Inquiries Into The Puzzle Of Legitimacy In “Law’s Empire”

This article hopes to discuss the attitudes, held by Ronald Dworkin in Law’s Empire, toward the Puzzle of Legitimacy and how he responds, with ”constructive interpretation” and “integrity” as theoretical basis, the classical jurisprudence questions such as “what is law” and “what is legitimate law”. As shown in the content, I wish to take his theory of “the concept of law” as the first step to understand his legitimacy claims, to demonstrate and explain “constructive interpretation” and “integrity” in detailed, and, therefore, to show that the two classical jurisprudence issues has became one in Law’s Empire. And there will be six chapters in this article.In Introduction, I will discuss the connection between the Puzzle of Legitimacy and Dworkin’s theory in brief. Dworkin claims that the Puzzle of Legitimacy of political community in legislative level should be solved by introducing a new political virtue, the integrity, while claiming against utopian theory of social contract tradition. He also claims that such puzzle in adjudicative level should be solved by judges who seek for the best interpretation of legal practice and make his decision under approach of constructive interpretation, while claiming against semantics attitude held by Legal Positivism and some other schools. I shall also present a literature review in this chapter, which included main ideas of both Chinese and foreign scholars about issues listed above. I will claim that the very problem of domestic research is that it has neglected, more or less, the connection between the Puzzle of Legitimacy and Dworkin’s theory.In Chapter 1, my main goal is to discuss “the concept of law”, the classical question of what law is. So there will be three kinds of theory we can not bypass: Natural Law Theory, Legal Positivism, Legal Realism. Dworkin concludes that traditional research has made effects in searching the shared rules of human language, and he takes such effects as “the semantics sting”. This sting has brought two kinds of damage to jurisprudence: firstly, it has limited the possibilities we understand the interaction between moral and law and the flexibility of legal language in a unnecessary way, and therefore caused and enforced the puzzle of “evil law is(not) law”; second, it has twisted the nature of dispute in hard case by failing to reveal theoretical controversy among lawyers. To deal with these two damages, Dworkin suggests we should take a new a approach, constructive interpretation, to understand the concept of law.So Chapter 2 will mainly focus on the concept of “constructive interpretation”. We will notice that, in Dworkin’s community of courtesy, social member holds two kinds of interpretive attitudes toward courtesy. After that, various interpretations, which include scientific interpretation, artistic interpretation, conversational interpretation and constructive interpretation as creative interpretation, will be presented. The constructive interpretation not only pays attention to the original intention of speaker, behavior or creator, but also hopes to make these agents able to learn from the later interpretation. So actually we can see a interaction between intention and object, which mutually form each other and give VII “meaning” to the opposite. This dynamic process is what Dworkin calls “the stage of interpretation”, which include “preinterpretive stage”, interpretive stage and postinterpretive stage. After we respond two doubts against constructive interpretation, we will discuss “Justice as a interpretive concept”, which will be mentioned in later part of this article.I will, then, answer a essential question in chapter 3. That is how research into law’s concept is like according to constructive interpretation. Dworkin claims that the concept of law is a interpretive concept, and its evolution and conception can be clarified throughout three stages of interpretation. In “preinterpretive stage”, the understanding to law’s concept is general consensus of semantics or “a form of life”; in interpretive stage, however, lawyers will disagree about what the “point” of law is thus try their best to interpret their legal practice according to their own intentions and convictions; in postinterpretive stage, law’s conception is the correction, supplement and skeptical thought about the point itself or its practical demands. So, if we assume that there is a “best interpretation” to a certain legal practice, then there will also be rules of “competing interpretation”,which according to Dworkin is “fit” and “ make it the best it can be”, to tell a better interpretation from a worse one.At this point, Dworkin brings up his own concept of law, which takes the point of law as “to justify the withhold, use and retainment of coercion according to political decisions flow from the past”. Three conceptions, conventionalism, pragmatism and “ law as integrity”, to this concept of law can be found to answer questions concern the connection between law and coercion and how past political decisions should be read. As we can see now, by introducing “justification to coercion” into law’s concept, this concept and its conception must both answer “what is law” and “what is legitimate law”. We can also notice that Dworkin has stood VIII against legal positivism’s separate thesis as incorporating what law is and what law ought to be by constructive interpretation. He therefore make his further argument that conventionalism fails because it does not fit the object it wishes to understand and that the aim of pragmatism is to question the law’s justification to coercion. He insists that if we want to make our responds to pragmatism, we must return to Puzzle of Legitimacy and give a better interpretation to legal practice than the former skeptical one.“Law as integrity” wishes to defeat conventionalism and pragmatism by holding its legislative and adjudicative principle. The former principle asks legislators to seek for law that is justified: the law they make must “fit” community’s moral tradition well enough, it should be applied equally to all citizens and officials in a coherent principled manner, to cause them have “associative obligation” of obeying the law. The later principle asks judges must seek for law that is justified in adjudicative process: they must treat legal practice as a whole, use the right intention to understand precedent, and, therefore find the “best interpretation”, which is also the justification to their adjudicative activities, to every case he must decide. We will discuss these two principle as well as the connection between “integrity” and “constructive interpretation” in Chapter 4.In epilogue, I shall summarize arguments and discussion above and make a quick survey to a question that receive lots of attentions in Chinese academia: whether or not Dworkin’s theory can be applied to China’s legal practice. Instead of a “direct” yes or no, I must say the attitude I hold is a “cautious” and “skeptical” one. We have, however, our reason to believe that we can count inquiries above as a good start. Because we do know now is, according to Dworking, that, perhaps, that asking what law is also asks what legitimate law is. And vice versa. That could be the first, but not the last, legacy Dworking has left for our jurisprudence.