Dworkin's View On Contemporary Legal Pragmatism

What is law?How to interpret the law?Does it need moral judgment in the process of judicial adjudication?These are very complex core problems of jurisprudence.In order to solve the above problems,Dworkin put forward the theory of the law as integrity,and attracted the attention of many scholars at home and abroad with his distinctive stand and systematic argument.As for Dworkin's theory,there are different voices in legal circles,especially the direct conflict between pragmatist Posner and Dworkin in theory.These disputes have a far-reaching impact on contemporary jurisprudence.This paper takes Dworkin's theory of the law as integrity as the main line.By systematically combing the two debates of "Dworkin VS Posner",we hope to show the opposing views of both sides on legal reasoning and moral judgment.The structure of this paper is as follows:In the first chapter of this paper,the author gives a brief exposition of Dworkin's theory of the law as integrity.Dworkin believes that law is an explanatory concept,and the essence of legal theory is how to interpret the law.By putting legal principles into judicial practice and interpreting legal practice with a constructive attitude of interpretation.Dworkin tries to maintain the coherence of the legal system.By investigating Dworkin theory's understanding of legal practice and the solutions to judicial problems,this chapter tries to prove that the theory of law as integrity can provide the best explanation for judicial practice compared with other theories,which also prepares for the later reflection on how to deal with the queries and criticisms of legal pragmatism.In the second chapter,this paper expounds the position and proposition of Posner's legal pragmatism theory.Posner divides legal pragmatism into philosophical pragmatism and daily pragmatism,and emphasizes that what he defends is daily pragmatism.Posner regards the application of law by judges as a practical activity.Judges use many practical rational methods in the process of trial.The two most commonly used practical rational methods are based on authority and analogical reasoning.Legal Pragmatism is "looking forward",which consistency with past judgments is not based on value considerations but on instrumental considerations.Compared with the certainty or stability of the law,the practicality of the law is the first.Judges should think creatively in order to make the judgments most in line with the interests of judicial practice.In the first section of the third chapter,this paper combs the first debate between Dworkin and Posner on the method of legal reasoning.Posner advocates the legal pragmatism reasoning method,which refers to a practical and instrumental approach to dealing with problems.He is interested in the useful,but he does not care what this"real" is.The adjudication theory of the law as integrity refers to the "built-in theory"method of legal reasoning,which requires judges or lawyers to think about their own political and moral problems in a huge theoretical system composed of many complex principles.Posner questioned Dworkin's theory,believing that it did not satisfy the characteristics of legal pragmatism.However,by investigating "look forward" and"experimental",Dworkin refuted that the theory of the law as integrity also satisfies the words used by Posner to describe legal pragmatism,and should not be criticized.In the second section of the third chapter,this paper combs the process of the second debate between Dworkin and Posner on moral theory.The focus of the debate mainly includes two aspects.First,is there a moral debate in the actual judicial trial?Posner believes that there is no moral judgment problem in judicial decisions,because the so-called moral problems will be translated into factual problems.In Dworkin's opinion,no matter what the process of argumentation,the appeal to premises will ultimately come down to moral issues such as the principle of sacred life and the principle of freedom.Secondly,is it necessary to argue morally in judicial practice?In Dworkin's opinion,the judicial decisions of judges can't evade how the legitimate authority of the law can be realized,and the way of the law answers to this question decides how to deal with moral considerations:if the judge agrees with Dworkin's adjudication theory of the law as integrity,he will identify with and conduct moral considerations in the process of specific legal interpretation;if the judge agrees with Posner's legal pragmatism,he will refuse to take moral consideration.But no matter which choice is made,it is a choice of moral nature,so there is no such question as whether moral judgment should be made.The last part is the conclusion of this paper.There are complicated philosophical problems behind legal practice.In the course of investigating Dworkin's theory,we find that Dworkin's theory of the law as integrity can better deal with the criticism of legal pragmatism based on the thinking of legal reasoning method and moral theory,By studying Dworkin's theory of the law as integrity and his controversy with Posner,we hope not only to deepen people's understanding of the law itself,but also to learn the discussion method of legal philosophy.In short,the purpose of this paper is theoretical,or academic,rather than practical,although this study may help to solve some practical problems.