On Moral Judgment In Dworkin’s Judicial Theory

The application of moral judgment in judicial adjudication is not an individual case,and in the settlement of difficult cases is universal.At present,the controversy of moral judgment in academia is mainly manifested as the debate on Consequentialism between legal dogmatics and social science jurisprudence.Scholars of legal dogmatics believe that value judgment cannot be avoided in judicial adjudication,and value judgment is the space of moral consideration,but it can only be applied in judgment after the dogmatic transformation of moral content.Scholars of social science jurisprudence support consequentialism,believing that morality can be directly used as the basis of judgment,and the pursuit of legal consequences has the advantage over law in judgment.These two views hotly debate how and to what extent moral judgments are applied in judicial adjudication.But it ignores the core question--why can moral judgment be applied in judicial adjudication? What is the purpose of application? In order to answer this core question,it is necessary to seek the answer from the concept of law rather than just stay in the operational theory.Legal dogmatics and social science jurisprudence,even the positivism behind them,have not convincingly proved this question.The famous legal philosopher Dworkin’s unique understanding of the concept of law may provide a new thinking direction for the above questions.In Dworkin’s theory of general law,law is characterized by practicality and interpretation.Different from the positivism law practice of separating the stage of judgment from the category of law theory,Dworkin thinks that the stage of judgment is an important part of the general law theory.Law theory needs to be tested in practice to form a more perfect law theory to promote better practice.In other words,law has to explain practice.Therefore,law is an interpretive activity.The compulsory act in legal practice needs the interpretation of law,or it can be said that the gist of law is to justify the compulsory act.According to the logic of such a legal concept,moral judgment in judicial adjudication is to provide justification for coercion in legal practice,but because the legitimacy of coercion can only be given by law,the key to whether moral judgment can be applied in judicial adjudication lies in whether morality is the truth value condition of legal proposition.From this point of view,the paper reconstructs and tests the three interpretive legal concepts proposed by Dworkin.The conventionalism legal concept as the basis of legal dogmatics and the pragmatism legal concept as the basis of social science jurisprudence fail to prove the legitimacy of moral judgment in practice.On the one hand,it is because of the disconnection between their practical operation and legal theory,on the other hand,it is because of their position of separating law from morality.Based on legal practice,Dworkin constructs a comprehensive legal concept with the integration of principles through constructive interpretation,and puts forward the innovative conclusion that law is a branch of morality.Morality exists in the legal system and runs through the whole process of the general legal theory.Therefore,in his judgment theory,the moral judgment based on integrity consideration is an important basis for his judgment,and this moral judgment has legal basis.Therefore,the reason why moral judgment can explain coercion in the whole law is that as a legal basis,it can prove the "truth" of legal proposition.It is impossible for judicial judgment to avoid the influence of moral factors completely.How to use moral judgment depends on the understanding of its upper legal theory.Appropriate guidance of legal theory can promote the development of legal practice.