an untamable critic and an intransigent adversary of any kind of academic hypocrisy in law

渡边
2014-03-30 看过
Ronald Dworkin is one of the most prominent law philosophers in the common law tradition. Known both in America and Britain for his strong democratic positions, baptized by Duncan Kennedy `orthodox centrism', Dworkin is an acid critic of the paradigms of the contemporaneous jurisprudence.
Teaching law both in London and New York, the author unites the best of the old and the new world's linguistic and philosophical theories. He is well aware of the main `external' influences of law studies, such as the linguistics of Wittgenstein, the utilitarianism of Austin and Bentham, the categorical imperative of Kant, the dialectical approach of Habermas, and many more epistemic precursors of the modern law science. And from the legal benches he invites to debate scholars as Hart, Nozick, Rawls, etc.
This book follows his theoretical controversies initiated in A Matter of Principle and Taking Rights Seriously. Dworkin has the `humble' objective of deconstructing the base of the legal theory, forging a new conception of law itself. Facing the legal positivism creed (as in Kelsen) with the skeptical panorama (legal realism as in Holmes), this author proposes a third way of law interpretation with he calls `law as integrity'.
Integrity conception of law is inspirited in the third motto of the French Revolution: `fraternity'. Law is seen as a product of a `community of principles', as in the roman adage ubi societas ubi jus. For him any interpretation of the law, the common law or the Constitution must be impregnated with the will of integrity, noted as a commitment with the political morals of a given society in a given time. He sees the Constitution as the repository of the three biggest law principles: adjective due process, fairness and justice.
His works (as all things in life) owes applauses and reproves. Its strong points are the impact of his critics, surely shaking the base of the `obvious arguments' of law. Ancient myths as objectiveness and law fidelity of the judge had been collapsed. Notwithstanding the foregoing, what he calls a new proposal - `law as integrity' - is an old hermeneutic method of the jurist from the Romanist systems (as in Brazil, where I come from).
Law interpretation grounded in principles is a well-known method in other juridical, non-utilitarian practices. Long ago a Portuguese scholar named Canotilho constructed a method in which the mining (or creating) of the legal rule to a concrete situation is done in the light of the Constitution and its basic political principles, such as: equality, liberty, morality, good faith, inter alia. This kind of `principiologic' conception perhaps came from a tradition in which law and justice were reputed as equals, and principles were expressions of natural rights given by god or breed in reason.
Nevertheless, I am not trying to underestimate the Herculean (to use a metaphor from his book) work of Professor Dworkin, his bridges between the opposite notions - legal rule and precedents, conventionalism and skepticism, objectivity and subjectivity - are themselves diligent analysis of the law phenomena. I can also say - with no fear of overstating - he is an untamable critic and an intransigent adversary of any kind of academic (or even pragmatic) hypocrisy in law.
Via W. CERCAL from Amazon
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