悪の立場から法を見る

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  • 「悪の立場から法を見る」とは、法律と道徳の区別を明確にすることを指す。法律はあるべきものではなく、現実の法律を考えるべきである。一般的な考え方ではなく、悪意のある人の視点で法律を見ることが重要である。
  • オリバー・ウェンデル・ホームズは、法学生に対して法律と道徳を明確に区別するようアドバイスしました。法律は「あるべきもの」ではなく、「現実の法律」を考えるべきです。彼は「法律を知りたいのであれば、それを悪い人間の視点から見なければならない」と主張しました。
  • 「悪の立場から法を見る」という考え方は、法律の物質的な結果にしか興味を持たない悪意のある人間の視点から法律を見るということです。法律の目的や理想にとらわれず、法律の実際の効果や予測可能な結果を重視するべきです。この視点を持つことで、実際の法律の適用や判断をより客観的に行うことができます。
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悪の立場から法を見る

◎から下の和訳お願います。 He advised them (law students) to distinguish clearly between law and morality: consider what the law is, not what it ought to be. Look at the law, he argues, from the position of the "bad man": "If you want to know the law and nothing else," he asserted, "you must look at it as a bad man, ◎who cares only for the material consequences which such knowledge enables him to predict."  * Philosophy of Law: A Very Short Introduction, by Raymond Wacks * He = Oliver Wendell Holmes (1841-1935)

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   法を見る時には、「悪人」の立場から見ろ、と彼(=ホームズ)は言う。すなわち、「もし、君たちがそれ以外のすべてを排除して、その法律だけを知りたいと思うなら、君たちは、このような知識(=法の知識)が彼(=悪人)をして予知せしめることが可能な、物質的結果のみに興味を持っている悪人の立場からそれ(=法)を見なければならない」、と彼(=ホームズ)は言った。     要するに如何にして法を使えば(=抜け穴を見つけて悪用すれば)自分が儲かるか、と言う立場から法を(すなわち道徳観、倫理観、などから離れて)見なければ法律家の観点にはならない、と言っているのでしょう。

yakkamireader
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どうもありがどうございます。非常によくわかりました。

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