Haberma's criticism of Dworkin's Judge Hercules and the open society of constitution intrepreters

Abstract

This article, through deductive research methodology, intends to demonstrate Ronald Dworkin's constructivist theory, especially his criticisms of positivism and the judicial discretion proposed by Herbert Hart. For this, an incursion into Dworkin's ideas is made, especially those related to the application of principles to justify decisions in difficult cases. The mythological figure of Judge Hercules will also be analyzed, that is, the theoretical personification of the task that must be performed by a judge by holistically analyzing the legal system and the principles, abstract or concrete, inserted in it. In the end, the criticisms made to Hercules and the possible response to them based on the open society thesis of the interpreters of the constitution will be demonstrated.