Brian Tamanaha on Legal Realism in Context(Brian Tamanaha論脈絡中的法唯實論)

Brian Tamanaha在SSRN上面發表了一篇文章:Legal Realism in Context,原文是收錄在由Elizabeth Mertz所編輯的New Legal Realism,第一輯(2015年將出版)。這篇文章將法唯實論放回到當時的脈絡中,探討當時的法律人例如Llewellyn怎麼想以及看待科學與法律的關係。或許,對於當時法唯實論的結論可以從這句作結:

“By widening the lens to look at views expressed by prominent figures in the decades leading up to the Llewellyn-Pound kerfuffle, we learn that jurists already assumed that law is a means to social ends- indeed it is hard to find anyone who denied it- and many agreed that one must go beyond legal doctrine to understand how law actually functions. They understood that judges subtly change the law through interpretation, thereby making law. Jurists had for decades recognized the manipulability of precedent and understood that judicial decisions were sometimes influenced by the background views of judges. They were aware of what was plain- that high court decisions frequently divided along political lines. We learn, furthermore, that prominent legal figures had advocated the scientific study of law in action and that incorporation of empirical perspectives in legal education. We also learn that genuinely radical critics charged judges with class bias, vehemently, from the mid-1890s through about 1915, voicing skepticisms that make the legal realists look tame by comparison.”

而Tamanaha教授沒有明說的是他對於形式主義的反駁,這可以參見之前的轉載(按此閱讀)。Brian Tamanaha的這一篇文章,推薦閱讀


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