90 年度私立輔仁大學法律學系研究所博士班考題
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科  目: 法學英文
年  度: 90
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一、The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-man, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination or the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.

二、It is commonly known that the early forms of legal procedure were grounded in vengeance. Modern writers have thought that the Roman law started from the blood feud, and all the authorities agree tbat the German law begun that way. The feud led to the composition, at first optional, then compulsory, by which the feud was bought off. The gradual encroachment of the composition may be traced in the Anglo-Saxon laws, and the feud was pretty well broken up, though not extinguished, by the time of William the Conqueror. The killings and house-burning of an earlier day became the appeals of mayhem and arson.

三、PLEASE TRANSLATE THE FOLLOWING PARAGRAPHS INTO CHINESE:
Article VI of the United States Constitution proclaims it to be“the supreme law of the land.”This signals the primary characteristics of American constitutionalism. It is based on a written document that is the fundamental law of the republic. These two characteristics are reinforcing--the Constitution of 1787 can be law because it is not based on oral tradition or a fragmentary written record. It was established all of a piece at a definite time place.
Early definitions of“constitution”did not focus on this distinctive American idea that a constitution was a single fundamental law. A well-known eighteenth-century British definition was that“By constitution we mean...that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed.”In this definition, a constitution is not understood to be a single document, but a set of documents that relate to the system of government of a given community. Any law a that relates to the general system of governance is part of the constitution.
By contrast, the American idea of a constitution, developed during the revolutionary period, was that of a single law that had a special status as a paramount or fundamental law. The crucial American move was not to reduce the fundamental law to written form--written laws that could be characterized as fundamental already existed in Great Britain. The crucial move was the development of a theory that would justify the supreme status of a constitution over other laws.
American gradually established an original method of constitution making to justify the special status of a constitution during the revolutionary period. The first state constitutions and the Articles of Confederation were written and adopted by the assemblies and legislatures that happened to be sitting at the time. This method of constitution making was criticized on the ground that it did not distinguish the constitution from ordinary legislation because the same method of enactment was used in both cases. The American innovation of the constitutional convention developed to meet this criticism was based on what historian R.R Palmer calls“the people as a constituent power. ”A constitution had to be created in a special convention called for that purpose. The idea was that the entire people, through the mechanism of the convention and subsequent popular ratification, were the creators of the constitution. The constitutional convention was thus linked intimately with the doctrine that the people were the sole sovereign in American government.


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