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读《法庭的故事》

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终于读完黄鸣鹤老师的著作《法庭的故事》。当我从新炎手中接过这本书,只见鸣鹤老师手写的赠语,“法律之第一等要义,在于如何守护自由。”那铿锵有力的文字,一下子激起了我这个圈外人的兴趣。


IP属地:江苏1楼2017-01-02 20:01回复
    鸣鹤老师1994年毕业于厦大法律系,在思明法院、翔安法院、海沧法院、厦门中院都工作过,有着全国四级法院的工作履历。尤其在思明法院的十年,自评随遇而安,我心依旧,在领导眼里是个另类、怪才,一个游离于体制的人。在最高人民法院司改办的第二年,怀念那个“面向大海春暖花开”的书房,决定南归。临走时部门酒聚,“当清晨第一缕光线照在山坡上的时候,真正改革的号角会吹响,那时候,亚瑟王的骑士们无论星散何处,都会应召而来。“
    书分为法庭篇和审判篇两部。在上部,鸣鹤老师介绍了很多有趣的历史,比如宗教裁判所、近代中国租界领事裁判权和会审公廨制度,《苏报》案,美国联邦最高法院走出了地下室,田纳西州的小鱼儿蜗牛镖vs泰利库大坝,古时的讼师与刑名师爷,郑国的子产与铸刑书,还有最早的“民间法律人“邓析先生。
    下半部进一步讲到了法袍的到来,发槌的诞生,假发,无讼是传统伦理下虚假的和谐,苏格拉底的审判,沙利文vs《纽约时报》,克莱伦斯丹诺与詹宁斯布莱恩的对决,纽伦堡审判中法官审判法官的一幕,不彻底的远东国际军事法庭审判,1995年南非选择的第三条路:真相与和解委员会,还有不得不提的世纪审判OJ案。
    最直击人心的莫过于纽伦堡审判中简宁法官的态度:
    “他在内心中为自己层层设置的防火墙坍塌了,人性的复苏超越了自我辩解的本能。是的,作为一名资深法官,他洞悉法律的本质:人类自己设置规则,却又受困于规则,但有一种东西是必须永远敬畏的,那就是自己头上灿烂的星空和内心中自然法则的召唤。”
    “我们是有罪的,因为我们知道,那些人原本就是恶棍、小偷和窃国者,但对于罪恶,我们却保持了沉默甚至同流合污。我们手上没有无辜者的血,但这并不能减轻我们的罪孽。在这个法庭上,我判自己有罪,以人性的名义。”
    忏悔者是高贵的,一个能够自我反省的民族也是有前途的。的确,人许多时候是被时代裹挟着走的,无可选择。以简宁为代表的德国法官群体,只不过是第三帝国历史上无数的牺牲品和悲剧人物的有机组成部分。但人世间的法律之所以能够在惨淡的现实中举步维艰却补补趋前,也正是因为,法律不仅仅是一种作为实用工具存在的操作性技术,它是有灵性的,那就是横亘人类数千年历史的人性中善的存在。也就是无知的潘多拉打开蛊惑人类的盒子之后,雅典娜所放置的唤醒良知、勇气,一种拯救人类灵魂的最后希望。
    向死而生的最高境界,想来是如鸣鹤老师一般,人生智慧,菩提无树,明镜非台,心怀梦想却不胡思乱想。


    IP属地:江苏2楼2017-01-02 20:02
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      那个年代的黑白电影,表演和台词总是直击人心,让人泪流满面。
      Ernst Janning: Maybe we didn’t know the details, but if we didn’t know, it was because we didn’t want to know.
      And Ernst Janning, worse than any of them, because he knew what they were, and he went along with them. Ernst Janning, who made his life excrement, because he walked with them.
      I know the pressure that had been brought upon you. You will be criticized greatly. Your decision will not be a popular one. But, if it means anything to you, you have the respect of at least one of the men you convicted.


      IP属地:江苏3楼2017-01-08 14:08
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        Herr Rolfe: The judge does not make the laws. He carries out the laws of his country. The statement “My country, right or wrong” was expressed by a great American patriot. It is no less true for a German patriot. Should Ernst Janning have carried out the laws of his country? Or should he have refused to carry them out and become a traitor? This is the crux of the issue at the bottom of this trial. The defense is as dedicated to finding responsibility as is the prosecution. For it is not only Ernst Janning who is on trial here, it is the German people.
        Dr. Janning, I must tell you something. I admired yousince I was a boy in the university. It was because I thought I might be able to achieve some of the things you have done. That saw me through the war. You have been somebody to look up to for all of us.
        Your honor, it is my duty to defend Ernst Janning, and yet Ernst Janning has said he is guity. There is no doubt he feels his guilt. He made a great error in going along with the Nazi movement, hoping it would be good for his country. But, if he is to be found guilty, there are others who also went along, who also must be found guilty. Ernst Janning said “We succeeded beyond our wildest dreams”. Why did we succeed, your honor? What about the rest of the world? Did it not know the intentions of the Third Reich? Did it not hear the words of Hitler broadcast all over the world? Did it not read his intentions in Mein Kampfl, published in every corner of the world? Where is the responsibility of the Soviet Union, who signed in 1939 the pact with Hitler that enabled him to make war? Are we now to find Russia guilty? Where is theresponsibility of the Vatican, who signed in 1933 the concordat with Hitler, giving him his first tremendous prestige? Are we now to find the Vatican guilty? Where is the responsibility of the world leader Winston Churchill, who said in an open letter to the London Times in 1938, Were England to suffer national disaster, I should pray to God to send a man of the strength of mind and will of an Adolf Hitler. Are we now to find Winston Churchill guilty? Where is the responsibility of those American industrialists who helped Hitler to rebuild his armaments, and profited by that rebuilding? Are we now to find the American industrialists guilty? No, your honor. No. Germany alone is not guilty. The whole world is as responsible for Hitler as Germany. It is an easy thing to condemn one man in the dock. It is easy to speak of the “basic flaw” in the German character that allowed Hitler to rise to power, and at the same time ignore the “basic flaw” of character that made the Russians sign pacts with him, Winston Churchill praise him, American industrialists profit by him. Ernst Janning said he is guilty. If he is, Ernst Janning’s guilt is the world’s guilt. No more and no less.


        IP属地:江苏4楼2017-01-08 14:15
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          Mrs Bertholt: I will never forget the way Ernst Janningcut him down. I don’t think anybody did it to him quite that way. He said “Chancellor, I do not object so much that you are so ill-mannered. I do not object to that so much. I object that you are such a bourgeois. “
          He was part of the revenge the victors always take on the vanquished. It was political murder.
          And after that, I knew what it was to hate. I never left the house. I never left the room. I drank. I hated with every fibre of my being. I hated every American I’ve ever known. But one can’t live with hate. I know that. We have to forget if we are to go on living.


          IP属地:江苏5楼2017-01-08 14:16
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            Colonel: Just for laughs, Matt. What was the war all about? What was it about?


            IP属地:江苏6楼2017-01-08 14:18
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              Judge Haywood: Herr Rolfe, in his skillful defense, has asserted that there are others who must share the ultimate responsibility for what happened here in Germany. There is truth in this. The real complaining party at the bar in this courtroom is civilization. But the tribunal does say that the men in the dock are responsible for their actions. Men who sat in black robes, in judgment on other men. Men who took part in the enactment of laws and decrees, the purpose of which was the extermination of human beings. Men who, in executive positions, actively participated in the enforcement of these laws, illegal even under German law.
              The principle of criminal law in every civilized society has this in common: any person who sways another to commit a murder, any person who furnished the lethal weapon for the purpose of the crime, any person who is an accessory to the crime, is guilty.
              Herr Rolfe further asserts that the defendant Janning was an extraordinary jurist and acted in what he thought was the best interest of his country. There is truth in this also. Janning, to be sure, is a tragic figure. We believe he loathed the evil he did. But compassion for the present torture of his soul must not beget forgetfulness of the torture and the death of millions by the government of which he was part.
              Janning’s record and his fate illuminate the most shattering truth that has emerged from this trial. If he, and all of the other defendants, had been degraded perverts, if all of the leaders of the Third Reich had been sadistic monsters and maniacs, then these events would have no more moral significance than an earthquake, or any other natural catastrophe. But this trial has shown that under a national crisis, ordinary, even able andextraordinary men, can delude themselves into the commission of crimes, so vast and heinous that they beggar the imagination. No one who has sat through the trial can ever forget them. Men sterilized because of political belief. A mockery made of friendship and faith. The murder of children. How easily it can happen.
              There are those in our own country too, who today speak of the protection of country, of survival. A decision must be made in the life of every nation. At the very moment when the grasp of the enemy is at its throat, then it seems that the only way to survive is to use the means of the enemy, to rest survival upon what is expedient, to look the other way. Well, the answer to that is… survival as what? A country is not a rock. It’s not an extension of one’s self. It’s what it stands for. It’s what it stands for when standing for something is the most difficult. Justice, truth, and the value of a single human being.
              Herr Janning, it came to that the first time you sentenced a man to death you knew to be innocent.


              IP属地:江苏7楼2017-01-08 14:25
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                一直都忘不了《费城故事》里,丹泽尔·华盛顿和汤姆·汉克斯之间的一段话。
                What do you love about the law? 你爱法律的什么?
                Every now and then, not often, but occasionally, you get to be a part of justice being done. It is quite a thrill when that happens. 虽然不常有,但偶尔,你可以伸张正义,那感觉棒极了。


                IP属地:江苏8楼2017-01-08 14:58
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