نوع مقاله : مقاله علمی- پژوهشی
نویسنده
استادیار گروه فلسفه، دانشگاه شهید بهشتی
چکیده
تفسیرگرایی حقوقی رونالد دورکین دارای مؤلفه‌هایی است که می‌تواند توأمان نقطۀ قوت نظریۀ او و نقطۀ ضعف آن باشد. اصلی‌ترینِ این مؤلفه‌ها مفهوم «صعود نظری» در نظام فلسفی اوست. او با پیش کشیدن این مفهوم بنیان بسیاری از نظریه‌های پراگماتیستی را، به ویژه در فلسفۀ اخلاق و فلسفۀ حقوق، نشانه می‌رود. از سوی دیگر، آمیختگیِ این مفهوم با فرض‌های متافیزیکی گرانبار، خودِ این مفهوم را در برابر انتقادهای پراگماتیستی آسیب‌پذیر می‌کند. در این جستار، دو هدف عمده را دنبال می‌کنم: 1) خواهم کوشید با زدودن این فرض‌های متافیزیکی، نظریۀ او را با رویّه‌های عملی قضات و حقوق‌دانانْ همخوان‌تر و بدین طریق کارایی آن را بیشتر کنم؛ 2) نشان دهم که تفسیرگرایی او با تکیه بر مفهوم «صعود نظری»، به شرط کاستن از تضمنات متافیزیکی، نقش نظریه را در رویّۀ حقوقی بهتر از نظریه‌های پراگماتیستی نشان می‌دهد. به تعبیری، نشان خواهم داد که تعدیلی از هر دو سو، یعنی از سوی تفسیرگرایی حقوقی و پراگماتیسم حقوقی، ما را به سمت نظریۀ حقوقی جامع‌تری سوق خواهد داد که هم حق «بُعد نظری» در رویّه‌های حقوقی حقوق‌دانان و قضات ادا شود و هم حق استلزامات جزئی‌نگرِ رویّه‌های حقوقی.
تازه های تحقیق
Ronald Dworkin’s Legal interpretivism is one of the main schools in the contemporary philosophy of law, initiating in-depth discussions with other legal schools, including legal pragmatism. In this essay, I shall begin by describing the outlines of this theory under three titles named (1) “four steps in working out a legal theory”, (2) “assumption of Judge Hercules” and (3) “law as integrity”. Then some merits of this theory will be examined, such as (1) proving conclusively the indispensable theoretical ascent in resolving legal dilemmas, (2) having a clear and systematic method, and (3) the ability to have a reflective, critical attitude to legal conventions, a feature that is missing in contextual theories such as legal positivism and legal pragmatism. Then, in the light of pragmatic criticisms, I shall turn to its demerits which mainly are, in my view, (1) metaphysically overloaded assumptions, (2) uselessness and dispensability of the assumption of Judge Hercules, and (3) unnecessary overemphasis on strict integrity in the process of interpreting the law. Through these assessments, I would show that if some superfluous assumptions are removed from Dworkin’s theory, it might become more consistent with ordinary practices of judges and lawyers on the one hand, and more immune to pragmatist criticisms on the other hand.
Main elements of Dworkin’s legal interpretivism
Dworkin regards law as an interpretive concept that always leads us to a reflective, argumentative process in order to find out what this or that statute or constitutional clause would require in a legal dilemma. This means that a lawyer or a judge is, in fact, an interpreter who cannot ascertain what the law demands on an occasion unless he reflectively discovers the intention underlying the positive rules of law. According to Dworkin, the main guidelines in this interpretive procedure consist of the established legal texts (constitution, statutes, precedent, and, in general, legal convention) on the one hand and principles embedded in these legal practices on the other hand. Dworkin invents an imaginary superhuman judge, called Hercules, gifted with extra natural capacities of knowledge and rational argumentation. There is always a single right answer in every legal dilemma or, as he called it, in every hard case in which Judge Hercules is able to find it out. In order to ascertain that, he has to uncover the intentions or purposes underlying constitutional clauses or statutes by asking himself what scheme of principles has been settled by people or their law-givers. In so doing, he cannot help but suppose that the system of laws has been passed by a community of a coherent, integrated personality, called “community personified”. Thus, having in mind the principle of “law as integrity”, Judge Hercules could go up the ladder of “theoretical ascent” from low-level, particular hard cases of legal dilemmas to high-level, inclusive moral and political theories, a process finally results in uncovering the single right answer.
Though ordinary lawyers and judges are not Hercules and, therefore, not equipped with his supernatural endowments, the procedure of reflective argumentation in both cases is one and the same; in other words, lawyers and judges would not resolve legal dilemmas unless they go up this theoretical ladder and find out the single right answer by examining original intentions of law-givers with the aid of moral, political theories behind their system of legislations and embedded in their positive legal practices.
Merits of Dworkin’s interpretivism
In the second chapter, I shall point out some advantages of Dworkin’s legal theory, compared to its pragmatist rivals. First of all, interpretivism could show the indispensability of theoretical ascent in every serious legal activity. While many pragmatist legal philosophers, such as Richard Posner and Cass Sunstein, underestimate the contribution of inclusive moral and political theories to legal practices, Dworkin argues that so-called pragmatic instructions, such as means-ends calculation or mere analogy, would not be useful in legal reasoning without having a theory to which means-ends calculation or analogy usefully attached.
Secondly, utilizing some ideas of John Rawls in A Theory of Justice, I shall argue that Dworkin’s interpretivism, with its constructive assumptions of “law as integrity” and “theoretical ascent”, satisfies the two standards of “clarity and system” of which a successful theory should not fall short.
Finally, interpretivism does better justice to the reflective nature of legal reasoning, compared to contextualist legal theories, including pragmatism, which reduce law and its related institutions to unexamined practices and conventions, thereby depriving ordinary lawyers and judges of any critical attitude towards legal practices.
Disadvantages of Dworkin’s interpretivism
In the third chapter, I shall focus on demerits of Dworkin’s interpretivism and try to strengthen it by removing some of its, in my view, superfluous assumptions. First of all, I would argue that it is a metaphysically overloaded assumption that there is a single right answer in every legal dilemma. Dworkin’s interpretivism will work as well without this problematic presupposition. Using a Wittgensteinian metaphor, it might be said that this assumption is a wheel that though might be turned, nothing else moves with it; So it plays no part in the mechanism of interpretive legal reasoning. The second assumption Dworkin’s legal theory would better get rid of is Judge Hercules. I would argue that Judge Hercules’ supernatural capacities inevitably makes him an inappropriate pattern for ordinary lawyers and judges.
Finally, I shall argue that since legal practices are inevitably subject to historical contingencies, the integrity of a community which is to be considered as a unified, integrated person (community personified) in the process of theoretical ascent, should not be taken strictly as such. In my view, in order to take account of discontinuity of communal identity in the history of society and the disruptions between its generations, it is important to take the integrity of law as a fluid, flexible one. However, the metaphysical assumptions of “the existence of a single right answer and Judge Hercules” appears to be inconsistent with this requirement.
Conclusion
On the one hand, Dworkin’s convincing arguments for theorization in the everyday practices, in my view, clearly expose the significant theoretical void in legal pragmatism. On the other hand, from a pragmatic point of view, it could be shown that some metaphysical assumptions in Dworkin's interpretivism might be usefully removed without causing any harm to the total system of interpretivism. Thus, having to get rid of these superfluous presuppositions, Dworkin’s interpretivism might be more immune to pragmatist criticisms and more practicable for ordinary legal practitioners at the same time.
References
- Davidson, Donald (2001) “A Coherence Theory of Truth and Knowledge”, in Subjective, Intersubjective, Objective, Oxford: Oxford University Press, pp. 137-156.
- Dworkin, Ronald (1977) Taking Rights Seriously, London: Duckworth.
- Dworkin, Ronald (1983a) “To Each His Own”, The New York Review of Books, April 14, 1983 Issue, available at http://www.nybooks.com/articles/1983/04/14/to-each-his-own/Dworkin, Ronald (1983b) “Reply to Michael Walzer”, The New York Review of Books, July 21, 1983 Issue, available at http://www.nybooks.com/articles/1983/07/21/spheres-of-justice-an-exchange/
- Dworkin, Ronald (1986) Law's Empire, Cambridge, MA: Harvard University Press.
- Dworkin, Ronald (2006) Justice in Robes, Cambridge, MA: Harvard University Press.
- James, William (1948) Essays in Pragmatism, ed. by Alburey Castell, New York: Hafner Press.
- Posner, Richard (1995) Overcoming Law, Cambridge: Harvard University Press.
- Posner, Richard (2003) Law, Pragmatism, and Democracy, Cambridge: Harvard University Press.
- Putnam, Hilary (1987) The Many Faces of Realism. LaSalle, IL: Open Court.
- Rawls, John (1993) Political Liberalism, New York: Colombia University Press.
- Rawls, John (1999) A Theory of Justice, revised edition, Cambridge, AM: Harvard University Press.
- Rorty, Richard (1979) Philosophy and the Mirror of Nature, Princeton: Princeton University Press.
- Rorty, Richard (1982) Consequences of Pragmatism, Minneapolis: University of Minnesota Press.
- Rorty, Richard (1998) Truth and Progress, Cambridge: Cambridge University Press.
- Rorty, Richard (1999) Philosophy and Social Hope, London: Penguin.
- Rorty, Richard (2000) “Response to Putnam”, in Rorty and His Critics, edited by Robert Brandom, Oxford and Cambridge, Mass.: Blackwell, pp. 87-90.
- Sunstein, Cass (1996) Legal Reasoning and Political Conflict, Oxford University Press, New York & Oxford
- Walzer, Michael (1983a) Spheres of Justice, New York: Basic Books.
- Walzer, Michael (1983b) “‘Spheres of Justice’: An Exchange”, The New York Review of Books, July 21, 1983 Issue, available at http://www.nybooks.com/articles/1983/07/21/spheres-of-justice-an-exchange/
- Wittgenstein, Ludwig (1953) Philosophical Investigations, translated by G.E.M. Anscombe and R. Rhees, Oxford: Blackwell.
کلیدواژه‌ها
عنوان مقاله [English]
Legal Interpretivism versus Legal Pragmatism: an Assessment
نویسنده [English]
- Morteza Nouri
Assistant professor, Department of Philosophy, Shahid Beheshti University
چکیده [English]
Ronald Dworkin’s interpretivism contains significant elements which might be both regarded as advantages and disadvantages of this legal theory. Among them, the main one is the concept of “theoretical ascent”. He deliberately targets many pragmatist theories, especially in moral and legal philosophy, with the aid of this concept. On the other hand, this concept, overloaded with metaphysical presuppositions, is highly susceptible to well-known pragmatistic criticisms. So, in this essay, I shall follow two main objectives: 1) I would try to remove superfluous, metaphysical assumptions from his legal theory and adjust it finely to everyday practices of judges and lawyers, thereby increasing its practicality; 2) I would try to show that his interpretivism, grounded on the concept of “theoretical ascent”, could better explain the significant contribution of “theorization” to legal practices, compared to pragmatistic explanations, provided it reduces its notorious metaphysical connotations. In other words, I shall argue that an adjustment on both sides in this conflict say, at the parts of legal interpretivism and legal pragmatism, would lead us to a more inclusive legal theory which does better justice to both “theoretical and practical aspects” of legal practices in everyday life.
کلیدواژه‌ها [English]
- legal interpretivism
- legal pragmatism
- the law as integrity
- theoretical ascent
- legal theory
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