法律必須被信仰, 是一個理念， 我是從法哲學的角度去理解， 不是從語義學semantics角度。 解釋法條是要強調語義的， 但討論法的精神，則以原則為主。所以，在這個意義上 must be or have to be 對我來說沒多少區別。
不過為了你放心，最好還是找找原文。在謝兄提供的網站上找到了伯爾曼寫的此書介紹， 裏麵也提到了這句話。原文是：" Law has to be believed in, or it will not work”. 因為，“ It involves not only man's reason and will, but his emotions, his intuitions and commitments, and his faith.”
按照原文的精神來說，是“必須”因為他所指的是人對法律要有承諾和信仰“commitments, and faith”。不過，我不是中文語義的專家，出來這些年中文也退化了，如果你覺得中文裏的 “應該”足以表達英文中的含義， 翻譯成“應當”也無不可。
這個涉及到憲法所說言論自由的內容。 確實， 自由不是絕對的，聯合國的公民權利和政治權利公約裏， 言論自由可以有限製， 但必須是通過國家的立法列明可以限製哪些具體言論“It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. 。
還有一類言論是屬於禁止類發表的言論：“Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”。
我:
應該是"法律必須要自願信仰"聽著別扭，我在上個帖子中打錯了字。
不知道伯爾曼"法律必須要信仰"的原文是Laws have to believe in 還是Laws must believe in?還是其它的什麽。如果是 have to,在這裏可能翻譯為"法律應該被信仰"比較好.如果是must，則應翻譯為必須。have to 和 must 雖然都翻譯為中文的必須，但英文have to 表示的是客觀的要求，must 表示的是主觀意願，有強製的意味。中文的"必須"不分客觀和主觀，其表示了強製的意願。如果翻譯為"法律應該被信仰"，語義上沒有毛病；如果翻譯為"法律必須要信仰",
就產生了"法律必須(強迫的意願)要自願(非強迫的意願)信仰",這種語義上的毛病。可惜，謝先生一直也沒把原文發上來。因而無法知道是不是國內法律界錯誤地理解了原文。
伯爾曼是研究法律和宗教及曆史的專家，因此他強調宗教對法律的影響，是可以理解的。中國不是有句話，"幹什麽，吆喝什麽"嗎?但從介紹伯耳曼的英文網站，沒人提到他的在中國奉為名言的"法律必須信仰"的觀點，所以我覺得中國法律界可能過渡解讀了伯耳曼的觀點。同時應該指出的他的書名也是interactive of laws and religions。從書名看，應該說的是法律和宗教的互動。
“As it is, you will leave this place, when you do, as a victim of a wrong done not by us, the Laws, but by your fellow-men. But if you leave in that dishonourable way, returning wrong for wrong and evil for evil, breaking your agreements and covenants with us, and injuring those whom you least ought to injure - - yourself, your friends, your country, and us - -then you will have to face our anger in your lifetime, and in that place beyond, when the laws of the other world know that you have tried, so far as you could, to destroy even us their brothers, they will not receive you with a kindly welcome. Do not take Crito-s advice, but follow ours. ”
Harold J. Berman
Robert W. Woodruff Professor of Law, Emory University
To view video interview, click here.
Q: Why come to Emory in 1985, at age 70?
A: In those days Harvard, like many other law schools or any other universities had a policy of making people emeritus at a certain age. And at Harvard you could stay on maximum to the age of 70 and then you could no longer teach. Congress had passed a law, by the way, making this illegal but the universities got an exception for seven years and I was in that seven year period. I was going to be made emeritus and I didn’t want to be emeritus, I wanted to keep teaching and I was open to invitations from elsewhere from my time of retirement at Harvard. I knew Frank Alexander well, he had been my student and he had invited me to Emory to give a lecture once and I’d been down here. So, I got in touch with him and he got in touch with President Laney and they made me an offer of this Woodruff Chair, which was a very good offer. Jim Laney offered me an appointment for a lifetime. In fact, I had a letter from the Dean [of Emory Law School] “so long as your energy, interest and productivity continue,” so when my energy, interest and productivity are not there, I have to retire here from Emory. But, so far we’ve gotten along very well.
Q: Why Law and Religion?
A: Every legal system rests on a belief system and what has been called civil religions. We believe in democracy or freedom with the same passion that in religious circles people believe in God. We believe in America. I love America. Religion is what comes from the heart as well as the mind. It the belief system, what you’re committed to, what you’re willing to fight for, even to die for.
We have deep in our tradition and deep in our constitutional law this concept of belief underlying legal rules. But most of the courses teach legal rules which are then viewed from a political policy orientation. What does the legislature want to accomplish by this rule and not where did this rule come from historically and morally.
Q: Are you the father of Law and Religion?
A: Law and religion was something not talked about in law schools in my time. I remember asking the Dean of Harvard Law School when I was an assistant professor whether we shouldn’t have a course in law and Christianity because I said to him, Christianity had such an important influence on the development of the history of law in the West. And he looked at me and he said (he was a wonderful man but he didn’t like this idea) well, it might be an extra curricular seminar not for credit.
I was not “the father,” I’m the father of four children but I’m not the father of any discipline. I want to tell you, in those days religion was sort of a taboo subject in the law schools. It was just of no interest, indeed today, it’s not a major interest in most law schools. There are a few like Emory which recognizes the importance. In the 1950s I spoke at a conference in Chicago, and my article on law and religion, law and Christianity especially in the West, was published in a series of articles in the Oklahoma Law Review. And then I was asked to give a series of three lectures on law and religion at Boston University, they’re a well known named series of lectures and this became published as a book called the Interaction of Law and Religion which was published in 1974.
Q: Why is this field important to you?
A: My own interest now is above all in the coming together of the different cultures of the world. For the first time in the history of the human race, the entire population of the world is beginning to interact one with another all over into a kind of a merging world society. We have a world economy. We are developing a world society with a world law and this law is an important factor which we should be concerned with. And as we’re concerned with that, we have to look at the different belief systems which underlie these various cultures. Our law and religion program, which already has different theologies represented with Islam, Judaism, will give a whole new direction to legal education. Legal education could help to bring the world together through the world economy, through world sports, through human rights, through all the intellectual property which is becoming more and more universal.
Q: What should law schools be doing differently?
A: Two defects which I attribute to American legal education, the lack of historical perspective and the lack of let’s call it a universal or a comparative perspective, are very detrimental in preparing people for practice. If you go into a law firm today, in the first place you have clients in all countries, it’s amazing the extent to which multinational legal practice and the law firms have to train the law school graduates in multinational legal practice because they don’t get it in law school. You’re a better lawyer if you have a historical perspective. I think all the legal practitioners would agree. It’s just the law schools that don’t – the law professors who each in his own way preponding his own legal perspective which is not historical.
We are undergoing a fundamental, millennial change. We’re changing, I like to say, from the second millennium of the Christian era to the third, and we’re now in a new thousand year period or 100-century period of history – and now the world is a new world. In my lifetime, it all happened. I can’t believe it. When I grew up we looked at England when we studied law. Well, I went pretty far started studying French and German law then I suddenly had to realize there’s also Russia and I had to become a Russian specialist. And then China, I’ve just been invited to China. I mean it’s been an enormous transformation! In my lifetime we had two world wars, we’re all in touch with each other with these computers and these emails and the air travel and so forth. This has all happened in my lifetime. And I think it’s helpful to youth to tell them that. I think they need to hear it because they grew up not knowing anything about the past. In my experience, I’m amazed at the consequences of a lack of a historical perspective.
Q: What role can CSLR play in this?
A: In the coming years I would like the Center to focus more on the interrelationships of the different religious and civil belief systems which now divide the world but at the same time have the prospect, through their similarities of bringing the world together.
Q: Why is this so important?
A: We're told that there once were only 20,000 people in the whole world, in Africa mostly. They’ve spread little by little and traveled over thousands and thousands and thousands of years and they fill the whole earth. And now we’re all in touch with each other everywhere. I think this is providential. We have to find now common spiritual values to hold us together or we may destroy each other with our nuclear weapons.
We’ve got to go back to human nature, the common features, common spiritual values if we’re going to give a legal foundation to this new world economy and this new world society that’s emerging which would some day will become, I hope, a world community. But it’s going to take generations and centuries before this emerging world society develops finally into a world community. And we have to avoid above all the dangers to the destruction of the human race which is a possibility. We’re faced with this incredible choice between self destruction of the human race and the coming together of all these cultures and law can play a particularly vital role. That’s my world law.
伯爾曼著：《法律與宗教》，梁治平譯，中國政法大學出版社2003 年版，代譯序第12頁。
伯爾曼教授逝世
2007年11月15日|Visited 905 times, 3 today 評論 發表評論 【哈佛大學法學院網站消息】Professor Emeritus Harold J. Berman, an expert on comparative, international, and Soviet law as well as legal history and philosophy and the intersection of law and religion, died November 13. He was 89.
Berman recently celebrated his 60th anniversary as a law professor. In 1948 he joined the faculty of Harvard Law School, where he built a reputation as one of the world’s best-known scholars of Soviet law, and held the Story Professorship of Law and later the Ames Professorship of Law. He was a frequent visitor to Russia as a guest scholar and lecturer, even during the height of the McCarthy-era.
He left HLS in 1985 for Emory Law School, where he was the first person to hold the Robert W. Woodruff Professorship of Law—the highest honor Emory can bestow upon a faculty member. After the fall of the Soviet Union in 1989, Berman consulted leading Russian officials on proposed legislation and led seminars for political leaders and academics on the development of legal institutions.
In recent years, Berman worked to redress global societal inequalities and to establish systems of trust, peace, and justice in developing countries. He co-founded and co-chaired the World Law Institute, an organization that sponsors educational programs in global law. The Institute opened the first Academy of World Law at the Central European University in Budapest in 2000 and a comparable program in Moscow in 2001.
Berman was also one of the pioneers of the study of law and religion, writing extensively on the subject and playing an integral role in the development of Emory’s Law and Religion Program, now the Center for the Study of Law and Religion.
A prolific scholar, Berman wrote 25 books and more than 400 scholarly articles, including “Law and Revolution: The Formation of the Western Legal Tradition” and the “The Nature and Functions of Law,” which is in its 6th edition.
Born in 1918 in Hartford, Connecticut, Berman received a bachelor’s degree from Dartmouth College in 1938 and a master’s degree and J.D. from Yale University in 1942 and 1947, respectively. He served as a cryptographer in the U.S. Army in the European Theatre of Operations from 1942 to 1945 and received the Bronze Star Medal for his service.
