Research On Ronald Dworkin’s Animadvert To The Judicial Activism Under Pragmatic Approach

The Legal Theory of Dworkin and the Judicial Activism under the pragmatism are both based on the liberal tradition,but they hold different opinions.Dworkin proposed “the only correct solution” theory of justice,which account that the law was constituted by rules,principlesand policy etc.It is necessary to seek principles,instead of lacking rules,to preventthe behavior of judgemade law.While the Judicial Activism under the pragmatism has the purpose of the pursuit of actual social effects,which advocates considering various factors comprehensively,going beyond laws,regulations and principle of precedent,taking a variety of flexible ways to hear the case.Dworkin criticized the legal pragmatism profoundly though the debate with Posner when the theory of legal principle and the theory of legal interpretation were in construction.It is e mbodied in the following four aspects.First comes to the legal certainty.Dworkin believes th at Posner does not summarize ethical problems into laws,all judges’ answers to legal question s contain moral judgments,and the judge could find “the only correct solution” on the basis of moral consensus.Meanwhile,the judge,acting as the “internal participant”,makes constructi ve interpretation of laws,which contributes to the systematic whole of law.The second is abo ut the discretion.Dworkin believes that the judges have more discretion,which will cause po wer abuse and the damage to the legal consistency.The third is about the principle of precede nt.Breaking through the principle of precedent is a negation of the existing legal history and t radition,which will enable the court to make a ruling based on the “rootless” justice.Judges s hould prefer to look for “implicit law” in precedents rather than create laws.Finally,in terms of policy,principle is superior to policy during the trial in thejudicial process.Otherwise,it wi ll cause infringement of individual rights if the policy is the basis of referee.Both Dworkin’s reconstruction of legal certainty and the deconstruction of legal certainty of Judicial Activism under the pragmatism hold the same understanding on that law should have certainty.Dworkin insists that the basis of legal certainty is human’s unified cognition.However,the development of philosophy from the pre-modern to post-modern indicates that the unified cognition of humans no longer exists.In such a case,“the only correct solution” merely works in theory.The loss of legal certainty does not mean that the only correct solution of real justice does not exist.Habermas proposed that law exists between facts and norms,and judges should base on a certain pre-understanding,selecting the correct specification through a specific logical form,to know the facts,so that we can seek the only correct solution.Meantime,in my opinion,through “uncompleted unified theoretical protocol”,judges can solve the problem,on which principles are unable to reach unified cognition.Judges can reach unified agreement in specific cases in order to maintain legal certainty,and thus to make the only right judgment.