Disagreement And Interpretation

The goal of this dissertation is to explore and evaluate Ronald Dworkin's legal theory. Dworkin has developed his legal theory by argument with legal positivism. Unlike legal positivism which emphasizes certainty and agreement in legal practice, Dworkin has long been concerned with accounting for the disagreement in legal reasoning and argument. He argues the theoretical approach which supposes law to be a matter of fact misunderstands the nature of disagreement about law and cannot provide a reasonable account for argumentative practice. Thus Dworkin gives a substitute account of the nature of legal concept and legal theory.Beginning with the problem of disagreement, the dissertation explores how Dworkin develops a legal theory through argument with legal positivism represented by H. L. A. Hart. The dissertation doesn't deal with every detail of Dworkin's theory, but attempts to card and study the process of his theoretical construction through respectively referring to"theoretical disagreement"thesis and"interpretative concept"thesis as the key ideas of his legal theory. It makes a close relation between Dworkin's thought and western theoretical context, discusses his theses against the background of pertinent controversy, shows various criticisms and challenges to him, and presents his profound insight to the greatest possible extent. The dissertation deals with two fundamental issues in general theory of law: the nature of legal concept and the character of legal theory. Elaborating Dworkin's theory in this way is helpful to showing his special contribution to the present age: his theory has significance for understanding legal change and institutional innovation.In an outline fashion, the content of this dissertation is as follows:In chapter one, I discuss how"theoretical disagreement"is possible. According to Dworkin, the positivist approach of law conceals a special type of disagreement in legal practice. I begin with Elmer's case and show how Dworkin reveals theoretical disagreement by means of case study. Then I explore Hart's original account of the rule of recognition and the open texture of law, conclude that Hart cannot incorporate theoretical disagreement into his legal picture, and affirm the rightness and validity of Dworkin's criticism.Chapter two performs a function of reading guidance. I structure my discussion through setting up a total frame of Dworkin's theory system. On the one hand, I card his numerous and jumbled theory, reveal the different roles of theses in theory system, and elaborate the relation among them. On the other hand, I discern the possible focuses that are susceptible to attack, and show the way in which Dworkin's critics may present various arguments against him. According to the total frame, I abstract two the most fundamental issues: one is the nature of legal concept and the other is the character of legal theory.To discuss the issue of conceptual nature is to explore which type of concept can give a reasoning account of theoretical disagreement. Dworkin differentiates three conceptual types: criterical concept, natural kind concept and interpretative concept. We must select the type of concept which can availably explain the phenomena of apparent agreement and disagreement that we find among those who make or resist legal claims. In chapter three, I analyze criterical concept and natural kind concept, explore respectively the application of them in jurisprudence by illustrating Hart's theory and Brink's theory, and review Dworkin's argument.Chapter four discuss"interpretative concept"which is one of the central theses of Dworkin's legal theory. I begin my elaboration of the concept with a discussion of the contrast between interpretive attitude and conventional attitude. I conclude conventionalism as a rival of interpretative theory has a fatally theoretical defect. I set up two analytic frames in order to show how Dworkin's theory differs from existed legal theories. One frame is used to contrast Dworkin's constructive interpretation and orthodox interpretive modes, and the other is used to contrast his interpretive standpoint and explanative approaches represented by legal positivism.In chapter five, I discuss the issue of nature of legal theory. I examine two familiar differentiations about the nature of legal theory. The first is between judicatory theory and legal theory, and the second is between normative justification and descriptive explanation. I evaluate these differentiations and argue that some exponents and theorists of them misunderstand the nature of legal theory. In fact, both Dworkin and Hart had advanced a practical and normative theory, and they dealt with the same issue. Subsequently, I clarify various misunderstand to Dworkin's argument against Hart. I end this chapter with a discussion of anti-Archimedeamnism. I argue that underlying meaning behind Dworkin's work is a particular understanding of the nature and role of legal and political philosophy, and his account of interpretative concept needs to be understood in the light of his more general opposition to Archimedean philosophy.The final chapter is a discussion and evaluation of Dworkin's practical philosophy."Theoretical disagreement"thesis and"interpretative concept"thesis have great significance in standpoint of practical philosophy, because they suggest that participants in practice have a reflective and critical ability. The ability is imagination. I discuss the characteristic of the special ability, and explore that one of the particular benefits of imagination is that it helps us understand the mechanisms of legal change and build ideal lifestyle with chinese characteristics.