Dworkin's Jurisprudence Of "Principle"

Ronald Dworkin is no doubt that he is one of the most influential legal scholars in our times.From 70 's in 20^th century to the new century's first ten year,his charming academic blazes,sharp insights and the unique analyzed model have surpassed the boundary of many subjects such as philosophy,politics and jurisprudence nowadays,which is still shining the optimistic and active vitality.That is really the first miracle in the academic history of current ideologists.Meanwhile,with the increasing numbers of his academic positions,the numbers of the prevalent researches on Dworkin's issues are also overflowing that becomes a prosperous business called "Dworkin's factory",which would be the second miracle in the current academia in the world.However,there is an unobvious but very lethal danger behind the two miracles above that is the ambiguous and self-negative identity of Dworkin's academic positions.The ambiguous positions or the non-strict identified subject and the facts that he denied the entire labeled relative addresses seems illustrate a puzzle which is always boring these short-eyed experts in some certain areas:Dworkin not only faces upon a question regarding the confidences of their validities in a single or several subjects but also confronts and ponders a more significant moment of the biggest crisis which forces him to provide a more comprehensive resolution.In fact,this newborn "American crisis" or the most serious crisis in the whole western civilization has the profound resource which particularly is the result of the connection between the Germanic thoughts and America after the World War?.The influences and the transformations in 50's in last century or we may also assume that the "consumptions" of the European ideologies by Americans caused the totally eruption of the liberalism crisis.This is a crisis of western civilization or definitely it is the crisis of western philosophy(also including philosophy of law).As result that in western philosophy of law,the project of enlightenment becomes the "standard" of the whole modern world's "blueprint" and as if the failure of this "design",the western would could have been on the danger of corruption.Therefore,that is a fatal crisis of "principle".And Dworkin's thirty years academic experience and the writings of "chain novel" about his variety of comments would be considered a construction of "principle" in jurisprudence. So the key point and the radical "chain" in this building should be the examinations and classifications about the matters of "principle",which must be carried into the following two clues that are "history"(time) and "logic"(truth).In the views above,this dissertation is aimed to bring Dworkin's "moral principle" back to its real character by the way of reverse directed analysis through the two clues mentioned above.The specific structures and arrangements regarding to the whole paper are following:Introduction is to discuss the relationship between the crisis of "principle" after World War?and the jurisprudence of Dworkin.By the classifications of Dworkin's works into four epochs in the summary briefly that demonstrates these facts:Dworkin's theory began with the debates between the famous neo-positive legal scholar,H.L.A Hart and developed into the age of construction in 80's,the age of interpretation and practices about the Constitution of U.S.in 90's and the new trial age of "principle" by the attacks of terrorism and the falling of democracy in 1^st ten years in 21^st century.Furthermore,Dworkin's jurisprudence of "principle" would be regarded as a legal theory in the "trinity" model,which is established by the idea of "law as integrity" and the theory of "right answer" those are the labels of the concept of law and the model of judicial discretion and the way of "constructive interpretation" as the transfers and tests model for this unique legal theory.And the author gives the logical outlines about how we could consider the trinity theory as a jurisprudence of "principle" and also points out that the core concept and the most ambiguous one in Dworkin's legal theory is the abstract pre-supposed concept,"Political Morality".Dworkin buried this keyhole into the bottom of his systems and made it as the guarantee of the construction of this trinity jurisprudence.Thus Dworkin's "logic"(the puzzle of truth) is the demonstration guided for the two theories and the special interpreted model,whose main target is to protect the certain condition of "principle";at the same time,Dworkin's "history" (the puzzle of time) is a hard business to amend the defects in the "right answer" theory in front of the problem of coherence interpretation in the spirit of the Constitution of U.S. Among these questions,the grasps of the word of "people" in the Constitution would be extremely important that is classified into two dimensions about the two kinds of "people": the original intention of legislators and the interpretation of interpreters.That is the reason Dworkin fabricated a list of "rights" and the design of "a concept of conceptions".Chapter 1 is to examine-and-argue the puzzle of time about Dworkin's "principle". Dworkin made up a "history" for "principle" indeed and it is a completely new one in the development of American constitutionalism or a coherent one that makes the spirit of the Constitution fitted into those hard cases.All the questions above we call that the puzzle of timeless of "principle" in Dworkin's view of history.For the purposes of the stable system of Dworkin's jurisprudence of "principle" and the "right answer" in the hard case by the path of constructive interpretation under the guidance of "law as integrity"(including the rules and the principles as legal system),he have to mold a "history" with coherent narration.Thence, Dworkin cast all his mind into the summit of the validity in written laws and case laws--the Constitution of U.S.and made an explanation to the design of "one concept of conceptions" based on a semantic analysis.The target in this chapter is to examine that whether the timeless quality of Dworkin's "principle" fits to the coherent narrations for the principles in the Constitution.So the author selects two "historical" fragments that built by Dworkin(the great debates of "principle" by the founders and the rulers) and makes a clear "non-archaeological" summary of the principles in American constitutionalism to reply with the two sorts of misunderstandings on the "people" by Dworkin.At the end of this part,the author exhibits the deadly subversions of "principle" and fundamental mistakes in Dworkin's history of coherent narrations of "principle".Chapter 2 is to examine-and-argue the puzzle of truth about Dworkin's "principle". The main task in this one goes along the direction of the double investments of "principle" and begins a fresh bowl of closing watches.The truth in Dworkin's constructive model or the interpreted truth for the idea of "law as integrity" and the theory of "right answer" is known as the "third way" distinguished with metaphysics of "ancient natural law" and the path of legal positivism by the analyzing the common experiences and rules,which is the radical reason that Dworkin designs "one concept of conceptions".Overall,the condition of truth in Dworkin's "principle" embodied the following four aspects mainly:one is that the original design and basic logic in constructive condition of truth;two is that the resource and demonstration of the interpreted concept as integrity;three is that the judicial practices of judges' moral convictions;four is that the guarantee and essence of the "big right".The author tries to examine Dworkin's "principle" as the fundamental concept by the four levels:the first one is that whether Dworkin's constructive condition of truth could keep with the design and logic alike the objective "standard" in "Political Morality";the second is that whether the "legal principles" would divorce the school of legal positivism by their own analyzed models; the third is that whether the model of best judge as "Heracles" is able to achieve the "right answer" under the judicial discretion of qui-literal interpretation;the fourth is that why Dworkin inducts the "Political Morality" as principle for the ultimately protection and how is the effect on the condition of truth form the discovery of the real essence and aim of "Political Morality" as principle,which would be the key step to argue the problem of "principle".Chapter 3 is to examine-and-argue the theoretical resources of Dworkin's "principle" and make the transformations and comparisons about the concept of liberty. The main task in this part is to classify and analyze the academic origins regarding Dworkin's "principle" that is the relevant ideologies about "freedom".The author believes that the tradition of "principle" is the tradition of the problem of "modernity",which particularly is referenced to the divergences about "liberty" since modern times.Therefore,the individualism liberty and the republicanism liberty as the major lines in this part make the concise reviews and comments on the "principles" of some famous thinkers in these two schools,especially focus on the comparative analysis between the two concept of liberty separately described by Berlin and Dworkin.And the chief standpoints are following:one is that the delimitation between the concept of liberty and the prerequisites of liberty debases the values of liberty itself;two is that the inappropriate association between the possibilities of the "positive liberty" and the consequent of coercion or non-liberty while analyzing another side of "negative liberty".As the result,Dworkin finds that the view of liberty by Berlin is just a balancing choice between the two kinds of liberties that both of them have the tendency to "falling".However,Dworkin's liberty is a demonstration that is inducted from the "equal concerning and respect"(principle) which is also rhetoric speech.Because this "principle" is the right of protection from somebody's interferences actually,this has the meaning of "negative" liberty itself.That is the most absurd misuse of liberty as "principle" for Dworkin. He protects the "negative liberty"(the radical precondition to realize "liberty") by his ambiguous words as some kind of "positive liberty" as "principle" alike exhaustively.Conclusion is to give a summary for the examine-and-argue target through the two major clues of "history" and "logic" on Dworkin's "principle" and point out that enlightenments and fallacies about the construction of Dworkin's jurisprudence of "principle" and the connection with the modern crisis of current jurisprudence.As the two clues "novel chain" and the double reversed inductions over Dworkin's "principle",the author realizes that "liberty" itself is the essence of Dworkin's "Political Morality" as "principle" and the condition of objectivity of Dworkin's jurisprudence of "principle" is trapped into a morass actually.There are not many foresights in the content of ontology of his legal theory corresponding with his rival theory of the traditional objective model in natural law or even worse than the extent of the later one in the tendency of abyss of nihility.At the same point,Dworkin as his rival partners such as Bentham and Berlin made some similar mistakes on the understanding about liberty that is when they could not definite the essence of freedom,they were prone to stuff something into the theory of liberty to show the positions of liberty's alliances;what is worse,Dworkin put the precondition of liberty as the essence of liberty into it and protect it as a redoubtable and pursuing "principle".The construction of Dworkin's jurisprudence of "principle" seems to be a solemn modern "empire of law",which is aimed to save the big crisis(the corruption of liberalism) in western civilization by establishing the "third way" in jurisprudence.And he desires to rebuild the convictions and gets the affirmative and comprehensive objectivity(truth) under the laws by the path of "principle".Unfortunately,this kind of jurisprudence constructed by Dworkin is really a "volcano" which is full of insider contradictions of "history" and "logic". Dworkin's "timeless" could never rescue his "truth" or objectivity and the "principle" would push the liberalism crisis into abyss further and at the same time modern jurisprudence is accelerated into the "falling" by the "principle".