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(2009-04-23 18:35:55)



分类: 美文


Speech of Justice Anthony M. Kennedy On STLs Dedication Ceremony




 In the United States our law school professors have immense talent, and law schools are influential in government and in society at large. As some of you know, our law review system relies on students who are just beginning to study and to explore the law to engage in formal criticism of decisions made by judges. Judges, of course, are senior to students in years and in experience. But the judges respect and welcome the criticism from those who are just beginning to study the law.


Today we see a different dynamic. Alongside the political science undergrad we find economics, chemistry and literature majors, or even find students have made a professional mark on the world in one field or who have an advanced degree and who are now eager to bring that experience to our venerable profession.


 We can say that law schools train students how to think about simple things in a formal way. This is the path to a world of thought that discovers moral principles and social responsibilities in everyday activities.


 If the law student is to succeed in this worthwhile project, he or she must be patient. the student finds that he or she is required to spend hours interpreting a few little words, or even the punctuation!, in a contract or a statute. To begin with it is necessary to teach certain elementary rules and principles for interpreting documents, enforcing contracts, and imposing liability just so that we can have simple rules to begin managing an evermore complex society. We want to teach a means for reconciling disputes and reaching common agreement through civil, productive, rational, respectful, honest discussion and debate. A student in a law school should learn to argue a difficult proposition in a graceful, diplomatic, courteous, logical way that shows at all times the respect that he or she has for all others engaged in the process.


  For many years my message to law school teachers has been that each of these variations in the Socratic Method may have a certain utility. And it is probably not necessary for the student to know which variation the professor is using. It is of immense importance, though, for the professor to know the objective of Socratic dialogue. Professors must never cease to ask, and to formulate with considerable precision, what their goal is.


 The law, perhaps to a greater extent than other disciplines, does concentrate on the rules and precedents announced in the past. The system of teaching about the past means that we have a formal system for transmitting our whole legal culture from one generation to the next. You cannot transmit what you do not understand. You cannot preserve what you do not revere. You cannot defend what you do not know.


 In the Anglo-American system, of course, precedent is a fundamental precept.The Doctrine of Stare Decisis is the rule binding us to earlier precedents unless a powerful reason is shown to reject them.


 It teaches the importance of precedent but cautions that it will not always suffice for a new era.


  Mencius put to his time─and puts to our time─the problem of the traveler and the child at the well. The traveler is walking in a distant region, far from his own home. He sees a child about to fall from the little wall surrounding a well. Must the traveler go to the rescue?


 My assumption is both in the time when Mencius lived and still today all decent people would say there is an answer. Whether or not the law requires the rescue, morality does. If the traveler who rushes to the rescue seeks to gain friendship with the childs parents or to gain the approval of neighbors and friends to enhance his own reputation, his motives come down to self interest. Perhaps that is not all bad, for many societies reward actions they approve. But there is another explanation for the moral duty to rescue. Mencius tells us the duty to rescue exists in part because the failure to do so would cause shame. And a sense of shame is the beginning of righteousness. A sense of decorum is the beginning of propriety; a sense of righting a wrong is the beginning of justice; a sense of compassion is the beginning of humanity.


The fact that for centuries we have not agreed upon, or even discovered, certain universal truths is not cause for detachment and indifference. By throwing ourselves into these philosophical inquiries and debate, we can establish that link with the past that is essential to our identity with members of human kind. It shows that we care about the definitions of morality and decency, definitions that should shape our future.


 If we find in the reaches of higher philosophy, in the depths of the law and its teaching, a discipline of thought and an elegance of meaning then we can find ways to strengthen the human bond between us. For one scholar the law can begin as a deeply personal undertaking. Some scholars reflect in lonely quiet to find universal ideas that relate to our existence and to discover a higher purpose within the classic traditions of philosophy, the arts, and the sciences. Judges work this way sometimes at the outset of deciding a case. Holmes called it "the secret joy of isolated thought."


 On entering this exciting school each new generation, each new class, each new student will have an opportunity and, at the same time, a solemn responsibility. In this place all who study and all who teach must seek always to define and defend the Rule of Law and to insist that it is the birthright of all persons. For centuries and until the present day there have been rulers who sought to twist the idea of law and to appropriate it for themselves and their own false purposes. In my own lifetime Hitler and Stalin thought of law simply in terms of raw power. They were willing to suppress, even to murder, those who asked for nothing more than simple justice. Their lies were transparently false, yet the regimes founded on those lies fooled millions and were hard to defeat. Their contempt for the Rule of Law was obvious.


 Then too there are subtle, less obvious attacks on the Rule of Law. We must be on guard against these distortions so we do not lose confidence in law as the means to enable all of us to seek and to find justice in our own time. Your duty, your careers must be based on the idea that the Rule of Law is more than order. It is justice. It is dignity. It is freedom and compassion for all of human kind.


 These are a few thoughts from one who began law school half a century ago. The study of law was a fascinating challenge then, and it remains so today. All of us who are here to participate in this dedication are willing to ensure this is a place that makes a lasting contribution to preserving the Rule of Law. And then this law school will take its place among the fine law schools of the world.





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