On The Uncertainty Of Principle

Professor Dworkin’s proposition of principle were constructed under such socialbackground of two aspects: on one hand, hard cases in the judicial adjudicationpresented huge challenges to the traditional theory in the United States; the other wasabout how to prevent the individual rights of citizens from the infringement ofgovernment. In the face of hard cases, the core of Professor Dworkin’s views was tobring principles into law, an attempt to make up for loopholes in the law depending onthe functional characteristics of the principle itself.(Under the premise of suchprinciple, Professor Dworkin didn’t recognize there were loopholes in the law, andlaw was rather a tight network). Thus Professor Dworkin criticized discretiontheoretical analysis of legal positivism camp and believed that in the face of a vacancyof the law, the judge only needs to find out the legal claims already existed in theprinciple which itself is a metaphysical form of rights. Because of the powerfulexplaining features of the principle, the right beyond the law could not only pass thereview of democracy, but also avoid the prevalent accusing of judges’ retroactivelegislation in hard cases. Though professor Dworkin associated special allegations oflaw with the content of the principles, he ignored the structural differences betweenthe two. The distinction he made between the two exists outside of the law. In the caseof judging with the principle, the judgment still belongs to the original rule modelwhich the significant structure of principle itself can not separate it out. As to thesecond aspect, Professor Dworkin holds that by separating individual rights frompolicy objectives, the individual rights of citizens are protected from the erosion ofsocial collective target under traditional utilitarian argument. It is obvious that whatProfessor Dworkin has described individual rights and collective goals are still in astate of competition, just like the traditional theory. Dworkin emphasized that thereexists no rationality in the policy of equal treatment in equal conditions due to that thepolicy does not center on equal individuals but rather on the quality of resources andchances. However, equality is not the direct object citizens’ expectation, ProfessorDworkin has ignored what exactly citizens, in the vague sense of equality, are actuallyexpecting when he was distinguishing rights from policies. The thesis will develop by discussing two principles brought out by Professor Dworkin which are the principlesof law and the polity of law, they are not simply a patchwork of two. The attempt toplant political morality into judicial adjudication needs to be aided by the success ofargumentation of bringing the principle to law, as judicial adjudication on the basis ofpolitical morality will be accused in the same way as that on the basis of principle. Asto the drawbacks of Professor Dworkin’s uncertainty proposition of the principle, thisthesis will try to propose an alternative model named as analysing method of strippingthe value from the facts, in which the relationship of hard cases, as well as therelationship between collective rights and civil rights of the individual, isre-examined.