The Sources Of Normativity Of Legal Decision-Making In Hard Cases

①参见沈映涵:《新分析法学中的方法论问题研究——由哈特的描述性法理学引发的争论》,吉林大学2009年博士学位论文,第18页。 brodened and deepened our understanding of the normativity and its source. This is very important for us to understand the problem in reality and theory. The entire exposition of this paper will go as follows:Chapter One makes clear my core thesis and its actual as well as theoretical importance, and then explains and limits my key concepts and approach. The logical arrangements of this paper come out after analysis of relevant studies.In Chapter Two, I first elucidate the orthdox view of Langdell, the representative of the late 19th century American legal formalism, by an outline of its features, appeals and defects. Then I summarize the general criticism of legal formalism by legal realists, and take Unger as an example to concretize those critical reasons from CLS. Finally, I think that neither the legal formlism nor the legal realism is proper for the problems of legal objectivity and normativity, because they represent two extreme positions of internal and external approaches to legal study.Hartian arguments of his internal approach to the source of the normativity of law take up Chapter Three. First come Hartian resolution of the extreme positions of legal formalism and legal realism through the open texture of law and his new comprehension of hard cases, and his middle way to rescue the objectivity of law. Then come his attempts by way of the internal aspect of rules and the rule of recognition. I point out that Hart thinks of the rule of recognition as a kind of social fact, which, as a conventionalistic interpretation, aims at a resolution of the source of normativity of law. In the last analysis I emphasize Hart's later works, that is, taking law as a authoritative reason.In Chapter Four I examine Dworkin's approach of interpretation. With the aid of theory about legal principles and the seamless web, Dworkin criticizes Hartian open texture of law for its violation of the principle of power separation between legislature and judicature in Anglo-American law, and thereby poses a way out of the existing dilemma around the objectivity of law. Based on a discussion of Dworkin's understanding of hard cases and his Right Answer thesis, I claim that he gives a preliminary exposition of how the issue of law's normativity has come to be. Dworkin, as it were, completes his demonstration of the source of law's normativity through arguments about legitimacy and integrity, that the ultimate source of law's normativity comes from the political morality behind the liberal community.Chapter Five mainly considers Posner's pragmatic approach. Posner clarifies the nature and position of law's objectivity through a trichotomy of objectivity. In the early years, he appealled to the Wealth Maximization as his issue consciousness of the source of law's normativity, though later he dropped such an appeal without abandoning the issue consciousness. Then I discuss his Posner's theoretical characteristics and their bearings upon legal theory and philosophical theory after his turn to pragmatism, and his introduction of social science resources after showing the futility of legal and moral theories in solving hard cases. Posner takes a pragmatic attitude to increasingly improve the source of law's normativity, in order to transcend established traditional modes of argument in law and moral theory.In Chapter Six, I account for the mutual responses between Hart, Dworkin and Posner, and their relative merits. Setting as reference the value pluralism in contemporary liberal society, I further insist that their divergences in the source of law's normativity result from their attitudes toward the value pluralism, the capacity for practical reason and the conception of good life. Comparatively, Hart's and Posner's positions correspond more closely to current adjudicative practices in Anglo-American law.Chapter Seven concludes the whole paper, with answers to questions posed in introduction. I think, in the background of value pluralism, the combination of the internal point of view and the external source more makes for a normative decision, which benefits both the pluralism of moral values and the general social prosperity, viz., promotes human happiness and maintains human dignity.