19、盧梭觀點：立法者義務
Recognizing the dilemmas associated with instituting a system of laws in a new society, Rousseau places most of the burden on the Legislator. It becomes the Legislator’s duty to guide the people towards the common good. However, pointing the people in the direction of the common good will not just come as a result of the Legislator’s high intellect nor his sound reasoning ability. Instead, the Legislator will have to appeal to a higher force, that the people are more comfortable with and trusting of. Rousseau states, since, therefore, the legislator is incapable of using either force or reasoning, he must of necessity have recourse to an authority of a different order, which can compel without violence and persuade without convincing. In this passage Rousseau is referring to the use of religion as an instrument of politics. Religion becomes a means of motivating people to subject themselves willingly to the law. It appeals to the man’s primitive instinct of survival. Motivation arises out of the fear and awe people have of divine power over them. They not only see the potential of civil sanctions, but they also the fear heavenly retribution. Likewise, they see compliance with the law as a means of receiving favor and blessing of God. According to one author, religion remedies the effect the cognitive deficit the Legislator encounters with a new people.
20、盧梭觀點：社會和法律
Should we obey an unjust law? According to the theory of Jean-Jacques Rousseau, 18th century French political philosopher, in a democratic society the state represents the general will of the citizens, and that in obeying its laws each citizen is pursuing his own real interests. Thus, in an ideal state, laws express the general will. An individual who disagrees with a law must be failing to look at things from the moral standpoint. Rousseau is talking about an ideal state where laws express people’s general will, a will that aims at the common good. But the question is:are we living in an ideal state and do all the laws of our land express the common will of the people and should we obey all the laws even if they are unjust? The answer to this question can be different for different people.
21、盧梭觀點：公民信仰
Rousseau calls for people to adhere to civil religion. He asserts that it is the Sovereign’s duty to require a purely civil profession of faith and to establish the dogmas of a civil religion. Furthermore, the Sovereign can banish any man who does not believe these tenets. However, one is not banished for being impious, but rather, for being unsociable. Keeping this in mind, one can address the reasons why Rousseau feels a civil religion is necessary. For Rousseau, this type of religion motivates people in two distinct ways. First of all, for people in emerging societies, it creates fear and awe of a power larger than the state. Rousseau characterizes people in these new societies as incapable of understanding the real purpose and principles of law. In turn, he fears that the ignorance of the masses will interfere with their obedience of civil law.
22、盧梭觀點：法律與公民信仰
Rousseau suggests that civil religion will create an invariable bond between people and the law. According to Rousseau, the law, by its very nature has force. However, when linked to religion this force is increased. It is evident that one will have duties in society regardless of the presence of religion. Simply put, they are requirements of civil association. However, it is not required that citizens love these duties. This is where civil religion fits in. It is a means of creating the love people have for their duties and moral responsibilities. This love of the law is unlike that created by the religion of the citizen. While both provide a strong link between the individual and the law, a civil religion does not turn the state into the object of adoration. Nor does a civil religion emphasize intolerance. In fact it emphasizes just the opposite point of view. Rousseau states, tolerance should be shown to all those that tolerate others, so long as their dogmas contain nothing contrary to the duties of a citizen. In turn, the Sovereign is not concerned with whether or not the dogmas of the civil religion are right or wrong but instead with the moral, social, and political consequences it brings forth. Clearly, one can see that Rousseau takes seriously the function of religion in society. He outlines four very different types of religions in his texts but calls for adherence to only one, civil religion. He sees this type of religion as serving a motivating function. For people in emerging societies who are unable to understand the purpose of law, civil religion motivates them to obey out of fear. For those in developed societies, the motivation to obey the laws comes from a love and devotion to the law.
23、法律實證主義者
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.
24、法律現實主義
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.
25、美國律師要遵守道德規範
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 2007,47states 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.
26、實用主義觀點：一個想象中的社會契約
To escape from the other difficulties, a favorite contrivance has been the fiction of a contract, whereby at some unknown period all the members of society engaged to obey the laws, and consented to be punished for any disobedience to them, thereby giving to their legislators the right, which it is assumed they would not otherwise have had, of punishing them, either for their own good or for that of society. This happy thought was considered to get rid of the whole difficulty, and to legitimate the infliction of punishment, in virtue of another received maxim of justice, Volenti non fit injuria: that is not unjust which is done with the consent of the person who is supposed to be hurt by it. Even if the consent were not a mere fiction, this maxim is not superior in authority to the others which it is brought in to supersede. It is, on the contrary, an instructive specimen of the loose and irregular manner in which supposed principles of justice grow up. This particular one evidently came into use as a help to the coarse exigencies of courts of law, which are sometimes obliged to be content with very uncertain presumptions, on account of the greater evils which would often arise from any attempt on their part to cut finer. But even courts of law are not able to adhere consistently to the maxim, for they allow voluntary engagements to be set aside on the ground of fraud, and sometimes on that of mere mistake or misinformation.
27、自然法理論
Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarized by the maxim that an unjust law is not a true law, in which “unjust” is defined as contrary to natural law. Natural law is closely associated with morality and, in historically influential versions, with the intentions of God. To oversimplify its concepts somewhat, natural law theory attempts to identify a moral compass to guide the lawmaking power of the state. Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or wrong can vary according to the interests one is focused upon. Natural law is sometimes identified with the slogan that “an unjust law is no law at all”, but as John Finnis, the most important of modern natural lawyers has argued, this slogan is a poor guide to the classical Thomist position.
28、甘地的非暴力不合作策略
Gandhi remained in South Africa for 20years, suffering imprisonment many times. In 1896,after being attacked and beaten by white South Africans, Gandhi began to teach a policy of passive resistance to, and non-cooperation with, the South African authorities. Part of the inspiration for this policy came from the Russian writer Leo Tolstoy, whose influence on Gandhi was profound. Gandhi also acknowledged his debt to the teachings of Christ and to the 19th-century American writer Henry David Thoreau, especially to Thoreau’s famous essay “Civil Disobedience.” Gandhi considered the terms passive resistance and civil disobedience inadequate for his purposes, however, and coined another term, satyagraha （Sanskrit for “truth and firmness”）. During the Boer War, Gandhi organized an ambulance corps for the British army and commanded a Red Cross unit. After the war he returned to his campaign for Indian rights. In 1910,he founded Tolstoy Farm, near Johannesburg, a cooperative colony for Indians. In 1914、the government of the Union of South Africa made important concessions to Gandhi’s demands, including recognition of Indian marriages and abolition of the poll tax for them. His work in South Africa complete, he returned to India.