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English common law

2019-01-30 来源: 51due教员组 类别: Essay范文

下面为大家整理一篇优秀的essay代写范文- English common law,供大家参考学习,这篇论文讨论了英国的普通法。英国普通法的独特性来源于它的传统主义法律历史观,这种法律历史观与发源于欧洲大陆的历史主义法律历史观形成鲜明的对比,进而影响到西方世界对于法治概念的整体理解。普通法是一种实证法,是着眼于现时的法律,它要求经过程序化重构的某些具体的历史真实产生对现实问题的解释力,从而获得规范性,而拒绝那些来自过去的、没有经过专门加工的、具有整体性的理念的影响。

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The common law tradition, in a nutshell, is that judges confront reality by appealing to history. Most beginners of law have a basic impression of English law, that is, the common law is a law focusing on historical traditions. Lord pollock of England confirmed this general view, saying: "I am a jurist; In my opinion, it is impossible for a man to understand English law without much more knowledge of historical criticism than is usually found in textbooks. Similar discourses are common in British and American legal works. Thus it can be seen that history and jurisprudence have a natural connection under the common law tradition, and even the common law is one of them. Even if they are separated, history is in a more fundamental position.

But in the common law tradition, history is not understood as a concept of time as opposed to reality. The past cannot be recreated, so history and reality coexist in the present. They are the connection between the known "critical reconstruction" and the unknown "possibility selection". Despite the seeming common people can according to the social, moral, knowledge gained from experience or more, a philosophy, a religion to guess that link, but only by skilled judge accurately discern this association, and on the premise of meet the requirements of procedures designed to decide how to reconstruct history of judgment, as well as how to "discover" in a wide range of possibilities in the parties seem to have been a very appropriate solution. In addition, judges are required to impart their own personal skills to the younger generation in the process of learning from the older generation.

In 1607, English judge Edward kirk first explained the difference between acquired technical rationality and innate natural rationality in "forbidding the king to hear the case". He pointed out: "technical rationality needs to be acquired through long-term learning, observation and practical experience. It is not owned by everyone, because no one is born a technical rationality. This judicial rationality is the highest rationality. Thus, even spread to all in the mind of reason to a person's mind, he still can't work out laws like the law of England, because in the continuous generation after generation inheritance, in the long years of the law of England got countless serious, knowledgeable of repeated temper, through long-term practice to get this perfect, used to rule the kingdom."

Thomas Hobbes, a political philosopher, did not think so. In his opinion, technical rationality is just a kind of packaging of natural rationality. It should not deviate from natural rationality, and if it does, it should be balanced. Therefore, technical rationality is nothing more than judge kirk once again using his usual skills to separate judicial rationality from human rationality. Its purpose is to separate "what elites think" from "what the public knows" on the one hand, and "the power of the court" from "the power of the king" on the other hand. To this end, Hobbes wrote the dialogue between philosophers and English lawyers, in the hope of showing the legal profession that "a man in his clothes is a man."

Judge Matthew hale responded by accusing Hobbes of being a "loose cannon" who ignored the political reality of the monarchy denying its subjects their freedom in the name of natural reason. Most people who believe in technical rationality believe that judge kirk's theory is more historical. Judge kirk emphasized the self-sustaining character of the common law without external interference, which is guaranteed by the stable inheritance of skills between generations. Moreover, based on the law's demand for certainty, judges cannot act arbitrarily like philosophers, and their independent thinking and discretion are also strictly limited by historical materials. To the average person, the law is very restrictive. But judges of skill, even when they speak freely, even when they let their emotions rule them, always base their opinions on just the right historical facts and meet the requirements of a strict legal process. It can be said that craftsmanship builds a "free kingdom" exclusive to legal people. As for this function of craftsmanship, judge kirk attributed it to "perfection after long-term practice".

Since neither jurist nor philosopher could persuade the other in the debate, only one definite result could be reached: no matter how many people accepted the concept of technical rationality, at least the group of judges accepted it unconditionally. This controversy makes the boundary of the legal circle clear. Those who examine historical materials based on the present are insiders, while those who do not are outsiders. The legal people form a "community" based on unique historical philosophy. In other words, it is this unique view of history that makes common law not assimilated by natural law.

Since judge kirk did not face a challenge from a true scholar of Roman law, such as savini, he had no opportunity to explain the other question, why should technical rationality not be replaced by "the historical logic of the law"? This may be explained by a distinction between the common law and the common law.

The common law is first and foremost a positive law, which looks at the present. It requires some specific "historical truth" reconstructed through procedures to generate explanatory power for real problems, so as to obtain normativeness, while rejecting the influence of those ideas that come from the past without special processing and have integrity. In other words, the judges of ordinary courts are not responsible for "justice", they are only responsible for the professional credibility of individuals, which is mainly based on the legitimacy of the process of dealing with individual cases. By contrast, equity, which follows the opposite logic, is not law at all but a means of redress, and the justice who applies it is not a judge but a moralist.

Therefore, although the common law recognizes the continuity between the past and the present, it does not recognize the consistency between the past and the present. When a judge makes a distinction between "judgment grounds" and "incidental opinions" in a past judgment, he does not need to consider whether the judgment is reasonable in the past environment and background, but makes a choice based on the actual problems faced at present. This is because, he knew that once made the old ruling the judge is also in full consideration of the actual problems of the present his conclusion, himself without question his original intention of authenticity, also need not predict the purpose of good and evil, and he also knows that he is ruling is likely to be a judge in the future considering that the current practical problems when his not questioned the use of the material. In other words, the judge does not need to prove that "real" history, they just believe always sentence is "real" history, because he always believe that it is based on him about his judgment are believe that the basis of ruling: if he doesn't want to be remembered by doubt, so don't doubt his predecessors. It can be said that in the common law, the relationship between the past and the present is a continuity connected by "trust" rather than a consensus reached by "reason" embodied as a certain substantive reason. Thus, judges have neither the idea of "dredging up ideas from the past" nor the habit of "thinking in terms of the longer term". In their eyes, "reality is reality besides reality". The only thing to do at hand is to rearrange and combine some normative units of historical materials according to the reality, or to create new normative units to provide satisfactory answers to practical problems. In short, the common law does not recognize the past, but the present in the past in order to recognize the present in the future.

This view of legal history does not regard history as the independent existence which is opposite to reality, but thinks that history exists in reality. History is not a basic knowledge of reality, but a reflection of the needs of reality. But the history as a kind of knowledge can only be obtained from the revelation of god. Therefore, the shortsightedness of judge's vision guaranteed by skills is not a bad thing, but is conducive to reducing the inevitable subjectivity influence of judges in the process of case processing. After all, judges cannot compare themselves to gods.

Of course, under the influence of this view of legal history, many people from non-common law countries feel that the common law is a world closed to them. The common law seems to lack the universal values that communicate with people from other lands, leaving behind only a few legal proverbs that are specious and do not have any certainty in their application. Even if it is the most basic principle of conduct, judges of ordinary courts must go through several times of separation and selection of technical processing, and disassemble it into applicable normative units. In ordinary people's eyes, this kind of simplified "technical work" is quite mysterious. However, it is also due to the existence of closure that the common law excludes the possibility of "other governance", forming an autonomous system with the judge's skill and rationality as the core.

Similarly, in this view of legal history, the skills of judges, even if they come from the past, are skills that have meaning only in the present. One cannot expect judges to use their skill to produce some sort of grand argument that runs through the ages. Therefore, the saying that "judges make law" often gives people misunderstanding, and it exaggerates the role of judges. In fact, even if judges can make law, they can only make common law that focuses on practical issues, not divine law. Of course, it is a judgment from practice whether the craftsmanship is exquisite. It contains two aspects, one is the objective exquisite skills, reflected in the judge's external calm, skilled, capable, logical, informative; The second is the public's belief that judges are skilled, that their decisions are always well thought out and contain a sense of the larger picture that is imperceptible or even incomprehensible to the average person. Therefore, a judge must be not only a professionally trained person, but also one who is intellectually superior to ordinary people, and who can win respect and awe from others in appearance and conduct. Like history, jurisprudence in the common law tradition is not a science, but a body of knowledge based on one's beliefs, owing to its reliance on individualized techniques.

In general, this view of legal history with inheriting skills and rationality as the core is the traditional view of legal history.

Common law originally refers to Roman law, especially the Roman law that began to be revived in Europe after the 12th century with the "corpus juris Justinian" as the annotation object, and later became a legal concept under the "historicism". The concept of common law is based on the concept of law. Although common law also has the characteristics of positive law, it is far less effective than statutory law and common law in reality, and only ACTS as a factor of equity in the source of law of continental law system.

In the view of the common law, first, history is an autonomous existence, and history has a constructive influence on reality: people's understanding of reality is based on nothing but several understandings of history. Second, reality and history are opposed by the antithetic relation of the present and the past in time, but they should be identical in soul. As savini said, "the legal system of a people, like art and music, is the natural embodiment of their culture and cannot be imposed on them from the outside." It is based on this spiritual consistency that common law means common across not only space but also time. Of course, as well as common law, common law also reject some transcendental nature rationally, but opposed by common law is not natural rationality itself, but its relying too much on the gift of faith, have taken their communication ability of history and reality, or common explanatory power of history and reality, the so-called "historic". Third, the common law is against the theory of success or failure based on reality. For this reason, people should abandon the various concepts under the present, because these concepts have not been subjected to the judgment of history, and then put themselves back to the past, to observe the autonomy of history, find the spirit of history, and form a judgment standard of reality based on this. Fourth, the common law appeals to history for the purpose of criticizing reality on the one hand and the utopian long-term consideration on the other hand. Thus, in the view of the common law, the past, the present and the future are of equal importance in the face of "history".

In general, just like the enlightenment jurists, the jurists under this historical view of law are charged with the mission of "criticizing the reality" and "planning the future". They are in the present, but stand on the opposite side of the powerful, targeting the "evil of the present"; they explore "real" history while respecting the autonomy of the past. In this process, they search for a historical spirit that can eliminate the contingency of events, that is, "historical", until the formation of a universal value with strong explanatory power.

However, the common law, like all natural law theories with grand ideas, is bound to suffer setbacks. The more it emphasizes the consistency of the relationship between today and ancient times in the aspect of necessity, the greater the contrast between reality and history in the aspect of reality. Moreover, the modern concept of time is also constantly aggravating the gap between reality and history. Faced with the problem of "how to return to the past", most jurists seem helpless. Similarly, the more the common law emphasizes the internal driving force of the development of law, the more difficult it is for people to see the boundary of the "community" of law. Moreover, the political practice from augustus' Roman empire to the third Reich of Germany shows that if a certain view of legal history tries to push legal interpreters to the level of overlooking all beings and standing shoulder to shoulder with god, it has the potential to lead to disaster.

Compared with common law, common law's view of legal history should be summarized as historicism's view of legal history.

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