Hence, commences by identifying the dworkininan challenge; continues by introducing some basic definitions and distinctions between jurisprudence, legal philosophy or philosophy of law and legal theory or theory of law , on the one hand, and its relationship to methodology, on the other hand; later by pointing out the main methodologies available to legal theories, following the distinctions between descriptive and prescriptive or normative, on one side, and, general and particular, on the other; then by revisiting Dworkin's model, which he characterizes as constructive, interpretive and even argumentative , evaluative and integrative; and, concludes by reconsidering in this light the one right answer thesis.
Definitions and Distinctions. Legal Theories and Methodologies.
Remembering Ronald Dworkin LL.B. ’57
Dworkin's Legal Theory and Methodology. For all practical purposes, there will always be a right answer in the seamless web of our law. Ronald Dworkin, 'No Right Answer? This "no right answer" thesis cannot be true by default in law any more than in ethics or aesthetics or morals.
Ronald Dworkin Obituary
Sheldon: What is the best number? By the way, there's only one correct answer.
Sheldon: Wrong! The best number is Leonard: No.go
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Howard: Uh-uh. Raj: We're good. Sheldon: 73 is the 21st prime number. Its mirror, 37, is the 12th, and its mirror, 21, is the product of multiplying, hang on to your hats, 7 and 3. Did I lie? Leonard: We get it! Sheldon: Chuck Norris wishes!
In binary, 73 is a palindrome, , which backwards is , exactly the same. All Chuck Norris backwards gets you is "Sirron Kcuhc". Raj: Just for the record, when you enter 5,, in a calculator, upside-down it spells "boobies". Addressing Ronald Dworkin's work and assessing his legacy are the main aims of this paper. Let me point out in advance that in my opinion he is the greatest legal philosopher and theorist ever and is among the most influential moral and political philosopher of our time. In a few words, he developed an original legal theory with its distinctive methodology, which not only has transcended the Natural Law and Legal Positivism dichotomy, but also has reintegrated law into a branch of political morality and defended as a corollary the one right answer thesis.
As advanced in the "Introduction" to his celebrated Taking Rights Seriously he aimed to "define and defend a liberal theory of law" by being sharply critical of another theory widely thought to be liberal, i.
Ronald Dworkin’s Legal Philosophy
The first part is a "theory about what law is", i. Contrary to the insistence about the independence of both parts, he claims: "A general theory of law must be normative as well as conceptual. Its normative part must treat a variety of topics indicated by the following catalogue. It must have a theory of legislation, of adjudication, and of compliance; these three theories look at the normative questions of law from the standpoint of a lawmaker, a judge, and an ordinary citizen.
The theory of legislation must contain a theory of legitimacy, which describes the circumstances under which a particular person or group is entitled to make law, and a theory of legislative justice, which describes the law they are entitled or obliged to make. The theory of adjudication must also be complex: it must contain a theory of controversy, which sets out standards that judges should use to decide hard cases at law, and a theory of jurisdiction, which explains why and when judges, rather than other groups or institutions, should make the decisions required by the theory of controversy.
The theory of compliance must contrast and discuss two roles. It must contain a theory of deference, which discusses the nature and limits of the citizen's duty to obey the law in different forms of state, and under different circumstances, and a theory of enforcement, which identifies the goals of enforcement and punishment, and describes how official should respond to different categories of crime or fault.
Law & Philosophy: Legacy of Ronald Dworkin—Hamilton, ON
In his own voice: 4. The interdependencies of the various parts of a general theory of law are therefore complex. In the same way, moreover, a general theory of law will have many connections with other departments of philosophy. The normative theory will be embedded in a more general political and moral philosophy which may in turn depend upon philosophical theories about human nature or the objectivity of morality. The conceptual part will draw upon the philosophy of language and therefore upon logic and metaphysics A general theory of law must therefore constantly take up one or another disputed position on problems of philosophy that are not distinctly legal.
In short, Dworkin's powerful critique of law as a model or system of rules and of legal positivism as a form of legal conventionalism, as well as his conception of law as constructive interpretation, as a chain novel, as integrity, as an interpretive concept, and as a branch of political morality, among many other features of his theory, challenged not only the then clearly dominant legal theory but also its methodology, which claims to be general and descriptive or even indirectly evaluative but still morally neutral.
Hence, after identifying Dworkin's challenge, including the existence of persistent and pervasive disagreements within the different legal theories that arguably describe the same phenomenon, 6 but that actually prescribe a different solution to it, I intend: in section II, to introduce some basic definitions and distinctions between jurisprudence, legal philosophy or philosophy of law and legal theory or theory of law , on one side, and its relationship to methodology, on the other; in section III, to point out the main methodologies available to legal theories; in section IV, to revisit Dworkin's model; and, finally, in section V, to conclude by briefly reconsidering the one right answer thesis.
The aim of this section is: first, to introduce some basic definitions and distinctions between "jurisprudence", "legal philosophy" or "philosophy of law", and "legal theory" or "theory of law"; and, second, to point out their relations to the so-called "legal methodology" or "methodology", for short.
Although the terms "jurisprudence", "legal philosophy" or "philosophy of law", and "legal theory" are used more or less interchangeably, I will like to point out that the different labels are helpful in order to figure out the underlying "methodology", including its scientific, philosophical and theoretical presumptions and presuppositions. Since Roman times, following the famous definitions, placed in a passage at the beginning of the Digest of Justinian, by Ulpian " Iurisprudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia " i.
Curiously, John Austin in The Uses of the Study of Jurisprudence , published thirty-one years after The Province of Jurisprudence Determined , on the one hand, cautioned that the word "Jurisprudence itself is not free from ambiguity", since it has been used to denote both "The knowledge of Law as a science" and of "Legislation Whereas the expressions "legal philosophy" or "philosophy of law" by using the word "philosophy" suggest that the distinctive knowledge or at least the method is not scientific per se but philosophical, irrespective of whether there is a close or not relationship between science and philosophy, following the adagio: "philosophy is the mother of all sciences".
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This fact remained unchallenged until H. Ideally, it should be done both by lawyers or jurists with a philosophical background and by philosophers with a legal one. Finally, the terms "legal theory", "theory of law" and even "theory about law" are much more broader by encompassing not only "jurisprudence" and "legal philosophy" or "philosophy of law" but also theorizing from a variety of other perspectives, including "law and economics", "law and politics", "law and literature", "law and society", as well as critical approaches, and so on.
Legal theories and methodologies. Let me start this section by quoting H. Hart's clarification of the aims of his legal theory and its basic methodological presumptions and presuppositions in the "Postscript" to The Concept of Law : My aim in this book was to provide a theory of what law is which is both general and descriptive. It is general in the sense that it is not tied to any particular legal system or legal culture, but seeks to give an explanatory and clarifying account of law as a complex social and political institution with a rule-governed and in that sense 'normative' aspect My account is descriptive in that it is morally neutral and has no justificatory aims: it does not seek to justify or commend on moral or other grounds the forms and structures which appear in my general account of law, though a clear understanding of these is, I think, an important preliminary to any useful moral criticism of law.
At the outset of the clarification, we can identify two basic methodological distinctions as applied to legal theories:. Moreover, nothing precludes a more comprehensive legal theory that includes more than one quadrant and that correspond to four additional possibilities combining: 1 and 2 ; 3 and 4 ; 1 and 3 ; and 2 and 4 ; and, even a much more comprehensive theory that integrates the four quadrants and a further possibility combining: 1 , 2 , 3 , and 4. Traditionally, natural law theories do accept and even embrace the normative dimension to the extent that they appear to be clearly justificatory , whereas positive law theories reject it by claiming to remain purely or solely descriptive , to the extent that they are explanatory.
On the one hand, additionally to Hart, John Austin and Hans Kelsen as well as other positive law theorists, i. For example, Austin famously appealed: "The existence of law is one thing; its merit or demerit is another. Whether it be or not be is one enquiry; whether it be or nor be conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.
The Pure Theory of Law is a theory of positive law. It is a theory of positive law in general, not of a specific legal order. It is a general theory of law, not an interpretation of specific national or international legal norms; but it offers a theory of interpretation.
As a theory, its exclusive purpose is to know and to describe its object. The theory attempts to answer the question what and how the law is, not it ought to be. It is a science of law jurisprudence , not legal politics. On the other hand, certainly Saint Augustine of Hippo and other classical natural law theorists are representative of 2 since they appear to hold that the normative exhausts the content and nature of the law or alternately that the law is reduced to the prescriptive to the extent that " iniustia lex, non est lex ", i.
As already advanced, I am especially interested in the possibility of connecting 1 and 2 , on the one hand, and 3 and 4 , on the other hand, and even the possibility of contrasting 1 and 3 , on one side, and 2 and 4 , on the other. Therefore, a legal theorist can not only be fixated in either describing and explaining or prescribing and justifying, or both; but also be focused in either what is common to all legal systems and cultures or what is specific of a particular legal system and culture, or both.
Actually, following Bentham's distinctions, nothing prevents a legal theorist from exposing first what is specific of a particular legal system or culture 3 and censoring it later 4. Analogously, also following Bentham, nothing precludes a legal theorist from exposing first what is common to all legal systems or cultures 1 and censoring it later 2.
Moreover, some legal positivists have conceded to different extent by recognizing the possibility 27 and even the necessity 28 of connecting both 1 and 2. Finally, some natural law theorists, following Saint Thomas Aquinas dictum " Non lex, sed legis corruptio " 29 seem to be adopting a form of weak natural law theory that connects both 1 and 2.
To conclude this section I will like to advance my claim that Dworkin's model is neither fixated in either describing and explaining or prescribing and justifying, but in both, nor focused in either what is common to all legal systems and cultures or what is specific of a particular legal system and culture, but in both.
Let me clarify that Dworkin integrates 1 , 2 , 3 and 4 into a much more complex legal framework by combining the different possibilities or more precisely by blurring the lines dividing them. Keep in mind that Dworkin not only blurs the lines diving the different possibilities, i. For example, in Law's Empire , Dworkin affirms: on one side, "Jurisprudence is the general part of adjudication, silent prologue to any decision at law"; 31 and, on the other, "Interpretative theories are by their nature addressed to a particular legal culture, generally the culture to which their authors belong".