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The author or concept searched is found in the following 5 entries.
| Disputed term/author/ism | Author |
Entry |
Reference |
|---|---|---|---|
| Interpretation | Dworkin | Bocker I 598 Interpretation/Right/Laws/DworkinVsHart/Dworkin: Dworkin's interpretation model excludes strong judicial discretion. Rather, according to him, judges must presume that exactly one answer is the right one, even in difficult cases. This reply shall indicate the rights which a party to a dispute actually possesses. ((s) Rights are not "granted" by the judge - see also the distinction "detective"/"projectivistic"/Wright). DworkinVsHart: extra-legal standards must not play a role in this. Solution/Dworkin: instead of rules ((s) in the case of Hart's second-level rules) principles must be applied. >Principles/Dworkin. DworkinVsHart: for Dworkin, to be and to shall play with necessity in the interpretation of the law, because according to Dworkin the law is continuously interpretative, i.e. has to get along without a conventionalist anchor point. 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 |
| Law | Dworkin | Rawls I 349 Laws/rules/Dworkin, R./Rawls: whether our rights and duties as citizens or also rules of the game are connected with moral duties is a question that can be determined independently of the content of these rules. This also applies if the standards used by judges and others to interpret the law remind of or are identical with the principles of law and justice. For example, in a well-ordered society, the two principles of justice (See Principles/Rawls) may be applied by courts to interpret the parts of the Constitution that deal with freedom of thought and consciousness as well as the protection of equal rights (See Ronald Dworkin, "The Model of Rules", University of Chicago Law Review, vol. 35 (1967) esp. pp. 21-29.) Rawls: then there is still a difference between what law dictates and what justice demands. For example, the rule of keeping a promise determined by conventions is not to be confused with the principle of fiduciary duty (which is a special case of the principle of fairness). I 350 This principle is only hypothetical. All we need is for it to be followed. We assume that a fair practice exists. Brocker I 595 Law/DworkinVsHart, H. L. A./Dworkin: Hart Thesis: Law and morals form two independent systems of norms. A principle of moral only becomes part of positive law through an ultimately conventional rule of cognition. See Law/Hart: Division of legal rules: a) Rules of action, b) Rules for the creation of rules. (1) Dworkin: Thesis: Any attempt at conceptual definition and description of law inevitably involves us in normative questions of justification. DworkinVsHart/DworkinVsPositivism/DworkinVsLegalPositivism: law should not be reconstructed as a system of rules. In particular, it cannot be understood as a system of primary and secondary rules (rules via rules). ((s) Background: H. L. A. Hart was influenced by rules of the late Wittgenstein when setting up a system. >Rules/Hart, Law/Hart. Jurisprudence/Dworkin: When judges decide on rights and duties, they consider not only rules but also objectives and principles. While objectives such as the promotion of social welfare belong primarily to the level of legislation, principles are particularly relevant at the level of finding justice.(2) Brocker I 596 Law/DworkinVsHart: 1. law cannot be distinguished from other norms by means of a conventional rule of cognition. There is no such rule. The dispute among lawyers does not even stop at the foundations and limits of law. 2. Law is not logically independent of morality: moral content comes into law in the form of principles.(3) Brocker I 598 3. Dworkin criticizes the idea of strong judicial discretion as it follows from Hart's rule model. 1. Hart, H. L. A., Der Begriff des Rechts. Mit einem Postskriptum von 1994 und einem Nachwort von Christoph Möllers, Berlin 2011. 2. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, p. 56f. 3. Ibid. p. 304 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 Rawl I J. Rawls A Theory of Justice: Original Edition Oxford 2005 Brocker I Manfred Brocker Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018 |
| Law | Hart | Brocker I 594 Law/Hart: Hart's new definition of the legal concept (Hart 2011) (1) was influenced by Wittgenstein's later philosophy of language: Hart shares with all other positivists the belief that law is a conventional standard order: it is not the content but the institutional 'family tree' of a norm that shows whether it belongs to law. Problem: the right to normative validity should also be covered. Solution/Hart: Construction from the participant's perspective: a two-tier system of rules. Rules/Hart: give addressees justifying reasons for action. Their actual validity depends on whether a sufficient number regard them as internally binding. a) Rules that limit our freedom of action Brocker I 595 b) Rules that deal with rules of the first kind: how can legal rules be created, amended and invalidated? Example "rule of recognition": Whether a rule belongs to the law depends on it. It allows us to distinguish valid from invalid legal norms. However, it itself has no normative basis. It stands and falls with the recognition of the community. It follows that law and morality form two independent systems of norms. A principle of moral only becomes part of positive law through an ultimately conventional rule of recognition. For DworkinVsHart seeLaw/Dworkin. Brocker I 598 Hart's rule model follows an idea of strong judicial discretion. For Hart, the law always has an "open structure". (2) In "hard cases", according to Hart, judges must even use extra-judicial measures to justify their judgments. DworkinVsHart: that makes judges substitute legislators. They are thus competing with Parliament. Democratic-theoretical reasons speak against the idea of strong judicial discretion. Solution/Dworkin: interpretation model of law. >Interpretation/Dworkin. Brocker I 600 HartVsDworkin: Hart can show that his rule term is actually wider than that of Dworkin, thus there is also room for Dworkin's so-called objectives and principles - which Dworkin later admits. (3) Moral/Hart: Hart allows the possibility that moral arguments decide what applies legally. However, they cannot play this internal legal role simply because of its possible substantive correctness. They can only play it as far as the conventional rule of recognition provides for it. (4) The law can include moral content, but does not have to. DworkinVsHart: for Dworkin, to be and to shall play with necessity in the interpretation of the law, because according to Dworkin the law is continuously interpretative, i.e. has to get along without a conventionalist anchor point. 1. Hart, H. L. A., Der Begriff des Rechts. Mit einem Postskriptum von 1994 und einem Nachwort von Christoph Möllers, Berlin 2011. 2. Ebenda S. 150-152. 3. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, S. 111-119. 4. Coleman, Jules L., »The Rights and Wrongs of Taking Rights Seriously«, in: Faculty Scholarship Series, Paper 4204, 1978, S. 897. Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018 |
Brocker I Manfred Brocker Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018 |
| 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 |
| 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 |
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