《波斯纳文丛》总译序（Posner's total series）

1、波斯纳文丛总译序（Posners total series）OneThis series is a long process of accumulation.I began to translate Posners works from 1993, which was published in 1994. Since then, he has read many of his works, but the author is so fast that the scope is so wide that he has no or no ability to read all his works.

2、 But since 1996, in view of the Chinese theoretical studies of the narrow field of vision and a general lack of social science knowledge, lack of humanities depth, also in the light of hope China judges understand the foreign judge professionalism and academic accomplishment, I always wanted to make

3、 a two volumes of Posner anthology. In under the guidance of this idea, but also to intensive reading, I have now some sections of small paper continued selected translations of judge Posner and many works, including beyond the law, rational, and law and literature, judicial economics and other work

4、s. By 1998, has translated 80 words about. Also contact the copyright, but ultimately not implemented, and even failed to modify the final draft. The draft on the computers hard disk dormant for a long time.In 1998, the problem I feel a lot of jurisprudence issues, in addition to some missed embarra

5、ssing, the biggest problem is the translation just returned to Chinese expression quite strange, and a strange idea was based on, hoping to keep English grammar, so too the Europeanization, must make readers very headache. I feel guilty, and decides the retranslation of books, 1999 years to complete

6、 the first half of the translation.In October 1999, I went to Harvard as a visiting scholar, better read some of Posners works; and the same is only for reading, I translated his new book legal and moral questions theory. Since then, due to the laws of the United States series of projects, China Uni

7、versity of Political Science and Law press and about my translation of Posners beyond the law in the book, I also promised. The confluence of many factors, so I am determined to make a series of 00 pieces of translation into a large translation project.In May 2000, to arrange the Yale University law

8、 school professor Owen Faith and Professor Ge Viborg, I from Campbell Bridge flew to Chicago, met with judge Posner, which also talked about my plans and decisions. When parting, judge Posner agreed to my request.After returning in August 2000, began a series of work. China University of Political S

9、cience and Law Publishing House President Li Chuangan, editor Zhang Yue, Zhao Ruihong and other positive and great support. In conjunction with the press together, I was very troublesome copyright and trade ties. At the same time, I also enjoy, especially using the summer vacation, and organize the

10、translation. Therefore, only the set of books at present, completed a wish for many years.TwoFrom the above description, this series seems to be completely product, an opportunistic process even, critical point, not I did not reduce the sunk cost of their own (sunk cost) intentions. However, in gene

11、ral, the book selection is planned, have to consider.As mentioned above, my choice of translation is targeted, one is for legal research, especially jurisprudence; two is for readers, including judges.There are many weaknesses of current China law research. The first is self limiting, engage in juri

12、sprudence is engaged in some traditional concepts, such as the rule of law, constitutionalism, justice, and so on, all add a little popular or even have more or less strong ideological implications of discourse, the rule of law, judicial reform, modernization, globalization and human rights. This ad

13、vanced theory, big law in fact and as the practice of law, especially the law department have little direct relevance; and recently I heard in the Law Department scholars half joking laugh and said: you do seem now to engage in all legal judicial reform. This situation,Although it reflects the impor

14、tance of judicial reform, legal researchers have paid more and more attention to it; on the other hand, it also illustrates a problem. Jurisprudence may indeed face some difficulties. Perhaps this situation as Posner said 30 years ago that American jurisprudence has entered it, the Twilight (beyond

15、law). Jurisprudence must seek new ways. The topic of judicial reform may lead to a stimulus to form a new academic growth point, but we must be aware that this is not all. We must develop the theoretical research of law.Another major weakness in the study of law in contemporary China is the lack of

16、research directed by social sciences and the lack of empirical research. Domestic law and economics, sociology of law, legal anthropology, and so on, have mostly stayed at the level of introduction or ought to be. Both the lack of quantitative research, but also the lack of detailed case study on pr

17、ecision. Often no one without personal emotional truthfully vivid description. About the text in the Chinese mind itself is sacred, so if you use the text objectively describes some not so good things, and the objective of the ideal of the rule of law or accepted principle questioned, you may have a

18、 problem that the political position, you will need to upgrade the value you must put up these descriptions to conform to the ideals and principles. In this state of mind and the atmosphere, the text into a filtering and screening study and research, and not at all such settings. Political correctne

19、ss has been in the Chinese circles rapidly localized, some scholars on the one hand is a reason against the abuse of native resources, but on the other hand, also built in China has been accounted for by rapid strong moral discourse, dig out the local resources of political correctness . The fact th

20、at law is an ancient discipline, this description has become old, traditional law should adhere to the rhetoric and casuistry refused to strengthen the social science research break traditional reason specification into law, refused to the times . It is necessary for the development of rule of law C

21、hina specialized in a certain extent, has become a tool of knowledge creation, mysterious, ordinary people, refused to kick up a cloud of dust to enter in order to obtain because of the monopoly and the occurrence of high monetary and non monetary rent. Of course, this is not a common phenomenon, bu

22、t this phenomenon is spreading. More common is the jurists legal problem general hair feeling, make a view; although these feelings, opinions and not much legal or other academic meaning, but because in many practical transactions, the quality of goods are not valuable, but the brand of goods. So th

23、e law circle will not be an exception. In my view, the real reduction of this phenomenon may be academic competition, including, especially, competition from other social science knowledge and methods. That is, beyond law.Therefore, this book readers may first is law researchers, some theoretical in

24、terest in legal practice, which also includes some of the judges. China judges status has been a concern for me. Chinese judges are generally inadequate in their knowledge and professional quality. Even if a few judges with higher educational background, but also to adapt to a modern society, an ind

25、ustrial and commercial society, there is still a great distance. This situation can not be changed in the short term, even in the beginning of the unified judicial examination, we can not expect too high. Because of legal education China itself is facing an urgent problem of knowledge transformation

26、. I certainly didnt expect to read books will change the status of the judge. But at least, these works will remind some judges and even future judges, because Chinese judges may, to some extent, meet the problems that judge Posner has encountered sooner or later.This book is the most careful reader

27、 may eventually is now in school, because, due to various reasons, todays China have in truth and jurists, so they are little or no reading.But even if it is for the students, this book is worth the translation. Even, I expected the potential readers this book will not completely is a law school stu

28、dent, there may be a sociologist, political scientist, economics and philosophy of the students. Indeed, Posners works did his pursuit, the effect that the law should make the layman interested.It is for these purposes and for these readers, I have roughly adhered to three interrelated standards in

29、the selection of books. One is to cover every possible Posner dabbled in the field, a comprehensive reflection of Posner; therefore, second, is as inclusive as possible a wide readership, but not limited to legal readers; and third, I hope these works can show the law of cross disciplinary research

30、and the law of the possible contribution of other subjects. And finally, perhaps a few more words. In recent years, some jurists and students felt economics and sociology of imperialism, some love thought and philosophy hobbies of the students often like to read across other disciplines, even feel n

31、ow in the knowledge structure, little contribution law. But I believe that Posners works can eliminate the illusion of people. The law can be interesting; perhaps no law for the development of other disciplines to provide what the general idea and methodology on the contribution, but I believe that

32、Posner read these books, readers will feel the same knowledge of traditional jurists may contribute to the understanding of other disciplines, especially in the understanding and treatment of the details of the system on. Perhaps, due to its practical and secular nature, its knowledge contribution i

33、s not destined to be a grand theory, but a microscopic institutional understanding and disposal; it is to do things well (not good).Therefore, although all of the works here are related to law, they are also related to some other subjects and problems. Problem, beyond legal jurisprudence and moral a

34、nd legal theory questions, Posners works of jurisprudence trilogy, and many schools of Zhu jurisprudence, philosophy of law, law and sociology, political philosophy and moral philosophy. A large part of Justice / justice economics is related to the early civil society and some informal social contro

35、l, while the rest is related to privacy. The forefront of legal theory is related to economics, history, psychology, epistemology, statistics. Law and literature are not only literature, including classical literature and popular literature, but also related to hermeneutics, and even intellectual pr

36、operty law. Sex and reason are related to sex, family, marriage, homosexuality, pornography, and on the other hand, as a knowledge tradition, it draws a lot of insight into sociobiology. (aging and aging) respectively and the elderly, aging and social science. Antitrust law has a great relationship

37、with economics. The federal court not only studies a specific judicial system, but also relates to politics, especially judicial politics and institutional theory. Public intellectuals (and especially with law and sociology of knowledge about intellectuals). Of course, all these so-called relative a

38、re relative, in fact, almost every book has read different subject knowledge. These are really the cross disciplinary research. Comparatively speaking, the main concerns of the first six books are more of the theory of law; the latter five works, however, have been widely explored, but they are more

39、 focused on the application of the theory of law in specific fields. Of course, the conclusions of these studies are not always right, so dont take it as a conclusion, cite it as authority, as truth, but as a starting point for further research or even criticism. They are not necessarily the forefro

40、nt of other disciplines, and they do not adhere to a coherent theoretical system of discipline, but perhaps this is the requirements and destiny of jurisprudence. The law emphasizes on practice, the judge must deal with the problem in finite time, they cant wait all the knowledge in order to follow

41、the prescribed order to make only a correct decision and didnt allow him to wait until the cucumber dishes are cold. He is more, with summary of Posners words,A clear mind to deal with or deceive the past. Therefore, to mobilize all knowledge resources, in the framework of the existing system is not

42、 only to work, but to do nothing.And this is the pragmatism, at least Posners brand of pragmatism, which is a new kind of jurisprudence.For Posner, many Chinese legal practitioners have been familiar with his name and some works, but there are many misunderstandings. Therefore, I want more than a fe

43、w mouth, as a possible concise introduction.Posner was born in a middle class family in New York on January 11, 1939. His father was a lawyer, and his mother was a very leftist (Posner) public school teacher.He graduated from the English Department of Yale University in 1959 and graduated from Harva

44、rd Law School for the first year in 1962. During law school, he served as chief editor of Harvard Law Review (President). He has not won Ph.D, but he has won the honorary doctorate of law including Yale, Georgetown University at home and abroad. After graduating in 1962, until 1967, he worked in the

45、 Federal Supreme Court as a judge of jean cloth can legal assistant for a year, and has worked in other government agencies, also began to contact and study economics, the formation of his academic thought. In 1968, he joined the Stanford University law school, became an associate professor; the fol

46、lowing year, he came to the University of Chicago, Professor; in 1973 a law and economics, brought a revolution to the whole law ( New York review); language) after 1978 became professor of law school. In 1981, he nominated the seventh federal appeals court judge President Reagan (in Chicago) so far

47、, and from 1993 to 2000 as senior chief judge (Dean), and some administrative affairs of the court.During his term as a judge, Posner has been a senior lecturer at the University of Chicago School of law. He has attended at least two courses a year. At the same time, he wrote more than 80 of the ave

48、rage annual appeal verdict views (which means that nearly 2 per week), the number of most in the writing of judicial opinions most federal appellate judges (including Supreme Court) of the column (than the United States federal appellate court judge average judicial opinions written about two higher

49、 times). Importantly, unlike most of the judges, without legal assistant Posner from the byline, he always go into battle (or small). He spoke out, using one of my former legal assistants I met, saying it was a piece of manuscript, almost without modification. He is not only the output quantity, and

50、 the quality is very high. His appeal judgment opinion is for other federal appeals court judge in the highest citation rate (generally higher than the average of 3 times). And his academic works too, according to several studies in 1999 were found in 1978 after the publication of the 50 most cited

51、law works, Posner accounted for 4 of this (and is in the top 24 of the column), the number of the first; his total citation rate is the highest ever (7981 times), than in the second scholars (Dworkin, 4488) nearly 80% higher. No wonder, a Posners humor is, the rumors that Posner slept every night.Th

52、e numbers may be too boring. And interesting anecdotes about Posners talent, diligence, learned a lot. Here are two things: first, when he was the legal assistant in the Federal Supreme Court, once, all justices voted to decide on a case, and appointed judge justice ran to write judicial opinions. A

53、ccording to custom, judicial opinion at least by writing the first draft legal assistant. But it was not because he could say the contrary, or Posner listened, or even others, Posner wrote a judicial opinion contrary to the Supreme Courts decision. However, this opinion is not only convinced jean cl

54、oth can judge, and persuaded the Supreme court. The final decision also yielded according to the views of Posner do. Of course we can praise equals the justices, good advice,But this is enough to prove that Posner is a truly brilliant talent (of course, different people may also draw many other posi

55、tive and negative or doubtful deconstruction thoughts: judges are especially some China scholars - apotheosis of the sense of responsibility, wisdom and diligence, in the case from the uncertainty and so on, casually you want to go!) remembered that Zhang Wuchang had described what he called the mos

56、t famous economics debate in the history of the party, Coase for the Federal Communications Commission a text including Freedman and other 15 large economists debate, finally let the opponent completely disarm academic story. This anecdote of Posner enough with the story of Kos is comparable; if onl

57、y on the knowledge of the event itself, the story not only favorably, even more outstanding: because Posner is living with politics and rank in a field, he is as a subordinate, rather than as Kos is as equal scholars to participate in their debate, and we know that different areas within the rules o

58、f the game are not the same. And this is a case that has been initially decided. Perhaps the academic significance of the case is not as significant as that of Coase, but it has greater direct practical significance.The other one happened in 2000. A decision on Posners seventh tour of the Federal Di

59、strict, the majority rejected Posner (to judge as temporary area court) a verdict. But in the first footnote to the beginning of the judicial opinion, the judges wrote as Posners colleagues wrote:At that time, the Federal District Court judge decided the case in urgent need of new chief justice Posner, our willingness to take the local judge, hearing the case, this fully demonstrat