ISSN 1008-2204
CN 11-3979/C

从逻辑到经验:霍姆斯实用主义法理学的生成与奠基

From Logic to Experience: Formation and Foundation of Holmes’ Pragmatic Jurisprudence

  • 摘要: 作为美国法律史上一位里程碑式的人物,大法官霍姆斯的司法意见、法律观念及其相关思考对美国法律思想的塑造与发展产生了深刻的影响;作为一位人生经历极富传奇色彩的人物,霍姆斯法律思想的形成与发展也是一个受诸多因素影响的渐进过程的产物。除了其晚期最终成熟的法律思想,霍姆斯早期法律思想的生成也不容忽视,大体上可分成三个阶段:法律知识的学习积累,法律理论的初步总结,法律思想的渐次转变。在其法律思想的生成与转变过程中,既有在智识层面上受到普通法传统的熏陶与影响,也有在司法层面对美国法律现实的洞察与反思,上述阶段与诸种因素对霍姆斯法律思想的转变及最终的成熟均具有至关重要的意义。

     

    Abstract: Justice Holmes, as one epochal figure in legal history of America, had made many judicial opinions, legal ideas and related thinking, which was always one great influence on the making and developing of American legal thoughts. He, as one legend with brilliant experience of life, had formed and developed his own legal thoughts, which was the production of the progressive process being affected by all kinds of elements. Besides the final maturation of his late legal thoughts, the formation of his early legal thought, not being overlooked, by and large, may be divided into three periods: the learning and accumulating of legal knowledge, the preliminary conclusion of legal theory, and the gradual transformation of legal thought. In this process of forming and transforming of his legal though, there were both edification and influence of the common law tradition in intellectual facet, and insight and reflection on legal realities in America. The periods and elements described above were of crucial significance in transforming and final maturing of Justice Holmes’ legal thoughts.

     

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