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The author or concept searched is found in the following 7 entries.
| Disputed term/author/ism | Author |
Entry |
Reference |
|---|---|---|---|
| Legal Positivism | Dworkin | Brocker I 594 Legal Positivism/DworkinVsLegal Positivism/DworkinVsUtilitarianism/Dworkin:[Legal] positivists and utilitarians are united by their opposition to the idea of natural, morally predetermined rights for the state. Positivists reject them because they attribute all normative facts of the law to social facts such as legislation and judicial further training in law. Utilitarians deny them because their last criterion is the social (overall) benefit. Against both perspectives, Dworkin wants to defend a law-based theory to which his book title refers. Brocker I 596 Legal Positivism/DworkinVsPositivism/DworkinVsHart, L. H. A.: Dworkin rejects a system of rules like Hart's: see Rules/Hart, Law/Hart: instead, one must distinguish between law and principles. ((s) Thus Dworkin is influenced by Kant). Rules are either valid or not - however, principles can collide without at least one of them having to be invalid. Principles/Dworkin: have a certain weight and indicate in which direction arguments point. (1) Brocker I 599 DworkinVsPositivism: no description of law is possible that does not include judgmental judgements. For illustration, Dworkin introduces the character of the talented judge Hercules, who knows all the important institutional facts of law and its history, as well as all principles and goals. This allows him to make an accurate assessment of the law in an overall context. Justification/Dworkin: thesis: the justification of law in a matter of best available arguments is substantial in nature. Dworkin therefore sees no problem in the fact that his ideal judge is an isolated hero who apparently interprets the law monologically. VsDworkin: siehe Michelman 1986 (2), 76; Habermas 1994 (3). Jurisdiction/Dworkin: Responsible judges, according to Dworkin, do not succumb to the temptation to seek reasons and points of view outside the law just because so far no article of the constitution, no legal text and no explicit judgment provide authoritative information on a difficult case. Brocker I 600 Legal PositivismVsDworkin: a positivist could argue that Dworkin only wants the American legal system to appear in the most positive light possible, but his approach is unsuitable for giving general assessments of legal systems, such as today's Iranian legal system. Dworkin's approach is unsuitable because it already presupposes that a legal system must embody rational contents such as the idea of individual rights Brocker I 601 against the state. However, this is not a conceptual characteristic of law, but a fragile and in fact not generally recognised achievement of legal history. 1. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, S. 58-64 2. Michelman, Frank I., »The Supreme Court 1985 Term – Foreword. Traces of Self-Government«, in: Harvard Law Review 100/1, 1986, 4-77. 3. Habermas, Jürgen, Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats, Frankfurt/M. 1994, S. 272-276. Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018 |
Dworkin I Ronald Dworkin Taking Rights Seriously Cambridge, MA 1978 Brocker I Manfred Brocker Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018 |
| Life | Dworkin | Gaus I 417 Life/Dworkin/Weinstein: In his recent Sovereign Virtue, Dworkin presses hard his familiar defence of equality of resources, appealing to what he calls the 'challenge model' of ethical value, which he insists is non-consequentialist. For Dworkin, lives go better when they are lived from the inside with 'ethical integrity', meaning when they are not lived mechanically from the outside in accordance with rote habit. Ethically honest lives are skilful performances exhibiting ongoing, critical self-reflection. For such lives, choice is constitutive of living well. DworkinVsUtilitarianism: Welfarism and utilitarianism are immoral since they instrumentalize choice in the name of promoting states of affairs.* Equality: For Dworkin, equality of basic resources 'flows from' the challenge view. If living well means meeting the challenges we assign ourselves, then having sufficient basic resources is ethically imperative. And if it is 'equally important how each person lives', then everyone ought to have equal basic resources. Hence, 'ethical liberals begin with a strong ethical reason for insisting on an egalitarian distribution of resources' (Dworkin, 2000a(1): 279). In other words, equal concern and respect somehow entail resource egalitarianism since equality 'must be measured in resources and opportunities' (2000a(1): 237; also see Dworkin, 1985(2): 192-3). Notwithstanding the circularity of arguing that equal concern and respect entail treating people equally along some separately identified domain, Dworkin never stipulates precisely what he means by equality of resources also 'flow[ing] from' the challenge model.** But if the latter is meant to be a source of justification, then Dworkin's egalitarian liberalism begins to look like Sen's more than Dworkin realizes. >Egalitarianosm/Sen. * Following Sen, Dworkin (2000a(1): ch. l) considers utilitarianism a form of welfarism. For Sen's rejection of utilitarianism though not consequentialism, see Sen (1979)(2). Also see Dworkin (2000a(1): ch. 7) for his criticisms of Sen 's and Cohen's conceptions of equality. ** In Dworkin's recent response to Miller's review of Sovereign Virtue, he says that by equal resources 'flow[ing] from' equal concern and respect, he means 'consistent with'. He also says that his book aims to 'find attractive conceptions of democracy, liberty, community and individual responsibility that are consistent with or flow from' equal resources in order to 'protect' these values 'from subordination' to equality (Dworkin, 2000b(3): 15). Now this meaning of 'flowlingl from' merely requires that distributive justice be compatible with equal concern and respect and not that it is entailed by it. 1. Dworkin, Ronald (2000a) Sovereign Virtue. Cambridge, MA: Harvard University Press. 2. Sen, Amartya (1979) 'Utilitarianism and welfarism'. The Journal of Philosophy, LXXVI: 463-89. 3. Dworkin, Ronald (2000b) 'Equality - an exchange'. Times Literary Supplement (London), I December: 15-16. Weinstein, David 2004. „English Political Theory in the Nineteenth and Twentieth Century“. In: Gaus, Gerald F. & Kukathas, Chandran 2004. Handbook of Political Theory. SAGE Publications |
Dworkin I Ronald Dworkin Taking Rights Seriously Cambridge, MA 1978 Gaus I Gerald F. Gaus Chandran Kukathas Handbook of Political Theory London 2004 |
| Natural State | Dworkin | Brocker I 602 Natural State/Dworkin: the funny thing about choosing a contractual model is that it gives every possible party involved a veto right (1): Each individual must be able to agree to the proposed principles of justice so that they apply to all together. The original state is thus tailored from the outset to the distributive idea of individual rights. It should exclude a purely aggregative concept of justice. ((s) Aggregative: "accumulating": corresponds to the utilitarian view that a maximum overall benefit must result - in contrast: distributive: in relation to individuals and starting from individuals: nothing is "summed up" here. See DworkinVsUtilitarianism, See Law/Dworkin, Civil Rights/Dworkin. 1. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, S. 288. Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018 |
Dworkin I Ronald Dworkin Taking Rights Seriously Cambridge, MA 1978 Brocker I Manfred Brocker Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018 |
| Principles | Dworkin | Brocker I 596 Principles/Dworkin: Rules are either valid or not valid - however, principles can collide without at least one of them having to be invalid. Principles/Dworkin: have a certain weight and indicate in which direction arguments point. (1) Moral content comes into law in the form of principles. (2) Morally meaningful constitutional concepts such as "equality" or "human dignity", however, are general and substantially controversial. We do not have unanimously accepted criteria for their correct or incorrect use. Brocker I 599/600 DworkinVsHart: while Hart insists on the conventional nature of law (see Law/Hart), Dworkin refers to principles. See Legal Positivism/Dworkin. HartVsDworkin: see Law/Hart. Brocker I 601 Principles/Dworkin: For Dworkin there is a close connection between principles and rights: The valid claims of individuals emerge from principles (3). They limit the possibility for the state to violate individual interests in the name of collective objectives. While collective objectives are aggregative, rights are distributive: They protect individuals with regard to fundamental and central interests. Brocker I 595 Utilitarianism/Principles/DworkinVsUtilitarianism/Dworkin: Arguments of principles express the moral claims to validity that play a role in law. From them Brocker I 596 individual rights emerge that outdo collective goals in conflict situations; this thesis points to Dworkin's normative confrontation with utilitarianism. (4) 1. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, S. 58-64 2. Ibid. p. 304 3. Ibid. p. 146 4. Ibid. p. 56f. Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018 |
Dworkin I Ronald Dworkin Taking Rights Seriously Cambridge, MA 1978 Brocker I Manfred Brocker Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018 |
| Rights | Utilitarianism | Gaus I 106 Rights/Utilitarianism/Gaus: Utilitarians, or more broadly, consequentialists, have spent a good deal of effort investigating in what ways personal rights might enter into a utilitarian system. Sen (1990)(1) offers a version of consequentialism that takes rights satisfaction as part of the utility of a state of affairs (cf. Scanlon, 1977(2); Nozick, 1974(3): 166). Mill’s complicated utilitarianism – which seems to integrate rules into the concept of a morality – has often been used as a model for utilitarian rights (Lyons, 1978(4); Frey, 1984(5)) (...). Russell Hardin (1988(6); 1993) has advocated an ‘institutional utilitarianism’ that takes account of knowledge problems in designing utilitarian institutions, which he offers as an alternative to both act and rule utilitarianism. According to Hardin, ‘[w]e need an institutional structure of rights or protections because not everyone is utilitarian or otherwise moral and because there are severe limits to our knowledge of others, whose interests are therefore likely to be best fulfilled in many ways if they have substantial control over the fulfillment.’ Gaus I 107 That, he adds, ‘is how traditional rights should be understood’ (1988(6): 78). >Rights/Consequentialism. 1. Sen, Amartya K. (1990) ‘Rights consequentialism’. In Jonathan Glover, ed., Utilitarianism and its Critics. London: Macmillan, 111–18. 2. Scanlon, Thomas (1977) ‘Rights, goals and fairness’. Erkenntnis, 11 (May): 81–95. 3. Nozick, Robert (1974) Anarchy, State and Utopia. New York: Basic. 4. Lyons, David (1978) ‘Mill’s theory of justice’. In A. I. Goldman and J. Kim, eds, Values and Morals. Dordrecht: Reidel, 1–20. 5. Frey, R. G. (1984) ‘Act-utilitarianism, consequentialism and moral rights’. In R. G. Frey, ed., Utility and Rights. Oxford: Blackwell, 61–95. 6. Hardin, Russell (1988) Morality within the Limits of Reason. Chicago: University of Chicago Press. Gaus, Gerald F. 2004. „The Diversity of Comprehensive Liberalisms.“ In: Gaus, Gerald F. & Kukathas, Chandran 2004. Handbook of Political Theory. SAGE Publications. Brocker I 601 Rights/Utilitarianism: for utilitarianism, maximising the overall well-being is the central objective. Rights, for example in the form of ownership guarantees, can also benefit the overall welfare. It can never be excluded that sacrificing fundamental individual interests of individuals or groups could increase the overall benefit. DworkinVsUtilitarianism: Rights always protect the individual with reference to fundamental and central interests.(1) >Utilitarianism/Dworkin, >Utilitarianism. 1.cf. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018 |
Gaus I Gerald F. Gaus Chandran Kukathas Handbook of Political Theory London 2004 Brocker I Manfred Brocker Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018 |
| Teleology | Dworkin | Brocker I 603 Objectives/Teleology/Jurisprudence/Legislation/Dworkin: Dworkin Thesis: In jurisprudence, objectives may play a role, e.g. affirmative action (quota regulations in the USA for disadvantaged people, especially African Americans): Such measures, which are still controversial today, should be distinguished from substantially discriminatory, such as racist regulations. After all, they are not based on prejudices against white applicants and no preferences for their disadvantage. Nor do they violate any constitutional rights: No one has a valid right to legislation that guarantees access to higher education for the more intelligent or the more successful in examinations, for example (1). Arguments of the objective were therefore always allowed to play a role when it came to the selection criteria for training courses or professional positions. The justification for such measures would not even have to be utilitarian (DworkinVsUtilitarianism). Instead, one could ((s) refer to the ideal of a fairer society that gives everyone a fair chance and slowly but surely makes the importance of skin colour fade away. 1. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, S. 370f Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018 |
Dworkin I Ronald Dworkin Taking Rights Seriously Cambridge, MA 1978 Brocker I Manfred Brocker Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018 |
| Utilitarianism | Dworkin | Brocker I 601 Utilitarianism/Rights/Dworkin: for utilitarianism, maximizing the overall well-being is the central objective. Rights, for example in the form of ownership guarantees, can also benefit the overall welfare. It can never be ruled out that sacrificing fundamental individual interests of individuals or groups could increase the overall benefit. DworkinVsUtilitarianism: Rights always protect the individual with reference to fundamental and central interests. Dworkin does not mean to say that all rights absolutely apply as well as the prohibition of torture. The fundamental point is again a logical one: rights only play their own normative role if they outdo collective goals in cases of conflict. Otherwise, any justification could be directly related to the objective (1). DworkinVsUtilitarianism: central objection: Utilitarianism can also take external preferences "impartially" into account such as discrimination against dark-skinned. (2) Problem: The purely aggregative ((s) summing up) thought of the best possible satisfaction of all possible preferences of all possible people knows no distinction between relevant and irrelevant, acceptable and unacceptable preferences. PerfectionismVsDworkin: there are many kinds of external preferences that should be exempted from Dworkin's criticism: For example, external preferences such as taking sides with members of disadvantaged groups to which you yourself do not belong. (3) Brocker I 605 LadwigVsDworkin: Dworkin, when he wrote the essays gathered in Civil Rights taken seriously, still believed he could draft an ethically completely neutral theory of rights and justice (so also Dworkin 1985 (4)). This may explain his strange assumption that the logical distinction between personal and external preferences is sufficient for criticism of utilitarianism, regardless of their content. DworkinVsDworkin: In later writings (Dworkin 1990b (5); 2011 (6)), however, Dworkin professes an ethical basis of his liberalism. The organizing idea behind his ever-increasing attempts to recognize unity in the world of values is now dignity. 1. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, p. 161f. 2. Ibid. p. 382-385 3. Cf. Coleman, Jules L., »The Rights and Wrongs of Taking Rights Seriously«, in: Faculty Scholarship Series, Paper 4204, 1978, p. 916f. 4. Ronald Dworkin, , A Matter of Principle, Oxford 1985. 5. Ronald Dworkin. »Foundations of Liberal Equality«, in: The Tanner Lectures on Human Values, XI, Salt Lake City 1990 (b), 1-191. 6. Ronald Dworkin, Sovereign Virtue. The Theory and Practice of Equality, Cambridge, Mass./London 2002. Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018 |
Dworkin I Ronald Dworkin Taking Rights Seriously Cambridge, MA 1978 Brocker I Manfred Brocker Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018 |
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