GRE写作Issue部分精品素材分享之法律实证主义

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法律实证主义者

Positivism simply means that the law is something that is “posited”: laws are validly made in accordance with socially accepted rules. The positivist view on law can be seen to cover two broad principles: Firstly, that laws may seek to enforce justice, morality, or any other normative end, but their success or failure in doing so does not determine their validity. Provided a law is properly formed in accordance with the rules recognized in the society concerned, it is a valid law, regardless of whether it is just by some other standard. Secondly, that law is nothing more than a set of rules to provide order and governance of society. No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate question entirely.

What the law is—is determined by social facts (or “sources”).

What obedience the law is owed—is determined by moral considerations.

法律现实主义

Legal realism was a view popular with some Scandinavian and American writers. Skeptical in tone, it held that the law should be understood and determined by the actual practices of courts, law offices, and police stations, rather than as the rules and doctrines set forth in statutes or learned treatises. It had some affinities with the sociology of law. The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections.

It has become quite common today to identify Justice Oliver Wendell Holmes, Jr., as the main precursor of American Legal Realism. The law is little more than putty in the hands of a judge who is able to shape the outcome of a case based on personal biases. The chief inspiration for Scandinavian legal realism many consider to be the works of Axel. Despite its decline in facial popularity, realists continue to influence a wide spectrum of jurisprudential schools today, including critical legal studies, feminist legal theory, critical race theory, and law and economics.

美国律师要遵守道德规范

Every state in the United States has a regulatory body (usually called a state bar association) that polices lawyer conduct. When lawyers are licensed to practice in a state, those lawyers subject themselves to this authority. Overall responsibility often lies with the highest court in a state (such as state supreme court). The state bar associations, often in consultation with the court, adopt a set of rules that set forth the applicable ethical duties. As of 2007, 47 states have adopted a version of the American Bar Association’s model rules. One state, New York, follows a version of the ABA’s older ethical model, the Model Code of Professional Responsibility. California and Maine are the only states that have not adopted either—instead these states have written their own rules from scratch.

Lawyers who fail to comply with local rules of ethics may be subjected to discipline ranging from private (non-public) reprimand to disbarment.

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