Dworkin's Built-in Judicial Theory Research

The judge should judge according to law,and what is the meaning of "law" that the judge depends on is a preliminary question,which is the juristic position of the judge.Therefore,the judge must embed a juristic position of "what is law" when judging according to law--this is the basic implication of " theory-embedded ".But the theory embedded is a normative question: on this platform,there is the competition of conventionalism,pragmatism,Legal Dogmatics and the law as integrity.The theme to be defended is that law is an interpretive concept,which needs to be interpreted in accordance with dworkin's integrity approach to law by constructive interpretive tools.In dworkin's view,what the law is,whether the law is good or not,and whether the law is to be obeyed or not are three questions in one.The law must appeal to morality,must reflect the basic value that people request to the good ethical life,therefore the law must be good,the law must be obeyed.And the judge use the law appeal to moral in the judicial judgment still chould find the only correct solution.In the view of legal positivism,what the law is,whether the law is good or not,and whether the law should be obeyed are three independent questions.The proposition of social fact and thelaw as integrity think that law has objectivity,but positivism thinks that law is descriptive,law is obtained from empirical facts,we don't need to evaluate law,law is objectivity because the existence and content of law come from social facts.Law comes from empirical facts.When there is a hard case that the law cannot solve,it is left to the discretion of the judge.Dworkin believes the law is constructive,because there is objective truth,when there is a hard case the law can not solve,the judge should attempt to interpret law makers did not express the meaning of(such as legal principle,legal principle here is not the principle of the law),which is in accordance with the referee,so the judge does not have discretion.Integral law is another virtue independent of fairness,justice,and fair process.The law as integrity requires that every member of the community should be treated equally by the law,that the whole legal system be consistent and consistent from top to bottom,and that the same principle be applied to every rule of law.The views of legal pragmatism and Legal Dogmatics on what law is are influenced by the proposition of social fact of legal positivism,which holds that law is derived from empirical facts.The theme of the defense centers on the analysis and refutation of four views that refute the theory-embedded theory,including: the social fact proposition of legal positivism;Legal dogmatics;Legal pragmatism;Value pluralism.The binary opposition between the social fact proposition and the theory-embedded judicial theory is whether the existence and content of law contain moral factors.After entering the evaluation system,many scholars believe that legaldogmatics can solve everything,while the theories in the field of legal philosophy are increasingly deviated from reality,and legal philosophy is no longer used in judicial judgment.The binary opposition between value pluralism and the theory – embedded is that the value pluralism doubt the objectivity of truth.The first step,when exploring the nature of law,positivism believes that law is descriptive,that is,it describe the objective facts without evaluation.When there are disputes over what is law,positivism believes that it can avoid disputes over legal concepts by finding common judgment criteria,which is actually restricted by semantics.Common criterion can only provide the same standard for the concept of criterion,while law is the concept of interpretation.As a standard concept,law cannot solve many problems.Positivists,especially the scientific positivists from Austin,believe that legal interpretation is a scientific explanation and law is a science,which is to collect scientific data and make objective analysis.Bentham regarded law as a series of symbols,and hart devoted himself to seeking a concept that could include any form of law.The purpose of science was to explore causality,not to be diverted by the purpose of the hermeneutic,but to describe the nature of social practice.In the eyes of positivists,social practice is objective and belongs to the concept of criterion.If the law is a standard concept,it cannot explain a lot of hard cases,hard cases will be submitted to the discretion of the judge,there will be problems such as the judge to continue to create.The second step is the binary opposition between the proposition of social fact and theory-embedded judicial theory.The idea of the social fact proposition--that converntional social facts can contain all sources of legal force--is false,for in the first instance there is the disadvantage of choosing one action over the other in the choice of which social facts are legal propositions.Moreover,taking social experience fact as the proposition of legal norm production can only solve the empirical dispute but not the theoretical dispute.The dispute about the existence and content of law is based on the theoretical dispute.In order to fit the value standard of legality,the abstract strategy of conventional proposition and positivism are far-fetched.Inclusive positivism mistakenly believes that the reason why morality can become the criterion of legal validity is the fact that there is a convention that absorbs morality.In fact,most of the moral factors that affect judges' judgment are concurrent morality.Therefore,conventional proposition has some insuperable limitations in determining the legal validity.The source of legal validity must be value,not fact.The third step is to demonstrate the binary opposition between legal dogmatics and the theory-embedded judicial theory.After entering the evaluation system,many scholars believe that legal dogmatism can cover everything,while the theories in the field of legal philosophy seem todeviate from reality more and more,and legal philosophy is no longer used in judicial judgment.Legal dogmatics arises from the need to fill the gap between the norms and the facts when abstract legal norms are applied to specific cases,and to prevent judges from having differences in value judgments about the gap by taking the "received opinions(herrschende Meinung)" recognized by the legal community as an authority based on the norms of positive law.In information cybercrime,due to the influence beyond the value of substantive law,the traditional Legal dogmatical of criminal law confronts the challenge,so it needs the value of the philosophy of law.Legal dogmatics seeks specific values behind the law,however,it faces the philosophical problem of incommensurable values.Therefore,it is necessary to carry out constructive interpretation on the theory of meaning connection,so as to realize the application effect of the same case and the same sentence under a new value consensus.If Legal dogmatics wants to be consistent in theory and practice,it must appeal to the value of philosophy of law.The fourth step is to demonstrate the binary opposition between the pluralism of values and the theory-embedded judicial theory.Mac Cormick argues that value pluralism derives from the specific context of the trial.Hard cases have different circumstances,there are diverse differences in value and theory.It is not in principle possible to entrust hard cases to the theoretical giants.John finis proposed that there cannot be a single positive solution due to the multiple choices of values.The fifth step is to respond to the attack of legal pragmatism,and to answer the question whether the theory embedded judicial judgment can be applied to practice.And further demonstrate the theory-embedded judicial mode is superior to the above theories,and focuses on reiterating dworkin's ethics and right answer proposition.Richard posner believes that judges have neither the ability nor the obligation to provide answers for politics and ethics,which is what philosophers should do.Posner believes that dworkin's theory is not forward-looking and effective.But in fact,Posner is a very short-sighted utilitarianism,and the only positive solution that conforms to the integrity is bound to protect the consistency of the legal system,which is more conducive to the long-term operation of the legal system.And posner's understanding of "work" is the consequence of socialism or are results oriented,whether this kind of result oriented connected to deontological or consistent,that posner has misunderstood dworkin,because theory with the judicial referee pattern orientation is the result of the construction in order to take care of each person's personality equality law community.This has included the fair and equal judgment of each case,and the result of the judgment has also considered the influence on the future practice.Therefore,the theory of theory-embedded judicial thought is not a loyal servant of deontology.However,Dunstein's incomplete theory is not substantially different from Dworkin's theory-embedded judicial thought.Based on the binary opposition propositions about what the law is and contrastive analysis of pragmatism and positivism it can be concluded that the theory-embedded mode of dworkin's integrity theory is obviously superior.Finally,to reiterate the right answer proposition,the law is written,why do judges still argue about what the law is? This proves that law is not a standard concept,but an interpretive one.In the process of constructive interpretation of law,value considerations are inevitably involved.However,the law with the consideration of value(moral value,political value,etc.)must still have the right answer.In judicial practice,if a case has no unique correct solution,it is not a hard case but a pending case.Therefore,the reality requires that hard cases must have a unique positive solution.Since there is only one correct solution to hard cases,an objective factor is needed to be recognized by the legal community,and it can be directly applied to judicial decisions.This is objective truth.Clearly this objective truth in the moral sense is not the same as in the scientific sense.Truth exists in the law's point,any practice has a point,from the perspective integrity,the point of law is equal,this equality is established on the basis of let people live a good,whether people could lice well involves ethical issues,ethics is composed of different goals,achievements and virtue complex structure,to understand any one component in the role of the complex structure,it must detail its role in the overall picture,but the overall picture of determine exactly depends on a number of other components.An integrity law requires a government that speaks with only one voice and treats every citizen equally,but allows people to freely choose a community that is consistent with their pursuit of the values of living well,due to the diversity of people's perceptions of the basic values of a good life.