The gate to the law

Title."The gate" (Eighth Edition)

Name· Eighth Edition

A: [beauty] Bo (John J.Bonsignore) signal

Translation: Deng Zibin

Press: Huaxia Publishing House

Published: 2007-01-01

 

Content abstract

This book is a legal textbook USA each University School of law in general. Can also be viewed as a mini Encyclopedia of Anglo American law. This book aims to show USA legal process, not only through the description, but by allowing readers to you to me to argue, important and emphasize the law say, is only in some sense is a kind of functional rules. This book aims to make every arrangement ideas with other than the. Each article and case provides a tension between the exploration of man's chance. It is in this teaching method, the book to simulate the real operation USA legal process, opened the door into the law and society. The rule of law, this book provides principles and case, is all social science, history and literature in the context of knowledge argument and discussion materials. This book is a philosophy of law, in order to better study the other reading materials; as the court judgment of a case are potentially expand the future scope of the argument, because the judgment has become an integral part of the law in his. The judgment shall be generated by the query, and all aspects of a dispute should be examined in order to obtain the most extensive, most especially, view. Not only that, the design of this book is to achieve such an effect: to solve the knowledge points of a reading material in both extend the category of thought,

Catalog.
For Chinese edition order / Peter Deenrico
The sixth edition of Chen Xingliang
The eighth edition of Deng Zibin
Preface
Introduction
Introduction
One, before the law
Two, a conversation with K
Three, our legal problems
Four, jester
The first theory and the practice of law
The first chapter of law and precedent: judges and lawyers to start reasoning by precedent
The second chapter is the discretion of law and justice
The third chapter law and value
The fourth chapter law and conflicting interests
The fifth chapter legal status of wealth and power
The sixth chapter legal and public opinion
The seventh chapter is about the legal and legal order of feminism and racial
Second law enforcement
The eighth chapter law enforcement
The ninth chapter legal rights
The tenth chapter legal skills
Third lawyers
The eleventh chapter legal occupation
The twelfth chapter law education
The thirteenth chapter lawyer and adversarial process
Article fourth the jury
The fourteenth chapter of history and cultural background of the jury
The fifteenth chapter jury as a political institution
The sixteenth chapter jury selection of pluralistic society: gender discrimination and racial exclusion
The seventeenth chapter of the jury: the decline of democracy in crisis
To solve the fifth conflict
The eighteenth chapter legal context to resolve disputes
The nineteenth chapter dispute solution and community justice
The twentieth chapter public dispute and dispute resolution.
Sixth network space and the law in the future
The twenty-first chapter network space and the law in the future
The twenty-second chapter to resolve disputes in Cyberspace
The twenty-third chapter protection network space in the right
The twenty-fourth chapter protection of the property rights in Cyberspace
Chinese index
The sixth edition translation postscript
The eighth edition version

 

 

 

 

Introduction

 

 The open secret is America legal process, it is a disputed area. There is no hard and fast answer, though at any given moment there are many specific issues of law. Not only did not answer, but American legal process is a set of problems, confrontation and difficult system. Rules and principles exist -- to the rules of practice, the local court from the constitution but, they are not static, are not immune to debate and analysis. The law is not the answer as a conflict exists, but as a means of persuasion conflict exists. The contestant must offer case law, statutory law and the general principle of equity arguments based on. The judge required arguments in litigation category provides the inner, based on the precedent judgement. These are not only the law, but also social expectations, they make the legal process has predictability.

 In the context of this unique history and technology, USA legal process can be understood as the overlap a multi-layered system. While reading American scholar Bo Signor book "the gate to the law", can make us more in-depth understanding of confusion about the law.

[a] the law in the theory and practice of contradictions.

 Once considered the legal relationship from natural law or customary law, now more and more subservient to the imbalance of the personal or corporate economic power, legal, is thought to be protective, regulation, the father of, most important, once considered the community moral sense of the expression, is now gradually considered but is showing the existing economic and political power organization of interests.

-- Horwitz

  Make laws to reflect is the people's interests, the implementation of "everyone is equal before the law" principle to the law. From this perspective, the law and a people based on the personal interests and willing to abide by the rules, is an "expression of the will of the people", this is the law of value. However, when the wealth, power and identity, gender and racial intertwined, legal system appeared obviously unequal status immobilization. In order to make the law effective in their own group, powerful people tend to spend a lot of energy and money, resulting in law is to realize the elite will. While the legal structure and its effect to the ordinary citizen, may be just the general "law" two words. The average citizen is abide by the rule of law. For example, from the penalty of death penalty said, the burden of poor, innocent and usually falls to the bottom of society people; only members of the poor and minority groups are the most difficult to express their anger on the death penalty. Their incompetence is a victim of its become a kind of sanctions, and rich, with a better defender who can escape the sanctions. As long as the death penalty also applies to pariah -- easily forgotten members of society, so the lawmakers will meet to maintain the status quo; selected in the pluralistic society of jury selection, women are often considered to be non rational, be of little, and colored it would be something forced out, this is the gender discrimination and an epitome of racial exclusion in the judicial process.

 "The law is a rule system" is flatter legal positivists gold sentence, it implies that the certainty to become the highest value of law, and injustice. Legal positivism thinks that: (a) the law by determining a set of known, no doubt the rules. Although the legal system also includes the elements of legal concepts, legal principle, legal technology, but the rule of law is the main part of law. (two) determine the rules make people produce reasonable expectations for their actions can be. (three) the judge from the determined rules to launch legal judgments specific. The court ruling has a predictable, and a judge is by feeling rather than to judge, by feeling rather than logic judgment. But from the specific cases, the judge had come far behind him on a false evidence of the reaction, the rule of law and cannot be accurately predicted the results. Law is a system of rules, but also a system of meaning. The rule of law, there will not automatically applicable to cases, law is a "living law", is due to release its significance. Application of law is a process of "meaning" release and processing. But the judge acts as the main release method. Therefore, we recognize the specific cases to law at the same time, have to take into account the decision process and the judge's personality -- known as "political, economic and moral prejudice". Can be said that in the final analysis, the judge's decision is a product of his whole life's journey. At the same time, we also found that, compared with other people to the rule of justice judge trampling, but in the judicial process so that the law of "dead" more decent.

So it proved a point, the traditional process of judicial discretion: "the fact judgment, qualitative rules" as "fact with the attitude of judgment".

 

 

[law mandatory and freedom of the individual to coordinate two] legal system of rule of law

Punishment is the core problem of the implementation of the law, the law depends on mandatory, but an attempt to organize themselves into a government monopoly. In such systems, the official compulsion is the only legal enforcement. Interpretation of the law in the suffering and death of the field, in many ways is right. Legal interpretation and application and cause violence to others: think judge clearly expressed his understanding of a text, and the result is someone lost freedom, property, children and life. Legal interpretation also still happen or justification of impending violence. When the interpreter after completion of these tasks, they leave behind is by many creatures that organized social violence torn. Montesquieu said, is the existence of a rational. Edward Kirk said: the reason is the law of life. In the history of western philosophy, rationalism and the law has a long history, as "as a continuation of the natural law thinking long-term, rational has become an important factor of legal thought history. Although naturalism law school will only rational features endow human theories of natural law, but the natural law and positive law and not completely separated, people in the process of the legislation, the legislation principle also implies the rationality, and it as their own evaluation and ethic foundation." However, law-abiding behavior in our daily life and inspiration from the legal rational charm, rather than violence support depends on behind the law; legal violence also play a role in the judicial process, even the most common in. The interrogation process seems to be a civilized dialogue, however, this "conversation" as a precondition for the implementation of the law of violence, is the use of violence, implement it as legal violence for justifiable reasons. We can be victims of legal violence said some sympathy, but we also have to admit: a balance of terror in a sense is what we expect and desire that justice.

Aristotle said, "law is order, and good law is good order." The rule of law universality, clarity, the continuity of the characteristics of the restrictions, to a great extent against confusion and disorder. "As we know, in the social life order is concerned with the establishment of human action or behavior patterns, and only the behavior today as yesterday's behavior, to establish the model. If the law of frequent and disorderly change not braking effect, so the result is confusion, because no one can predict the information and event tomorrow will appear." However, in reality, the law usually refers to a judicial system, and the order refers to special order an administrative system, a country, is typically viewed as a hierarchical order. This authoritative rank order security rules from the top down and be implemented step by step implementation. However, in many cases, implementation is not law using the longitudinal mode of power, but the horizontal power mode, it means: a person can not control other people in the system. So, Michel Volker thinks, "harmony of law and order, has been the idea of those people, and now it is still a dream. Law and order can not be reconciled, and when you do, it only shows such a form: legal binding to the order of the state."

The rule of law is often understood as "rule of law", the government under the rule of law is "the government and non government rules". Open the history of legal thought, definition of the rule of law meet the eye everywhere. In the rule of law is generally understood in the presence of a premise: the law is a natural. Like other natural law, the law is the inherent part of society, the society must respect the legal operation. However, the premise is the difficulty: the law is different from other natural law, which requires people's efforts to maintain its existence, and other natural law will not depend on people and exist independently. Legal, non-human creation cannot be born, non implementation cannot run. And yet, "said the law is dependent on people" is also a problem. If the existence and operation of law depend on people, so people should have the ability to create and operate the law, and the ability to exist before the law. If you have this ability in human nature, then the law is no longer necessary. Thus, the relationship between law and people, as a chicken and egg in circulation.

[three] on the judicial process theoretic imagination cannot conceal its predicament.

If you want me to decide the best people is ignored in the legislature, or ignored in the judiciary, I would say, the people would be better placed in the legislature. The execution of the law is more important than the law.

-- Thomas Jefferson

 The judicial process is the judge "taking facts as the basis in theory, discretion take law as the criterion". In this process, the judge through the steps is: to determine the legal facts, find the legal basis, the syllogistic reasoning conclusion. However, the judging process psychologists describe the ordinary is not so. Psychologists tell us, judging process is rarely in advance and gets a conclusion. Determine the starting point is the opposite -- to the formation of an uncertain conclusion; a person is usually start from this conclusion, and then try to find the premise to the conclusion. If he can't have got one's wish find proper arguments for joining the conclusion and he thought premise, acceptable so, unless the arbitrary or stupid, he will abandon this conclusion to seek another conclusion. (forty-second pages) therefore, conclusion (or target) occupy the dominant position in the judgment process. Obviously this point in the lawyer's way of thinking. The conclusion is no longer a selectivity of lawyers. The lawyer client work for its interests, so it must ensure that its clients from successful conclusion (target) starting to cut, the facts of the case, in order to be able to from his desire conclusion (target) down a major premise that launched him to accept the court. Now that the judge is a person, his way of thinking should not violate the people's way of thinking. Hatchie, the judge told us the experience: "the judge decided, is indeed by feeling rather than through judgment, by feeling rather than through the syllogistic reasoning, this syllogism reasoning only appear in court opinions." (forty-second pages) "in the sense of 'feeling' or its decision, the judge's behavior accurately and lawyers on the handling of the case are consistent, only this one exception: lawyers have in its view preset target -- won the lawsuit as the principal -- he only search and consider those that he went on his the choice of road feeling, but the judge only has roaming to make a fair ruling mission, he will be guided along a road, no matter where......" (forty-fourth pages) methods of legal reasoning judge in judicial discretion in the process, also clearly illustrates the "conclusion (target) dominance". The essential feature of the legal argument is: on the one hand, the judgement in argument before, on the other hand, must argue for judgment. Thus, the actual decision process seems to be: "identify problems, setting goals, looking for evaluation and selection of scheme, selection scheme, implement a selection scheme". In the whole process, the main work of the judge is: imagine the decision scheme may, in order to implement an optimal selection scheme.

 Judicial discretion of judges by the legal process is a process of forming method of verdicts in theory. No doubt, the key, a judicial skilled judge more easily to the legal issues, however, in the judicial process, once the technology and process dominates, will cause the red tapism results -- for all the suffering the people, this is a sad thing. As the French jurist Gagwe Ellul said: the judicial factor (mainly refers to the organization) is no longer bear seeking justice or in any way to create legal responsibility, it bear law responsibility. This effect can be purely mechanical, it needs no philosopher or person with a sense of justice, it need is an excellent technician, he clear principle, reveal the rules, legal terminology, and deduction conclusion and find the answer for. But the law has some concerns, they cannot do it from the law completely out of justice and not to feel the pain of conscience. (seventy-sixth pages) a sense of justice is essential to the legal person, "the judge's conscience is the ultimate guarantee of social justice". In the judicial process, the sense of justice to judge must carefully sorting, screening and examination of all relevant materials, the final decision may be all not enough to affect the case, but forcing judges must make their own judgment from any possible mistakes, only such a judge that justice is how one and the same.

Adversarial trial mode in theory more in line with the neutrality and passivity of justice. The adversary process logic presupposition is, "the truth jumps over argue bright", in the case of both sides seek to win "fight", the authorities can discover more facts. However, full of the smell of gunpowder trial, we may be far away from the truth and. The legal fact judge the determined is recognized within the scope of the statutory and is supported by some evidence of the fact. Then, the witness testimony is credible? Witness, "the strange environment and its accompanying anxiety and haste, the witness may be trick or intimidation, lack of enough to arouse memories can clarify questions every problem, and cross examination caused confusion...... May lead to significant errors and ignore." (530th pages) on the lawyer, the court is not his master, his loyalty to his client. Although the law does require lawyers as their official duties, but this duty is their dedication to the customer. In the fierce adversary, the lawyer occupation morality to a qualitative change: justice is on your friends is good to your enemy is evil. Although the law does not allow a lawyer in court lies, but not against his own party if it is his duty; although the lawyer that his client was guilty, but he still want to dig three feet like to find justification, in fact, in order to achieve every person's right to counsel, in order to make the law more willing to undertake legal case to case, whether rational problem of fuzzy, that is to say, "do not know whether the case in science, not a lawyer, but the law" (page 532nd). Just as a kind of occupation ideal, corrosion in a way, because the justice culture makes people hard to lawyer's life is the priest's, when the target except for justice and compassion and hope. Compassion is the advice of the core, and the lawyer advice is most of the time in doing things. Most of the time, the distribution is not a lawyer, use or service to justice, but service to those who know and want to know how to survive. Claimed that the occupation culture on justice concerns, usually unrelated to this cause, it makes the compassion becomes more difficult, so the occupation culture make things worse. Absolute concern for justice in the occupation of culture, which is usually a forced not to express their truth discourse, occupation, culture makes things worse. If this is indeed the case, then the trial is objectionable, because it means that the actual people, money, resources possession will be the important factors about favorable evidence.
Modern technology is stepping up to the court, the trial process and therefore increased the number of high-tech factors. Science must make the trial process to achieve accurate? If so, then the laboratory than the court is more suitable for solving social disputes, special science and technology, people have to make them legal issues than the judge is more qualified to evaluate facts, intentions or motives and the like, thus proves that the method to solve the vending machine type disputes is feasible. However, ask yourself, do we really want to waste the judge, the court, and a diagnosis of science and technology to deal with social problems? "Public instinctively expect judicial operation is not only to elicit the truth and the application of the law, but also to meet the social and community other value." In the diagnosis of acceptance of science and technology, people will lose his subjectivity, which means he had to suffer the violation of science and technology on its will and other secret. "Every technology abrasion of human dignity, the dignity of an epidemic of not even if it is not, or at least become infectious disease."

Although our traditional judicial pattern has many shortcomings, but in its forward every step of human dignity will not ignore as behoove. However, after all, dignity and the truth of the balance to tilt, will depend on a society is efficiency or freedom of choice.

 

 

 

 

 

 

"The door" legal sense

  I tried to peep at the law after the gate of the world, eager to see the light of justice, but when I see the light, I hesitated -- this is I think the first equality and justice?                  -- "

 

  In fact, hurriedly read about 2000000 words, probably on the content of the book misunderstanding. But for a just set foot on the legal child, self feeling seems to have enough.

 The thought that the law has a quality link and justice light, but after reading the "law" and "the door of underground judges" after it was found out that he is so naive. Indeed, the law is the human in the social hierarchyRule,SociologyThe relationship between man and manStandard. It takes justice as the foundation of its existence, toCountryEnsure the forceImplementationAs a means of.Rule by lawAnd the law must become gradually proper tolerance to facilitate the socialHarmonious. But the theory and reality has a gap, the execution of the law sometimes subject to changes in the actual situation and become blind ridiculous, after all, the rule of law is a general universal will, not necessarily fully applicable to the specific cases. Secondly, law enforcement is the person, each person's world view, values, outlook on life and the difference between people and people will directly affect the quality of law enforcement. Sometimes, the justice and equality is only a part of people to beautify their deprivation, and the law is the most powerful tool they run amuck. Therefore, the law can be used to justice, can also be used to destroy a conscience.

 At present, the purpose of law education is to change people, through experience make people become another way -- from the legal laymen into legal person new. He provides the ability to use the rule of law and to solve the legal problem for us, so that we are faithful to the law occupation values. Remember Liu said we would all be cunning after 4 years, it is the external manifestation of legal values? Is it as a legal occupation would have to accept their present stage do not agree. If you really like, and have to distort the truth in order to client, had to hide their true wishes, had to hurt innocent people, I just hope I can remember he had the bright side, we have stood in the Justice Party, I hope this social moral community to forgive us.

 The book begins with a fable of Kafka, a country people with the skills and the civil law and hopes to think method, the hall is accessible to anyone at any time. However, the gatekeeper is blocked in the entrance, also cannot let him go in now, hinder the realization of citizen's desire for the method. The people in the country at the door waiting for a lifetime, in his last dying in the world, the people are called his ear: "except for you who also could not be allowed to enter this door, as it is for you to open, and I'm going to shut it now" for the law, I still like a countryman as ignorance, block in front of me gatekeeper is each kind of strength to interfere with our approach of law and justice. Perhaps at the moment we feel hesitant and helpless, and even doubts about the law, really afraid of the future has been thought that the law occupation, nature only to the countryman, still remain in the law out of the door. We are working on a set of known as the rule of law, but also foolish enough to think their service to justice, actually being rules using, we just interest group a chess.

 Perhaps, I see in this book are defects of current American law, accept criticism too much, and perhaps they too tend to think that learning legal certainty, learning is the process of a highly painful and naturally closed has nothing to do with the legal occupation perceptual intuition feeling and other faculties, hope in their future learning to have better understanding, take me out of the fog, through this piece of thorns.

 There is no absolute right or wrong in law and emotion world. Hope I can with a conscience, loyal to the law, to justice.