司法判决的理论

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【作者】庞德,R.

【内容提要】

There are many signs that our law is on the eve of a period of creative activity analogous to the two classical creative eras in our legal history the seventeenth century, which made the feudal land law of medieval England into a system which could go round the world in the nineteenth century, and the time just after the Revolution when English legal institutions and English legal doctrines were made over to conform to an ideal of American society by a criterion of applicability to American conditions. In each of these creative eras lawyers had a lively faith that they could do things by conscious effort intelligently directed. In each they were guided by a philosophical theory of natural law. In each they turned to comparative law to give concrete content to abstract ideas of natural law. In each they sought to bring the legal and the moral into accord, and thus brought into our legal materials much from outside of the law. One has but to read the proceedings of our bar associations to perceive a revival of faith in the efficacy of effort which is in marked contrast with the juristic pessimism of a generation ago.

【关键词】Judicial decisions; Nature law; Common law ideas; Jurisprudence

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