purpose of the law is to predict the probability of prediction by means of public power -- on the implementation of the court to take effect.
　　
In USA and British, research method is a set of decision, monographs and legislation; they can be traced back to six hundred years ago, but now every year hundreds of growth. They are like witch's leaves, the accumulation of the past scattered prophecies; usually in the case, was an axe. They can be regarded as legal oracles to a proper extent. The most important and beautiful part, new efforts so far every legal thinking, its significance lies in the fact that almost all of these predictions are more accurate, and they are summarized as a complete system of relationship. The lawyer statement on the case, this process is to eliminate his client exaggerated inclusion person narration, retaining only the important law in fact, the final analysis and abstraction until the theory of law. A lawyer is not to mention his client in the contract when wearing a white hat -- though Mrs quickly but doomed to a long and minute statement on the boundless land, because he foresaw no matter what his client's head wear, the public power will operate in the same manner. The last case teaching is the interpretation of universal propositions, and collected books, or legislation was adopted common form, but in order to make the prediction more easy to remember and easy to understand. Basic rights, obligation law concerned only with prediction. The confusion between law and Morality -- on which I'll talk about -- one of many consequences, is the theory tends to "horses, inverted" (Note: "put a car in front of the horse", a causal inversion --.) That is what the rights or obligations in violation consequences and independence, and then to this kind of behavior to punish. But I will try to show, here the so-called legal obligation is nothing, but only a prediction: if a person does or neglected to do something, the court will make him in this way or that kind of pain; legal rights can also be said.
　　
After obtaining the induction and the formation of a system, we predicted that the number is not large enough to difficult to deal with. They represent a finite system of dogma, but within a reasonable period of time to be mastered. The number of reported decisions of fears grow with each passing day, it is a great mistake. In a given jurisdiction, a generation of person's judgment report basically involves legal system completely, and use modern restated. If the previous all burned, we can still from their reconstruction a law. Based on the previous judgment report is the main historical material, this I will end in the previously explained.
　　
For these we call legal dogma or systematic prediction research, for those who want to use as the law occupation tool to predict people according to their wishes, I hope I can make some of the first principle, and related to this study, I hope to present one of our law has not yet been reached. The ideal.
　　
Take something as an occupation to understand, first of all need to understand their limitations, and therefore I thought it necessary to point out and eliminate the confusion between law and morality; this confusion sometimes rises to the height of a theory of consciousness, but more often it has not yet reached the level of consciousness and constantly making trouble in detail on the. You can see very clearly, a bad guy and a good man has many of the same reasons, hoping to avoid and public power encounter, so you can see the distinction between practical importance of moral and law. Ethical rules one can ignore its neighbour believed and set an example by personally taking part, but is likely to try various devices to avoid fines, and as far as possible, do not wish to go to prison.
　　
I suppose my audience will not take my words misunderstood as a cynical language. The law is the witness of our moral life and external performance. Its history is the history of the race of moral development history. The practice of law has created good people and good tendency, although folk love make fun of it. When I emphasize the difference between law and morality, I have only one purpose, that is to learn and understand the law. For this purpose, you must clearly grasp the laws specific identification, but also for the same purpose, I ask you to imagine you do not care for other more important things.
　　
I did not say that there is not a more broad perspective of legal and moral distinction, thus become secondary or meaningless, like all mathematical distinction will disappear in front of infinity. But I do want to say, for the correct study we consider object -- the law as an occupation and grasping, boundaries and understanding, or within the scope of a clear system of dogma, this distinction is the most important. I have just explained the real reason to say so. If you only want to know the law and not the other, then you must be from a bad rather than good perspective law; bad people only care about the legal knowledge allows him to predict the material consequences, while good people are from the more ambiguous conscience commands to find the reason -- whether in law within or outside. If you can think properly your theme, the importance of the distinction between the a bit is not small. The law is full of learned from moral terms, the latter through the power of language continues to lead us into a realm of existence), and it (is unaware -- unless we mind constantly present (legal and moral boundaries). The law about the rights and obligations, malice, intent, negligence and so on, and in legal reasoning is not easier than this -- or I can say more often -- at some stage in the debate on these words by its moral meaning, thus a fallacy. For example, when we talk about people with moral meaning of rights, we mean that the individual freedom without interference range; no matter how the conclusion, we think that freedom is the provision of conscience or our philosophy. But certainty is, many laws are implemented in the past, and some of them may still be implemented, but they were condemned by most sensible ideas, perhaps many people will think they are in any case of conscience are beyond the boundaries of the intervention. So, apparently, assumed in the moral sense of human rights is also the constitutional and legal rights, can only produce confusion. No doubt, in a simple and extreme examples, we can imagine the legislature even when no written Constitution prohibits also dare not enacted law, because the community would revolt struggle; and this is the following proposition provides some reasonable: if a part of the law is not moral, then at least it by moral constraints. But this limit of power is not coextensive with any system of morals. Most of the laws are far within the range defined by any of the moral system, and in some cases because the specific people in specific period and beyond the customs of their. I once heard the late Ajiaxi (Agassiz) professor said, the Germanic peoples for a glass of beer to increase two cents and rise up in arms. Legislation will become a mere scrap of paper in this case, not because it is wrong, but because it is not enforceable. No one can deny the wrong law can indeed obtain the execution, and the US on what the law is wrong no consensus.
I am dealing with confusion besets confessedly legal concept. A basic question is: the law is composed by what? You'll find out some textbook authors will tell you, it is different in Massachusetts or British courts decide things, it is a rational system, it is from the ethical principles or recognized by the axioms of deductive inference and come, or other what may and decision consistent or inconsistent. But if we use our friend the bad perspective, we will find that he did not care what the axiom or inference, but he did want to know the Massachusetts or English court may actually do what. I and his ideas are very similar. I am referring to the law, is the actual prophecies of what the courts will do, but not any more pretentious.
　　
Talk about a according to common understanding is the legal concept of the most widely used -- legal responsibility I have mentioned. All the content we make this word is full of we extracted from the ethics of. But it is a bad means what? It is a main and first prediction: if he do a thing, he shall be subject to imprisonment or forced compensation mode of bad consequences. In his view, what is the difference between that do one thing and be fined or pay a certain amount of taxes? His view is the legal principles of the standard, which has been appeared in court for the following questions: how many discussions proved an established legislative responsibility is a kind of punishment or a tax? The answer to this question depends on the behavior in the law is wrong or right, and he was free or forced. And the criminal law on the one side, the ask a factory authorized government expropriation legislation responsibility, and not the recovery of a known what is the difference between should bear for the wrong property transfer responsibility? In these two cases, possession of the property of the parties must pay the fair value is estimated by the jury, That's it. Says a correct behavior and another behavior is wrong, what is the significance in the law? Specific results -- to enforce payment --, and the results is whether it is in favor of behavior or blame the description words, or the law is trying to ban or allow it, is it doesn't matter. If there is any relationship, so still from a bad man's point of view, it must be because in a rather than another case law, added some more damage to the behavior or at least some further consequences. Additional damage I can think of only in the two less legal theory an important find, both of which can be discarded without causing too much trouble: one, is prohibited by a law and contract is illegal; second, if a person two or more common offenders must be the payment of all the loss, he cannot to recovery from the other partners. I believe this is all. You see, when we use cynicism acid solution to wash the concept of responsibility, and remove all and the object of our study -- operation of Law -- something, it is outlined how to shrink, while increased accuracy.
　　
Not what is contract law clearly the legal and moral confusion. In addition to the other, here again the so-called primary rights and duties is endowed with mystical meaning can not identify and explain. At common law, maintain contract responsibility means a preview: if you default, or compensation for losses, That's it. If you act of tort is, you are responsible for paying the amount of compensation. If you act is to sign the contract, unless the assurance thing to have achieved, you have the responsibility to pay the amount of compensation. This is all the difference. But for those who love as far as possible the ethics into the legal person, this way of looking at things with their nerve stimulation. But judge Kirk (Lord Coke) have been happy with it, and as many others, I also here to keep him. In the Bromage v.Genning case, occurred in Welsh (England) claim of border area special performance (Note: Specific performance, which requires the defendant (i.e. contract rental) perform here the lease itself, rather than money to compensate the plaintiff for the loss of expected profits --.) A lease; (the defendant) seeking to ban the proceedings in the court of King's bench. Justice Kirk pointed out, especially to perform will tamper with the lessor (covenantor) will, because he was the intention is that he can choose what is the rental or compensation for losses. Senior lawyer of the Harris admits that his conscience and initiate proceedings, court authorized the prohibited action. This than we now discuss go farther, but it proves what I tried to say from the beginning is the common law, although I think Harriman (Harriman) was misleading to a different conclusion in his book very subtlety of "contract law" in the book.
　　
I have spoken only of the common law, and in some cases to find a logical reason, to be understood in the sense to talk about civil liability as imposing duties. These are the relatively few, the equity (equity) will grant an injunction, and will put the defendant in a prison or other form of punishment to practice -- unless the defendant to obey the court. But I don't think the case of foreign general theory is desirable, and I think with primary rights and sanctions to describe what we usually applied to legal liability of the forecast, might as well make ourselves completely beyond these inappropriate word puzzle.
　　
As other examples of legal borrow moral vocabulary, I mentioned the malicious, intention and negligence. In the law of civil liability lawyers -- we called the law of Tort -- used to represent the fault of malicious (malice) as an example, is enough to show you the meaning of it in the law is different from it in the moral meaning, and also show that the difference is due to give to each other without the relevant principles with the same name. Be vague. Three hundred years ago, a pastor told a Fawkes in the sermon (Fox) the "martyrs" in the story: a man who had helped the torture of a saint, and later by die painfully retribution. Fawkes was wrong. This man is not only still alive, and happened to hear a sermon, so sue the priest. The chief justice ray (C.J.Wray) directed the jury acquittal for the accused, because the story is careless, not malicious. He went from the moral meaning of malicious, because he introduced malicious intentions. But today, even in the absence of any evil motives, no one will suspect a person clearly calculated to cause real damage misrepresentation is responsible for. The case statement in the debate, we should put the defendant's conduct as malicious; but at least it seems to me, the word is never refers to the motive, or even the future, but only show the defendant's behavior when he knowingly obviously will cause harm to the world.
　　
As I have some -- but only part -- that, use of ethical terms in contract law leads to the same confusion. Ethics deals with the actual state of internal personal thought, that he actually wanted. Since the Rome times until now, this treatment has affected the legal term of the contract, and the use of language has produced a reaction to the idea. We say that the contract is the meeting the parties thought (meeting of minds), and by inference, in many cases, because both sides thought did not meet, because both sides want something different or one party does not know the consent of the other party, and the contract does not exist. However, to determine that, even if the parties have no one thought, or one party does not know the consent of the other party, but may still be bound by the contract. Imagine a contract by the proper way to obtain written sign, will give a lecture, but did not mention the time. A party to a contract that the commitment will be interpreted as immediate cash within a week, the other side is that it means he is ready in time. The court said, it means that a reasonable time range. Both parties are subject to interpretation by the court of the contract binding, although both sides have no court declared that mean what they say. I think, only to understand all of the contract is a kind of form, the establishment of the contract is not agreed on a particular idea in the thought, and depends only on the two sets of external markers consistent, is not in two parties thought the same thing, but they said the same thing, people in order to understand the real contract theory, or even just a meaningful discussion of some basic problems. In addition, the marker can be passed to a feeling or another, such as visual or auditory, marking the nature of contract signing time. If the token is tangible, such as a letter, the contract was founded in about the letter is issued when the culvert. If it is necessary to meet both the meaning of words, so until about be read before, the contract does not exist; for example, if the letter is about third people away from the culvert offer hands, the contract would not exist.
　　
Now is not the time to elaborate a theory, or to answer many obvious questions caused by these common views. I don't think what a difficult question to answer, but I have to do now is only through a series of clues, to the narrow path of legal theory and the view to provide some enlightenment from two trap it almost dangerous in my. For the first trap, I have made enough. I hope my examples have shown the regardless of the theory or the practice of the moral and legal risk be confused, and trap the legal language in the US under the road. For my own part, I often wondered if each has the moral meaning of words can be completely excluded from the law, and be used to any color other words legal thoughts with no outside the law, may not be a bad thing. We will therefore lose so much history and obtained from the relevance of ethics in August, but through to rid yourself of unnecessary confusion, we should be able to greatly increase our thoughts clarity.
　　
The bounds of the law is talking about here. I want to examine the next question, is to determine the legal content and development power. Can you and Hobbes, Bentham and Austen assumed, all laws are from sovereignty -- even the first to clarify the legal person is the judge, or you can think that law is the spirit of the age (Zeitgeist) voice or other what you like. These for my present purpose are the same. Even if every decision needs a despotic power and play fast and loose of the emperors of the approval, we still should bring a predictive perspective to explore a certain order, some rational explanation, the growth principle and rules he established with. In each system, there are such to be explained and the principle of discovery. It is with respect to these, second fallacies in; I think it is necessary to explain the.
　　
Fallacy I refers to such a concept, namely in the legal development in the only force is the logic. Indeed, from the most general sense, this concept is right. We imagine that the universe is, there is a quantitative relationship between each kind of phenomenon and its antecedents and consequences. If there is such a relationship does not exist the phenomenon, it is a miracle. It is the cause and result of law, so it is beyond our ability of thinking, or at least a we cannot infer its causality. We think about the universe on condition that it can be thought in a rational manner, or in other words, every part of it and other parts of the same in our most familiar sense as cause and result. Therefore, in the broadest sense, the law just like every other thing, really is a logical development. I said the risk does not mean that the principle that rule other phenomena also ruled the law, but that such a concept, such as our system as mathematics from common justice behavior deduced. This is the natural error of each school, but is not limited to them. I once heard a distinguished judge said he absolutely sure, until the decision is correct will go. Therefore, different opinions of the courts often blamed, if it only means that one side or the other not to count on the number, and if they are not to mind taking the trouble to try it, consensus will inevitably produce.
　　
This way of thinking is completely natural. The lawyer training mainly logic training. The process of analogy, difference and reasoning process, but they are most familiar with the. The language of judicial decision is mainly the language of logic. And the logical method and form that every heart to determine and peace of the kind of desire to meet. But certainty generally is just an illusion, but rest and not human attribution. Behind the logical form, relative value and importance of the existence of a pair of competing legislative grounds of judgment; indeed, it is often an unconscious judgements without expression, but the foundation and it is the whole process of nerve. You can give the logical form for any conclusion. You can always contains a condition in a contract in. But why should you implied it? This is motivated by some kind of belief about the community of practice or a class, or for some insights for policy, or in other words, for some of the things you can't be precise quantitative measurements -- so it cannot serve as a basis for the exact logical conclusion attitude --. This kind of judgement is just like war, can at any time to realize the determination means immutable and frozen does not exist, but a decision only reflects a specific groups in specific time and place preference. We don't understand how much of our law for public thinking habits have changed slightly changed and accept the re consideration. No specific claim is not self-evident, regardless of how we might want to accept it; even Herbert Spencer (Herbert Spencer), "everyone has the right to do what he wants to do, as long as he does not interfere with its neighbors the same rights" is no exception.
　　
If it is to provide the relevant servant information, why the statement even if the error and the damage is still protected? This is because people think, information freely available, than to protect a person from in other circumstances would constitute actionable infringement is more important. Why do people have the freedom to build a he knew that his neighbor bankruptcy of enterprises? This is because the free competition are considered to be the best to promote the public interest. Obviously, this regarding the relative importance of judgment will change with different times and areas. Why a judge instructed the jury, except for negligence, otherwise the employer to the employee in the hiring process damage irresponsible? Why, if the jury is allowed to accept cases usually stand to the side? This is because the traditional policy of our law is the liability limited to the following situations, namely, a prudent people have predicted damage or at least dangerous tendency, and the majority of people is to let the community specific class of people that their employee safety. After being written down in the last paragraph, I have seen one of the most famous labor organization the insurance requirements as part of its programme carried out. There is a subtle hazy consciousness battle on legislation and policy issues, and if anyone thinks this fighting can obtain the deductive solution or put things right once and for all, I can only say that I think he is wrong in theory, and I am sure that his conclusion will not be accepted by.
　　
Indeed, I think about this theory still needs to be re thought, though I'm still not ready to say if the proposed re thinking if I should decide. From the old age is not isolated and inductive fault, attacks, slander and similar civil tort compensation for us, they fell into place legal judgment. But cases of infringement of our court busy today, mainly occurs as everyone knows) enterprises (in the accident. They are railway, factory and its ilk induced injury to person or property. On the liability to be measured, and sooner or later will become the price paid by the public. Public institutions really pay the damages, and if the responsibility was far enough, it is actually a public institution shall ensure that the service provider security question of the appropriate extent. Perhaps some people will say, the jury in these cases the probability in the side of the station is only a kind of probability; normal channels occasionally it would interrupt quite arbitrarily compensation, which in the case of extremely self because most likely to occur, so it is best to exclude the probability. On the other hand, even a life to the community's economic value can be estimated, and people can say the compensation shall not exceed the amount. As you can imagine, we find ourselves at a higher level in some cases a day, in imitation of our kingdom in the brutal laws (Leges Barbarorum) to see the life and limb of tariff.
　　
I think the judges did not properly recognize their responsibility to balance social interests. This responsibility is unavoidable, and often claimed that the judge should be avoided in this kind of consideration result, just like I said that was not clear and are often unconscious decision left room and foundation. When the socialist started being talked about, associations of leisure class very fear. I suspect that this fear has affected America and British judicial behavior, but to be sure, conscious factors which I did not refer to the decision of. I think something similar to those who no longer want to control the legislature to court as a constitutional interpretation, and some courts in addition to these legal files found new principles; they can be summarized as an epidemic in the 50 years prior to the economic theory, and a total ban on a made up of lawyers in court that is wrong things. I can't believe that, if the legal training so that they are accustomed to more certain, clearly consider social interests, and must be used to provide a reason for their rules, they sometimes feel hesitant in their current self-confident place, and they actually on the controversial and often controversial take a stand.
　　
The logical fallacy forms and talked about here. Now let us consider the ideal state of law as the research subject and its trend. We can reach the idea still far from what I expected, and now no one has or can reach. We are just at the beginning of philosophical reflection and Rethinking on the theory of value, and the vast majority of theory is still in the absence of its foundation was assumed by questioning whether any system of prudence and conscious state right. The development of our law has continued for thousands of years, as well as the development of plants, each generation has taken the inevitable next step, and the material, obey the law simply spontaneous growth. It should be so, is completely natural and justifiable. Imitation is the necessity of nature, and is the excellent French writer Tad (M.Tarde) described in the enviable work "the laws of imitation". The reason we do most of the things we do, but because of our parents and our neighbors have done it, and most of our thoughts (more than our own conjecture is true). This is a good reason, because our short life can not give us enough time to get a better reason, but it is not the best reason. Just because we are forced to secondary mode (Note: refers to the rules are not created by abide by themselves --.) Trust most rules, and as a basis for our actions and thinking, does not mean that each of us can't try in his own world to establish a corner in accordance with the rational order, or all of us should not join the pursuit of rationality to all areas of its reach. Indeed, for legal purposes, an evolutionist would no doubt be sure his social ideal and universally valid sexy to shilly-shally, on a that he should be so is the legislative principles. If he can prove that they are on here is the best, he needs. He might admit that he know nothing at all about the universe is good at any time, even for the human eternal good almost know nothing at all. However, if each rule contains the law can clearly and one it must promote the goal together, and expects to reach this objective reasons can be expressed in language, so the legal system will be more rational and civilization.
　　
In many cases, if we want to know why a rule of law to take a special form of it, and if we want to know why it first will exist, we to the traditional (answer). We follow it into the annals, and perhaps beyond them and came to Caesarea, Frankish custom, somewhere in the past -- it can be in the Germanic jungle, or King Norman 's needs, assume or ruling class, we find that the real motivation (rules) in the absence of universal ideas guided and the reason is, it is at best but it is accepted and has been used in. To a large extent, rational study of law is still a historical research. History must be a part of the study, because the precise range without which we could not know the rules, and this knowledge is our occupation. It is a part of the rational study, because it is the first step toward enlightened scepticism, the first step is the value of these rules to carry out careful test. When you get the dragon from the time in said of peaceful times. to plain cage, you can count his teeth and claws, and have a look how strong. But put him out is only the first step. The next step is to either kill him, or tame him and put him into a useful animal. For the reason of the law, understand the law may hold now, but the future is the master of economics and statistics. Except that it is drawn at the time of Henry IV, a rule of law is no better reason -- this is unbearable. If the rule reason had disappeared, and the rules continue to exist only from blind imitation of the past, it is much more difficult to bear. What I want is the so-called "initial illegal invasion" (trespass ab initio), I was trying to explain the technical rules in a recent Massachusetts State case.
　　
Let me use a few words to give an example, that is rule of law as the target of social purpose is how to be ambiguous, and only part of the implementation, reason is the historical development of the rule of the form from the gradual, but not consciously and clearly according to obtain the overall update. We believe that prevent a person's property is another appropriation is useful, so we put the larceny crime. No matter the is how it happened -- is affected by the custodian of property owners Commission, or mistakes took it, the consequences are the same. But the original law with weakness could not transcend violence prevention efforts, and it is natural to mistake -- an illegal occupation -- as part of the definition of crime. The modern judges slightly expanded the definition, determine if the wrongdoer by trickery or trick for the property, then he is a crime. This is to give up the illegal occupation of requirements, and for the aim of law, more logical and the correct way is to give up this requirement completely. However, it seems too bold, and was left to the legislation (to do). Legislation by the corruption into crime. But the traditional power leads to corruption and theft are regarded as so different, even until today, at least in some districts for the thief kept a slip angle, make them like was accused of theft would argue that they should be charged with corruption, and if the accused of corruption have argued that they should be sued for the theft, and thus escape.
　　
More basic than problems still wait for us to give a better than our parents to answer. In addition to blind speculation, we have good reason to explain the form of criminal law to do good than bad how? I'm not going to stop and refers to the criminal law makes the prisoner down and make them further into the abyss of crime, his wife and children not to mention a fine and imprisonment on criminal burden is heavier than his own problems. I think the more profound questions: punishment can really deterrence (crime)? If we use the suitable principles to deal with offenders? A school of modern criminal law said first by Gore (Gall) recommended formula to dress themselves, claim that we must not consider criminal crime. This formula does not take us very far, but it began to explore is first based on science to answer my question. If the criminal is a fallen, like sound physiological rattlesnake bites as incorrigible to fraud or murder, so talking about using the classical method to deter the prison he is in vain. He must be removed; he cannot be reformed or for the structural response and intimidation. On the other hand, if the human behavior crime as normal that is mainly a parody of problem, then the punishment can be reasonably expected to maintain this behavior was out of fashion help. Research on the criminal has been some famous scientists think that supported the first hypothesis. Statistical evidence for different regions of the crime () relative growth, was strongly in support of the latter view; they included crowded areas such as big city, the model has the greatest opportunity to play a role, as well as the population is less dense, spreading the virus to more slowly. But no matter how, the following view has important authority support: "nature of the dangerous sex offenders and non crime, constitute the only reasonable legal standards to guide the social response to the inevitable."
　　
I'm from the theft of the legal description of rational inductive obstacles; this is not only reflected in the criminal law, but also in other branches of the law. The civil liability arising from tort law -- with the contract and other similar behavior for different -- for example. This kind of liability for any general theory, or is it the case can only be cited, and every situation can only be based on its special reasons be explained? The latter because of the following facts and easy for people to believe: for some known fault types -- such as illegal invasion or slander, the procedural rights of every class has its special historical. I think the need to find a universal theory, but it is based on the propensity (behavior), rather than what has been established and accepted. I think if you meet the following conditions, the law took responsibility caused by temporal (temporal) damage as actionable: in what he know of the situation, according to the common experience or according to his own experience -- if the latter more than ordinary words, dangerous behavior is obviously except for special reasons; policy based on a law to protect the plaintiff, or provides immunity to the defendant. (Note: the law to protect the plaintiff an example, when he is on a valuable use of the road was a stranger interrupted; and long-term use of the access rights of the statutory period compared, he is in the way of "reverse" (no access to all authorized to possess or use --.) Also one week. A week later, he will make the right, but now he is just an intruder. Immunity examples I have given. The best example is the occupation competition -- the author of the notes.) I think the malicious, intentional or negligent usually only means danger in the behavior of people know the situation in a greater or less degree is obvious, although in some immunity case, malicious malicious motives may mean that the actual, and this type of motivation (existence) may cancel the know under the premise of slander license (each other), or this or that reason important based on the public interest will be awarded the license. But when I was in the day to express this view to a very distinguished judges in the UK, he said: "you are talking about what the law should be; but what the law is concerned, you must prove the existence of a right (of). Unless subject to an obligation, a person is not for his carelessness." If our differences not only textual differences, or is not just about between the exception and rules of proportion, so in his view, a kind of behavior responsibility cannot be based on the behavior may cause real damage obvious trend as sufficient reason, but must damage based on special properties, some special cases from the behavior tendency must be beyond or, and this common explanation does not exist. I think this view is wrong, it is very familiar to the people, and I dare say that it is generally acceptable in the uk.
　　
The principle is based on the traditional in every place, it has developed to such an extent that even at risk, we expand the historical role. One day Ames (Ames) the professor wrote a scholarly article, in which among other things, that the common law action in deed not admitted the fraud as a defense, personal characteristics and (this view of moral persuasion) is that the defense from the equity law. But if, as I said, all contracts are form, so the difference is not only in history, but also the theory: it is the difference between form defects and mistakes motivation to prevent contract; the latter is clearly not in any system is considered rational motives we said, in addition to the the dark has those motivated people. This is not limited to the deed, but has universal application. I should add, I don't think Mr. Ames would not agree to my suggestion.
　　
However, if we consider the law of contract, we find it is full of historical. Debt (debt), (convenant) the contract and compensation for breach of contract litigation (assumpsit) the difference between, only history (product). The mind (consideration) theory is a product of history. Given the seal effect only for history to explain. Thinking is a kind of form. It is useful to form? If it is, why it is not required in all contracts? The seal is only a form, documents and agreement and is must give consideration disappear -- have seal are the same. Why do anything just for historical reasons difference should be allowed to affect the rights and obligations of the merchant?
　　
Since I wrote this essay, I met a good example to illustrate the tradition not only overcame rational policy, but also in the overwhelming traditional (rules) before the first misunderstood, and was given a new significance than it is when a broader scope. This is established in British law, if a party to a written contract of substantive changes, so (court) to avoid the contract against him. This theory goes against the general tendency of law. We are not the jury said, if a man on a concrete thing lying, so he is assumed to have lied about everything. Even if one tries to cheat, do not seem to have sufficient reason to stop him to prove the real situation. Objections similar properties generally affect only the weight of the evidence rather than size, whether it can be accepted. In addition, this rule and fraud, and not just in the evidence. Not only you can't use this document, but the contract was the end of it. What does this mean? A written contract is determined to communicate in written expression in between an offer and about people, rather than the expression continues to exist. But in the case of bonds, and the different initial values. Contract and documents can not be separated. If a stranger destroyed it, or tear the seal, or changing it, so creditors regardless of how no wrong can not receive compensation, because the defendant companies -- that he's real tangible bond -- cannot be copied into his form of constraint. About one hundred years ago, Kenyon (Kenyon) judges try to exert his rational tradition, as he sometimes on Legal damage; if not understanding the tradition, he said he could not see any reason why applies to bonds should not also be applicable to other contract. His decision was right, because it involves a (promissory note), the common law once again that the contract and it is written in the paper can not be separated; but his reasoning is universal, and soon to be extended to other written contract, and various color ridiculous and false the policy reason was invented that expansion of the.
　　
I believe that no one will take me as disrespect of the law, because I criticise it so freely. I worship the law, especially in our legal system, because it is one of the largest product of human thought. No one knows more than me many great talent, dedication to some additional or improved, one of the most great and huge compared to the whole is not worth mentioning. It was the final right of respect to the () that it exists, that it is not a dream of Hagel, but a part of people's life. But one could criticize him respect. The law is one of my dying for occupation, and if I don't have to I want to improve it lies to do, if when I noticed that in my opinion is its future ideal, because I think back and forth without end without it and fully to it forward, so I had shown no devotion.
　　
Maybe I have said enough to show that the study of history, will play in the law of reason in the role, as it is today. In the Harvard and Cambridge teaching, there is no danger it undervalued. Here Biqiluo (Bigelow), and there Ames and Mr. Purcell (Thayer) has been the important contribution made will not be forgotten, and in Britain, Frederic Pollock (Frederick Pollock) jazz and Maitland (Maitland) of early British legal history works, make this theme took almost deceptive. We must guard against the pitfall of antiquarianism, and must remember, for our purposes, we are interest in the past but it shines the light. I look forward to a day when history to explain the role of play doctrine becomes very small, and we should put our energy is spent exploring seek to achieve and realize the expected () their reasons, rather than create new styles of. In my opinion, as to this goal step, every lawyer must know some economics. At present, between political economics and Law School of separation, in my opinion is how much philosophy research progress remains to be made evidence. In the present state of political economics, we are once again back to the history of a larger scale, but where we are asked to consider and weigh the legislative goal, means and the cost of their. We learn that we must give up what else can get anything, and we were taught to compare our interests and other interests to win we have lost, and when we choose what to what we do.
　　
There is another type of study, its value is sometimes practical minded people underestimate; I think for this type of study to say nice things, although I think very much very bad things with the noun. I am referring to is known as the jurisprudence (jurisprudence). In my opinion, the most popular part of the jurisprudence is law. The case comes down to every effort of a rule is the effort of jurisprudence, although used in English name is limited to the most extensive rules and basic concepts. Application of mark of a great lawyer is that he sees the most widely rules. A judge order Fuwangte state (justice of peace) story; a farmer to indict him another farmer damaged his churn. The judge to consider for a while, then said he checked all of statute law, is not to find any relevant provisions of the churn, the judgment for the defendant. Abstract the same state of mind that is expressed in all our mediocre (Digest) and textbooks. By using the basic rules of contract or tort is hidden under the "Railway" or "telegraph" and other items, or enter into such as "transport" or "securities" (Equity) and other branches of historical bloated works, or collected in a "business method" is that any title may appeal to the practical minded the. If a person entering the domain of law, so do the experts in this field is good, but do it even means that can see through all the high-profile event, the real foundation and recognition prediction. Therefore, for your law, rights, obligations, malice, intent, negligence, ownership, possession and so on what it means to have a clear concept, it is good. I thought of that in my opinion the Supreme Court came a cropper's case, the reason is that they don't have a clear concept of the theme of these. I have illustrated their importance. If you want to get more thorough illustration, it is through reading James Stephen (James Stephen) jazz "criminal law" on the theme behind the possession of appendix to discover it, then turned to Pollock and White (Wright) of the enlightening Co. Sir James Stephen is not the analysis of legal concept attempts by the sole author confused; confused because they strive to acquire the essence that all system useless, instead of the correct analysis of one. Austen (Austin) problem is that he doesn't know enough English law. But master Austen and his predecessors -- Hobbes and Bentham -- and his distinguished successor -- Hollander (Holland) and Pollock's Theory --, still have the actual income. Sir Alex Frederic Pollock recently little touch the mark all his writings precise, and no pattern of Rome makes people fall into a wrong path.
　　
The older the young people would easily be like one hundred the best books do not thing. At least in my time, I will also share some of this kind of advice, and unrealistic high I set the Rome learning method is proposed. I assume this advice than collect several Latin motto to decorate the dialogue means more -- this is justice Kirk Black Don (Bracton) the proposal to. If this is all that is desired, then the "ancient legal review" the read in an hour. I assume that, if Rome learning method is useful, then only take it as a functioning system to study what is useful. This means that to master a set of more difficult and understood less than our own technical rules, and study method in Rome must obtain than our own laws need another history interpretation. If anyone doubts me, let him read Keller (Keller) about the Archons decree on the "Rome civil procedure and lawsuit", Miuerhaide (Muirhead) the most interesting "an introduction to the history of Rome private law", and in order to give him as much as possible opportunity, SOM (Sohm "jurisprudence") is the envy of the summary. No, a liberal view of your subject, and not to read what other, but drill into the bottom of the subject itself. This means first through the jurisprudence to help the existing system of dogma tracking to the highest degree of generalization; then found from history how it become now; finally, as much as you can to consider these rules seek to accomplish these goals are expected, the reason, to realize they must give up and what with respect to the cost in terms of whether it is worth.
　　
Especially for the end of the study of this branch, all of our legal theory is too small and not too much. When I talk about the history of theft, I mentioned this example, to prove how the law for failing to reflect in the implementation of a clear goal clear form and damage. In that case, the problem is from the past forms continue to exist, and to accept that a more limited objective. Now let me give an example, by one as far as I know is never in any appropriate way be explained or rules of inference, to prove the importance of understanding the reason of the law to determine the actual cases. I refer to the relevant legislation and (prescription for long-term occupation) and won the right (prescription). The end of such rules is obvious, but what is the reason for the passage of time and the deprivation of human rights -- on its own is a purely evil? Sometimes referred to (reason) is evidence of the loss, but that is a secondary thing. Sometimes because of longing for peace, but why peace in 20 years later than before more desirable? It is increasingly likely in the absence of legislation to help. Sometimes it is said that if one ignores the implementation of their rights, so if the law governance also after a period of time in the way the body, he can't complain. But if this is all the reason, then you may be I will give your case the plaintiff; if you use my suggestion, you are likely to sentence the defendant to win. A man was charged with illegally intruding into others' land, and provides the reason according to his right to the road. The defendant to prove that he is open to the public and hostile (Note: Adversely, which has no ownership of the situation to occupy and use the land, which was illegal occupation --.) Use of road 20, but found that the plaintiff had given a he reasonably believes to be the defendant who -- despite the fact that he is not -- licensing, the plaintiff has been assumed that the accused of using on road is allowed, and thus the defendant cannot be right. The defendant is not right? If the right is his fault and negligence of the owner of the land in the usual sense based on -- as is often seem to think so, then this kind of negligence does not exist, so the defendant) (on the road right has not been obtained. But if I am the defendant lawyer, I would recommend base to obtain rights because of the passage of time should be from the winner -- rather than lose -- there to look for. Sir Henry Main, the property of the ancient idea and got the right to contact became a kind of fashion. But this relationship than the first record of the earlier history. It exists in the essence of human thinking. If you're already in a very long period of time to enjoy something and take it as your own use, whether it is the property or an opinion, it has been rooted in your presence, and deprived of it could not make you hate this kind of behavior and trying to defend yourself, and no matter how did you get it. Compared with the deepest instinct, the law could not have asked for a better reason. For you are the previous owner was disappointed that, just as a response, you just mentioned the plaintiff's negligence, so that he and his claim of real estate gradually alienated, which accused and gradually establish contact. If he knows that another person is doing that on the surface he is in the process of establishing such an association, I would argue: to others just based on, he has the responsibility to blame, to find out whether people are acting under his permission, to ensure he was warned and be terminated when necessary.
　　
I have been talking about the study of the law, and I almost didn't talk about usually talk about related things -- teaching and case system, various tools and the most direct contact with students. I won't talk about them. My topic is theoretical, not practical details. Since my age, teaching mode has undoubtedly improved, but the ability and hard work will in any way to master the original material. Theory is the most important part of legal doctrine, as an architect is the most important in building as the people in. The most important improvement in the last 25 years is the theoretical improvement. We should not think that it is not realistic and worried, because the ability of people, it simply means that the substrate into the subject. Of the incompetent people, is said to the universal concept of interest means the lack of special knowledge, sometimes it is right. I remember when I was in the army had read about a young man who, at the lowest level of the test asked squadron training, he replied that he had never considered less than ten thousand revolution. But the weak and clumsy can only let them stay in their own folly. The danger is that competent and hardworking type for the people and their occupation relationship distant concept completely indifferent, or unbelief. One day I heard a story, a high salary to the pay, to pay. His a pay cut is "lack of imagination, $5". But the lack of imagination is not limited to. The ambition of the object -- power -- today normally appears as a form of money. Money is the most direct form of natural objects, and desire. Rachel (Rachel) once said, "life is intelligence measure." It is the people wake up from the fool's paradise's advice. But as Hagel said, "and finally to meet and not desire, but views." For any range of imagination, the most far-reaching form of power is not money, but the concept of command. If you want a special example, read Mr Leslie Stephen's "history of ideas" in England in eighteenth Century, and have a look at the actual strength of Cartesian abstraction that he died after a hundred years to become the control of human behavior. Read the great German jurist writings, and have a look the world today by Kant rule how far more than Bonaparte. We can't all be Descartes and Kant, but we all want to be happy. I know many successful people can be sure, just become a corporate lawyer and has $50000 in revenue, and can not win happiness. In addition to outside, a sufficient intelligence to winning people also need other food. The law more distant and common interest is to give it the universe. It is through them, you become a master not only in your occupation, but also can turn your theme and the universe together, captured it from the infinite sky have no bottom echo, process perspective, and explores the laws of the universe.