Dworkin's Theory Research Articles

The STF'S Decision in Hc Judgment No. 154.248/DF: Disagreements in Law and Constructive Interpretation From Dworkin's Perspective

Objective: The objective of this study is to investigate the STF's decision in the judgment of HC no. 154.248/DF, with the aim of understanding disagreements in law and the application of constructive interpretation from the perspective of Ronald Dworkin. Theoretical Framework: In this topic, the main concepts and theories that underpin the research are presented. Ronald Dworkin's theories of interpretation of law, the idea of ​​integrity in law and the theory of interpretative disagreements stand out, providing a solid basis for understanding the context of the investigation. Method: The methodology adopted for this research comprises a qualitative approach, using documentary analysis of court decisions and a bibliographic review of Dworkin's works. Data collection was carried out through the analysis of votes from STF ministers and specialized legal literature. Results and Discussion: The results obtained revealed a diversity of interpretations among the STF ministers in the judgment of HC no. 154.248/DF, highlighting the different understandings of constitutional principles and fundamental rights. In the discussion section, these results are contextualized in light of Dworkin's theoretical framework, highlighting the implications of the theory of constructive interpretation and the challenges faced by courts in maintaining the integrity of the law. Possible discrepancies and limitations of the study are also considered in this section. Research Implications: The practical and theoretical implications of this research are discussed, providing insights into how the results can be applied or influence practices in the field of constitutional law and jurisprudence. These implications may encompass the training of jurists, judicial practice and legal theory. Originality/Value: This study contributes to the literature by approaching the STF decision from the perspective of Ronald Dworkin's theory, offering an innovative analysis of constructive interpretation and disagreements in law. The relevance and value of this research are evidenced by its ability to deepen understanding of the practical application of Dworkin's theories in complex judicial decisions.

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

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.

An approach between the institutional capacity of the Courts of Audit and the regimen of precedents and summulas from the Civil Procedure Code

The institutional capacity of the courts of audit as makers and applicants of precedents and summulas (restatement of case law) is investigated to answer the following: is it possible a mutually beneficial approach to the decision standards regimen from the Civil Procedure Code-CPC, as well as a productive dialogue with the Law of Introduction to the Brazilian Legal Statutes (Lei de Introdução às normas do Direito Brasileiro-LINDB)?. The objective of the work is to analyze, from the abstract and concrete institutional capacities of the audit courts, the aptitude for the formation and application of decision-making standards. To do so, Ronald Dworkin's interpretive theory was chosen, especially because it is believed that precedents are intertwined in a discursive plot, when every single interpreter commits to analyzing past decisions, in a reflexive way, to decide in the present and, at the same time, anticipating the directions for the future of the decision, which is made in the here and now. The hypothesis is that the audit courts have the potential ability to form and apply precedents and summulas, arising from the exercise of their constitutional powers, but that it is also necessary to develop a concrete capacity to form and apply controlling decision patterns. In this way, it allows for a better understanding of the relationship between the decisions of the audit courts and the judicial ones. It is a theoretical work, of legal analysis of the subject, using the deductive method, starting from a general analysis to reach the institutional capacity of audit courts for the formation and application of decision-making standards.

Law as a branch of morality: detour or peak of Ronald Dworkin's theory?

Neste artigo, analiso a tese do Direito como um ramo da Moral de Ronald Dworkin. Discuto se ela representa um desvio com relação aos pressupostos antes assumidos pelo autor, ou se seria o ápice de sua teoria, dando plena consequência a seus pressupostos e integrando os resultados de maneira harmoniosa. Para tanto, é importante entender por que Dworkin chegou aÌ€ visão "unissistemática" de A raposa e o porco-espinho. Depois, é preciso analisar bem essa visão e avaliar se ela não compromete a autonomia do Direito. Por fim, resta saber qual a nova agenda de pesquisa que ela colocaria para o debate jurídico contemporâneo.

The right to the Sabbath from the argument of Dworkin's principles: jurisprudential study in the Colombian Constitutional Court


 
 
 This article makes a study of the jurisprudence of the Constitutional Court of Colombia on the right to the Sabbath of the members of the Seventh-day Adventist Church. The methodology adopted consists of the dynamic analysis of precedents proposed by Diego López Medina in El derecho de the judges (2009), in which he presents some tools to work with jurisprudence in a structured way. Here these tools are reconstructed and, on that basis, the problem of the members of the Seventh-day Adventist Church of enjoying or not enjoying the Sabbath from the argument of the principles of Dworkin is studied. The article is divided into three sections: the first contains the reconstruction of the stated methodology. The second contains the study of the precedent on the Sabbath, the result of which is the jurisprudential line and the presentation of the graph that contains it. In the last section, a dialogue is established between the established jurisprudential balance and Dworkin's theory of principles contained in Rights seriously (2012a).
 
 

Hercules as a feminist judge? Revisiting Rackley's ‘Little Mermaid’ in the wake of the feminist judgments projects

AbstractIn her early work, the feminist legal scholar Erika Rackley uses the image of Ronald Dworkin's superjudge Hercules to shed light on the experience of the woman judge and on law and adjudication in the liberal legal order. She sees Hercules as representing the judge ‘who inhabits our legal imagination’, and as conjuring up problematic notions of unimpeachable wisdom, detached neutrality and super-humanism. This paper assesses Rackley's argument in light of the feminist judgments scholarship that has emerged in the meantime. It contests Rackley's claim that Hercules, or what he represents, is a patriarchal influence in the real world of law, and argues that he might instead be understood to accommodate, or even to encourage, principled evolutions in law along the lines of those suggested by the feminist judgments literature. This assessment is done mainly through the lens of Stokes v CBS Clonmel, a judgment of the Irish Supreme Court concerning indirect discrimination that was later the subject of a feminist judgment in the Northern/Irish Feminst Judgments volume. The broader aim of this assessment is to interrogate the insights and implications of feminist judgments scholarship.The paper is in four parts. Part 1 places feminist approaches to adjudication in broader theoretical context. Part 2 considers Dworkin's theory of adjudication and Rackley's critique. Part 3 sets out the approach taken by both the real-world and feminist judges in the Stokes case. Part 4 critiques Rackley's take on Hercules in light of the approach adopted in those judgments and draws on preceding analysis to interrogate the insights and implications of feminist judgments scholarship.

THE RELEVANCE OF RONALD DWORKIN'S THEORY FOR CREATING AGRARIAN JUSTICE IN INDONESIA

<em>Law enforcement related to Agraria is unjustly marked by the discrepancy of natural resources ownership and many agrarian conflicts. This is normative research, use conceptual approach and secondary data. Then, data collected is analyzed qualitatively. Based on research, moral reading stated by Dworkin is very relevant to be implemented to create agrarian justice in Indonesia because of its endorse rule to be interpreted according to the justice principle. Dworkin's theory of justice is very relevant in creating justice in Indonesia because of : (1) emphasize the importance of public participation and individual understanding in constructing justice; (2) acknowledgment of public diversity; and (3) giving attention to disadvantaged people.</em>

Why Legal Positivism (Again)?

This was a keynote address at the annual meeting of the Australasian Society of Legal Philosophy at the University of Sydney in 2013. (It is a much expanded version of some brief remarks presented in 2010.) Why is legal positivism the dominant view among legal philosophers? address begins with a somewhat lengthy methodological preamble, offering reasons to resist the extravagant metaphysical inflation of the purported theoretical virtues of positivism in some recent jurisprudential writing by Dickson and Shapiro, among others. Artifacts do not have essential attributes, not even functional ones. (Leslie Green's partial resistance to my metaphysical deflation in his recent The Morality in Law is shown to depend on some confusions about the status of the claim that law is an artifact.) I then suggest that legal positivism has three theoretical virtues counting in its favor. First, if we take seriously the benchmark for theoretical adequacy that Hart gave for his theory - namely, that it capture what the ordinary educated person familiar with a modern municipal legal system understands by the concept of law - that positivism does the best job of accounting for this ordinary understanding. (Particular attention is drawn to Raz's original arguments for legal positivism of this form, as opposed to his perhaps better-known, if more controversial, argument from the nature of authority.) Second, the positivist account of law is the one deployed fruitfully in all the empirical social sciences. Third, the positivist theory does not involve incredible or controversial metaphysical assumptions. last two theoretical considerations are acknowledged to presuppose naturalism, but I suggest that doing so is unavoidable. Are there any competitors to the positivist theory so understood? most sophisticated version of natural law theory, that of John Finnis, has conceded the main points in dispute to the legal positivists, and fails to articulate a successful argument against descriptive jurisprudence. A plausible theoretical reconstruction of the jurisprudence of American Legal Realism shows it to presuppose the positivist view. Scandinavian Legal Realism is shown to reject Hart's benchmark of theoretical adequacy (the first point, above), and so to be undertaking a wholly different project, one in no competition with Hart's. Dworkin's theory, by contrast, fails along the the three dimensions of theoretical adequacy along which legal positivism succeeds. paper concludes that the appeal of Dworkin's theory to constitutional lawyers in the Anglophone world and elsewhere is due entirely to the (correct) perception that his theory makes moral considerations relevant to the resolution of momentous constitutional questions; unfortunately, nothing in the positivist theories of Hart and Raz denies the relevance of moral considerations to such questions. I end with some sociological reflections on jurisprudence that may partly explain the continued resistance to legal positivism, contrasting my own sociological speculations with Dworkin's final and embarrassing ad hominem arguments against legal positivism.

QUE CRÍTICAS DA TEORIA DO DIREITO COMO INTEGRIDADE DE DWORKIN PODE FAZER CONTRA A TESE DO LIVRE CONVENCIMENTO MOTIVADO DO MAGISTRADO?

O presente texto pretende demonstrar a insustentabilidade de uma visão tradicional dentro da Teoria Geral do Processo capaz de defender a permanência de mero e insuficiente dever de motivação das decisões judiciais. Sendo assim, fazendo uso de uma metodologia voltada para a revisão de literatura a respeito, a partir de uma reconstrução histórico-crítica, apresenta-se a problemática leitura da tese do livre convencimento motivado, a partir de uma relação de adesão a uma teoria processual não democrática. Assim, é observado que a função da motivação é presa a uma leitura hermenêutica inconsciente quanto à ocorrência do giro linguístico e apegada a um paradigma positivista jurídico. Em seguida, usando os recursos teóricos fornecidos pela Teoria do Direito como Integridade de Ronald Dworkin, demonstra-se como o paradigma processual democrático pode ser compreendido adequadamente, superando, simultaneamente, uma Teoria do Direito Positivista, bem como uma teoria do processo não democrática. A consequência direta é a superação da ideia de motivação e sua substituição para a compreensão do que é um provimento jurisdicional fundamentado.

A adoção unilateral é irrevogável? Uma análise crítica do acórdão proferido no REsp 1.545.959/SC: discricionariedade judicial e os limites da legalidade

O artigo se propõe a analisar criticamente o acórdão proferido pelo Superior Tribunal de Justiça no REsp 1.545.959/SC, julgado em 6 de junho de 2017, em que a referida Corte desconstituiu sentença transitada em julgado que deferiu adoção unilateral do enteado ao padrasto, a despeito da vedação expressa contida no art. 39, § 1o, do Estatuto da Criança e do Adolescente. A partir da reconstrução lógica dos fundamentos que conduziram à conclusão do acórdão, são problematizados: o caráter de regra da norma contida no art. 43 da Lei n. 8.069/90, a partir da distinção entre princípios e regras na teoria de Ronald Dworkin; o ativismo judicial à brasileira e a utilização indiscriminada dos princípios pelo intérprete como panaceia para decidir conforme a própria consciência. O objetivo é verificar se os fundamentos da decisão resistem a um exame crítico a partir de critérios de integridade e coerência.

PRINCIPLE, PRACTICE, AND PRECEDENT: VINDICATING JUSTICE, ACCORDING TO LAW

AbstractLegal judgment, I argue, entails moral judgment; legal obligations, correctly identified, are genuine moral obligations. Dworkin's legal theory is instructive, but problematic: his account of integrity fails to provide a convincing reconciliation of practice and principle. We can, however, defend a superior account in which the moral ideals that we invoke to justify legal practice – affirming its legitimacy under certain conditions – retain their force throughout our judgments about its specific demands in particular cases. Common law reasoning exemplifies that approach, reflecting the interdependence of practice and principle. It is an internal, interpretative inquiry, drawing on the moral resources of our own tradition, treated as an influential guide to the requirements of justice. The law is constituted, accordingly, neither by its socially authoritative sources, whatever their merits, nor by the moraleffectsof our legal practice. It is rather the scheme of justice we construct in our continuing efforts to bring our practice closer to the ideals that inspire and redeem it.

A DISCRICIONARIEDADE JUDICIAL E AS CONDIÇÕES DE VERDADE DAS PROPOSIÇÕES JURÍDICAS À LUZ DO DEBATE HART E DWORKIN

Em um contexto de relativização da cisão entre criação e aplicação do direito, o trabalho tem por objetivo analisar, sob o olhar analítico e conceitual da filosofia, o problema do grau de liberdade interpretativa, a (in) determinabilidade do direito, a (in) existência de resposta correta e a necessidade do uso da discricionariedade judicial, a partir do estudo das condições de verdade das proposições jurídicas e das discussões sobre a possibilidade de juízos interpretativos objetivamente verdadeiros, à luz do realismo e antirrealismo semânticos. A pesquisa bibliográfica de abordagem qualitativa centra-se na análise do positivismo hartiano e do interpretativismo de Ronald Dworkin. Ao contrário da teoria de Dworkin, segundo a qual mesmo nos casos difíceis as proposições jurídicas apresentam um valor de verdade, o pensamento hartiano considera que a existência de casos difíceis conduz à indeterminação do direito e à ideia de que certas proposições carecem do valor de verdade.

Dworkin: A New Link in the Chain

This book brings together nineteen of the articles published by Professor Dworkin over the last eight years, mostly in the New York Review of Books, but also in learned journals and collections. Three articles, none of them of major importance, have not been published before: Can a Liberal State Support Art? (pp. 221-36),1 On Interpretation and Objectivity (pp. 167-80),2 and Civil Disobedience and Nuclear Protest (pp. 10418).3 Several pieces published during the last few years are not included, of which the most important is an article on equality.4 The book lacks thematic unity, but it will be welcome as not only does it bring together many of Dworkin's influential articles, but it makes available to a wider audience several articles not widely known before. Of these, two are of particular importance. Principle, Policy, Procedure (pp. 72-103) applies Dworkin's general theory of adjudication, with its emphasis on individual rights, to issues of evidence and procedure whose sensitivity to the public costs of the judicial process seems to undermine Dworkin's apparent view that in adjudication, rights should take precedence over issues of public policy, such as administrative expedience. The second, Do We Have a Right to Pornography? (pp. 335-72) is not

Dworkin's Perfectionism

In this essay, we shall interpret Dworkin's constitutional theory in light of three varieties of perfectionism: (1) the idea that government should undertake a formative project of inculcating civic virtues and encouraging responsibility in the exercise of rights; (2) the idea that we should interpret the American Constitution so as to make it the best it can be; and (3) the idea that we should defend a Constitution-perfecting theory that would secure not only procedural liberties essential for democratic self-government but also substantive liberties essential for personal self-government. We shall identify three gaps left by Dworkin's work and sketch how we have sought to fill those gaps in the spirit of his work through developing a mild form of constitutional perfectionism.

Can American Courts Respect Religious Reasoning?

In 1977, legal philosopher Ronald Dworkin published Taking Rights Seriously, and it quickly received wide notice. At the time recently appointed H.L.A. Hart's successor at Oxford, Dworkin combined jurisprudential analysis with pointed commentary on United States Supreme Court cases, the latter developed principally in essays in the New York Review of Books. Defining law through its aspiration to justice and defining justice in terms of rights, Dworkin argued that judges were entitled to use moral philosophy both to interpret legal rules through the principles they instantiate and to fill in gaps in the law by leveraging general legal concepts into more precise conceptions. Often paired with his contemporary John Rawls's Theory of Justice, Dworkin's theory that judges should rework the law when possible to insure “equal concern and respect” was seen to elaborate the practical meaning of Rawls's first principle of justice (equal rights to basic liberties) as well as to boost the activism of judges, whom he encouraged to model “Hercules.”

Decisões judiciais em matéria de saúde: as conexões entre o Direito e a Moral

A partir da transferência, cada vez mais intensa, da atribuição de decidir questões importantes na área da saúde, para o Judiciário, justifica-se o interesse em investigar, identificar e compreender os principais conflitos morais experimentados por magistrados no cotidiano de sua jurisdição de saúde, buscando compreender as razões desses conflitos e o modo pelo qual têm sido deliberadas questões de saúde em face dos entes públicos. Uma vez que nestas situações, os juízes, de uma forma geral, dispõem de certa margem de liberdade na escolha dos padrões - políticas, princípios (jurídicos ou morais) ou regras – que devem utilizar, em alguns casos, para chegar a uma decisão que considerem adequada, avulta-se a questão do chamado poder discricionário do juiz. Mas até onde vai a discricionariedade dos juízes? Será que podem decidir livremente, de acordo com as regras jurídicas, princípios jurídicos, política, ou mesmo de acordo com suas convicções morais, a seu único e exclusivo talante? Este estudo busca trazer respostas para estas questões a partir da teoria de Ronald Dworkin, no contexto de suas divergências com Herbert L. A. Hart e Richard Posner, mais especificamente no que diz respeito às conexões entre a moral e o direito. Ao final, desenvolvemos uma técnica a fim de identificar conflitos morais experimentados pelos magistrados que aplicamos em casos concretos de demandas de saúde.

Criminal procedure in Serbia: Between the reform and the value system breakdown

This paper discusses the correlation between the current reform of Serbian criminal procedure and the transformation of the fundamental principles of European-continental criminal procedure. In that context, the authors first provide a diagnosis of current state of affairs in domestic criminal procedure, which has been subjected to the process of legal acculturation embodied in spreading the Anglo-American criminal procedure into the European-Continental criminal procedure. In the second section, with reference to the 'Serbianisation' of Dworkin's Heracles, an imaginary perfect judge through whom Dworkin's famous theory of law as integrity is presented, the authors provide insights into the state of domestic criminal justice system. The most important conclusions are presented in the third part of the paper. Firstly, the authors point out that the process of transplanting elements of the Anglo-American criminal procedure into the European-Continental proceedings gives birth to Serbian Heracles, which embodies the spirit of time when the old system of values is destroyed and a new one is created. In the authors' opinion, the process of 'revaluation of values' is a dominant tendency in the criminal procedure law of the Western legal circle (which the Anglo-American and mixed continental procedures fall into), and it is a consequence of wider social trends. Changes in the criteria for comparing values first occurred in the accusatory proceedings, primarily because the standpoints and the metanarrative permeated with notions of pluralism and relativism were born and first applied in the Anglo-American procedure. However, considering the current legal acculturation, the last dams of revaluation of values have been demolished in the continental procedures as well. As nothing is either right or wrong anymore, an environment has been created in which the question of truth cannot be posed any longer. In the authors' opinion, the alternative is found in the process of simulating the pursuit of justice. The primary function of procedures imitating the judicial process is to serve and uphold the stability of the political system. Thus, postmodern procedures are an illusion created in order to deceive the public. An important role in that process is played by due process rules on fair proceedings which, as the authors believe, are the primary means of simulating the process of seeking justice in criminal proceedings.

Reasons of Law: Dworkin on the Legal Decision

Ronald Dworkin once identified the basic question of jurisprudence as: ‘What, in general, is a good reason for a decision by a court of law?’ I argue that, over the course of his career, Dworkin gave an essentially sound answer to this question. In fact, he gave a correct answer to a broader question: ‘What is a good reason for a legal decision, generally?’ For judges, officials of executive and administrative agencies, lawyers, non-governmental organizations, and ordinary subjects acting in the variety of legal contexts, Dworkin identified the proper basis for a legal decision, and its implications for the form of well-conducted legal reasoning. Dworkin's stance on the above questions can be characterised by two theses. I defend his view by substantiating each. The result is agnostic about the viability of other aspects of Dworkin's legal theory, as it focuses on the grounds of proper legal decision-making. Whatever the fate of his other philosophical views, Dworkin's jurisprudence includes a clear-headed, though morally challenging, understanding of the proper basis for decisions of law.

Equality of resources, risk, and the ideal market

Ronald Dworkin's theory of equality of resources makes extensive use of markets. I show that all these markets rely on one specific neoclassical conception of the ideal market in full equilibrium, as analyzed by Debreu. This market must be understood as operating under circumstances of certainty, and this is incompatible with several components of Dworkin's account. In particular, it does not allow one to hold people responsible for their option luck, and it implies a high social safety net rather than insurance schemes for addressing brute luck. I conclude by outlining an interpretation of equality of resources that takes the ideal market seriously.

Law's Province in the Domain of Value

Judges have always held a prominent place in Ronald Dworkin's interpretive theory of law. Since its early incarnation as an immanent critique of legal positivism, interpretivism has taken as its st...