法典缄默时的法官司法——《法律帝国》德沃金权利法学思想之完善

当代法学家德沃金为了完善自己的权利体系，继前两部著作之后，创造出又一巨著《法律帝国》，在该书中，德氏认为，当法典缄默时，法官没有越出法律去判案，法官以整体性为原则，建设性阐释为方法，通过相关立法和判例的分析，从中推导出正确适用于疑难案件的原则。     

Equality of resources and the demands of authenticity

One of the most distinctive features of Ronald Dworkin’s egalitarian theory is its commitment to holding individuals responsible for the costs to others of their ambitions. This commitment has received much criticism. Drawing on Dworkin’s latest statement of his position in Justice for Hedgehogs (2011), we suggest that it seems to be in tension with another crucial element of Dworkin’s own theory, namely, its endorsement of the importance of people leading authentic lives – lives that reflect their own values. We examine this tension between responsibility and authenticity, and some strategies Dworkin does and could deploy to defuse it, which we think are unsuccessful. We then propose a solution for reconciling the demands of responsibility and authenticity, which is, so we claim, friendly to Dworkin’s fundamental commitments but which leads to a revisionist interpretation of the demands of equality of resources.     

Liberal equality: political not erinaceous

Ronald Dworkin’s Justice for Hedgehogs defends liberal political morality on the basis of a rich account of dignity as constitutive of living well. This article raises the Rawlsian concern that making political morality dependent on ethics threatens citizens’ political autonomy. Thereafter, it addresses whether the abandonment of (erinaceous) ethical foundations signals the demise of Dworkin’s liberalism and explores the possibility of laundering his conception so as to facilitate a marriage between the political philosophies of Rawls and Dworkin. The article finishes by rebutting some objections Dworkin raises against Rawls’s account of public reason.     

Understanding Dworkin through art: object-based learning and law

This article explores object-based learning (OBL), a burgeoning pedagogical approach in higher education. Object-based learning engages students’ pre-existing visual and conceptual literacy as a gateway to work through difficult threshold concepts. The article advocates this exciting learning model in law by articulating what it is, explaining how it can be applied through the example of teaching Dworkin in a jurisprudence module. The article introduces OBL approaches, details how it is relevant to jurisprudential teaching as well as its scope for application across legal teaching. It explains how such an approach moves away from transmission modes of teaching into transformational ones, accessing students’ abstract web of comprehension in conjunction with text-based learning to produce more imaginative and creative critical thinking skills.     

德沃金少数人权利法理比较分析

每个人都有获得平等关照和平等尊重的权利,这是一种根本的平等理念。功利主义、自由至上主义和社群主义对此都有论述,也有各自的合理因素,但都无法为少数人权利提供有效辩护。比较而言,德沃金的自由平等理论是一种有效的为少数人权利辩护的平等理论。     

Equality,risk and responsibility: Dworkin on the insurance market

The concept of risk occupies centre-stage in debates about individual and social responsibilities and, within a broadly neo-liberal regime, the paradigmatic form of risk management is insurance. Nevertheless analysis of these recent shifts in welfare politics appears curiously disconnected from dominant trends of normative political theorizing. The rise of ‘insurance as government’ and ‘risk management as responsibility and opportunity’ has not obviously been addressed even by prominent liberal political theorists. Similarly the analysts of neo-liberalism have devoted little attention to tracing these concepts through the literature on political theory. This article seeks to remedy this disconnection, by showing how Ronald Dworkin – perhaps the foremost liberal theorist writing today – offers us an account of equality which foregrounds the apparatus of insurance, and represents the management of risk within the welfare system as both an opportunity and a responsibility. Furthermore, his account inherits many of the ambiguities and weaknesses of neo-liberal theory and redeploys them within the political theory of equality.     

How generous should egalitarians be?

Abstract

Lippert-Rasmussen has proposed a new version of luck egalitarianism: equality of concern. In this article, I argue that equality of concern is more generous than its two luck egalitarian rivals. That is, against equality of opportunity for welfare, it is more generous in that it recognises shortfalls in the satisfaction of one’s impersonal concerns as potentially inegalitarian. Against equality of resources, it is more generous in that it advocates more extensive compensation. I suggest that equality of concern’s generosity regarding impersonal concerns is justified but its generosity regarding compensation is not. Equality of resources, however, faces other problems, and so I argue that a hybrid of equality of concern and equality of resources would be the more attractive luck egalitarian view.     

德沃金个人主义权利观的论述逻辑及其反思

德沃金的权利理论是一种个人主义权利观,"诠释"与"人性尊严"是其中的两个关键词。"诠释"确定了权利的表现形式,权利表现为一种个体性的诠释实践;"人性尊严"则赋予权利以价值,权利的价值在于它承认与尊重每一个人的内在价值与责任。《认真对待权利》、《法律帝国》与《刺猬正义》这三部著作代表了德沃金权利理论的三个发展阶段,权利的个人主义观念在此过程中得以形成与完善。该权利观虽然极为精致且具有说服力,但并非理解权利的唯一可能路径。     

法律判断客观性探询——从德沃金的阐释理论到罗纳根的理解哲学

罗纳根是专门研究人类理解学问的哲学大师,他在一般意义上回答了判断的客观性问题,德沃金则在法律领域论证了判断是有客观性的,相似的是他们都将判断客观性问题转化为判断结论的选择问题。罗纳根通过认知结构的经验、顿悟与判断三重机制,指出排除激情与偏见就能获得正确结论;德沃金认为只能借助偏见才能获得理解,并通过整体性原则与＂二步限缩＂的评估获得最佳答案。因为最佳结论是唯一的,正确判断是既定的,所以这两种路径都能通达客观目的。     

司法确定性的寻求——析哈贝马斯的“程序确定性”理论

司法判决究竟有没有确定性？疑难案件的判决结论究竟具不具有＂唯一正解＂？司法判决正确性的理论基础何在？法律现实主义、法律实证主义、法律诠释学等理论对此都提出了自己的看法。德沃金在吸收这些理论的基础上提出了＂权利论＂的＂结果确定性＂理论。哈贝马斯则在批判德沃金的基础上提出了＂程序确定性＂理论,为回答法理学上的这一系列经典问题提供了一份程序主义的独特答卷。