Research On Dworkin's "difficult Cases" Adjudication Theory

Hard cases,in which a certain guidance on judicial decision can’t be divided by rules and thus facing the problem of "uncertainty",has received great attention in both Western and Chinese judicial adjudication theories.There are two opinions on the emergence of "hard cases":Hart-led positivists adopt a semantic approach,regarding them as cases falling on the edge of rules’ open texture.Semantic theories of law lead to a hermeneutic method on canon of texts.Dworkin dismissed this opinion as"the semantic sting" and suggest that the argument in hard cases is not semantic,but the dispute on the grounds of law.This theoretical controversy theory raises a constructive interpretation method in hard cases.The process of judicial interpretation is divided into three stages:In the pre-interpretation stage,the judges reached a consensus on the content of the law to be interpreted.In the interpretation stage,judges construct principles with their beliefs in legal value.In the post-interpretation stage,judges introspect and evaluate on the interpretation results.Dworkin proposes two criteria for testing the results of judicial interpretation:According to the dimension of fit interpretation must be coincident with past legal practice,this is the entry requirement.In hard cases,multiple consistent interpretation results appear,judges choose the best solution according to the dimension of "clarify"--An interpretation that best embodies the political and moral consensus of a particular community.Judicial adjudication is the process of finding "the right answer",not the rationalization of arbitrary choice.The pre-interpretive legal consensus embeds in the answer of "what is law?"Three legal concepts are formed on this basis.Conventionalism holds that the law is a social fact,it is an explicit extension of past political decisions.In hard cases,the rules are exhausted and the judges use discretion.In order to limit such discretion,so that it won’t overstep democratic legislative power,conventionalism recommended judges conducting the "legislator’s intention discovery" reasoning.Legal pragmatists regard the law as a living fact,and the judges have no obligations to follow the precedent.Judges always look "forward" in judicial adjudication,even referred to hard cases.They construct arguments parasitic on the goal of "wealth maximization".On the basis of criticizing the previous two theories,American scholar Dworkin put forward the concept "law as integrity".He pointed out that the legal system is not just a collection of statute,legal content is legalized and extended by the consensus of specific communities on a range of underlying basic normative principles.These principles are "implicit," "potential," or "inherent" in previous political decisions,regulations,and other relevant legal texts.They are "instinct laws." The law is not a system with rule loopholes,but a seamless network.In addition,propositions of law are basically the right thesis,the legal content of judicial referee referred to principles,policies,etc.in hard cases.However,the existence of individual rights can only be proved by principle arguments,but not be justified by a policy argument which aims to demonstrating a collective goal benefit,due to the lack of justification for coercive use provided by this pragmatic strategy.Interpretation activities are conducted under the guidance of "value".Conventionalism recognizes that judicial decisions should keep consistent with past political decisions,serving the value of due process.When faced with hard cases,owing to the lack of explicit legal decisions,no further respect is required,and judges can be discretionary.Dworkin pointed out that integrity is a value independent of irness,justice,and proper procedures.It requires no mechanical obey to rules and conventions,but deep consistency of principles.Therefore,in hard cases,judges can still find arguments in political and moral principles and make post-interpretation evaluation of interpretative results,basing on the requirement of equal respect and treatment for civil rights,which is not provided by conventionalism and pragmatism.Because of its consistent pursuit of political and moral principles,the integrity judicial method guides judges to conduct moral reasoning in hard cases,which leads to two criticisms:questioning the necessity and possibility of judges’ moral reasoning and questioning whether the results of moral reasoning are uniquely correct.External moral skeptics refute moral reasoningon the basis of the incommensurability of moral truth,while internal moral skeptics doubt whether there is a best answer in multiple moral arguments on the basis of the incommensurability of value.Dworkin responded to the external moral skepticism with his interpretive view of truth.Dworkin responded to internal moral skepticism by pointing out that ethical values governs individual choices,while morality constrains how we treat others.Individual choices can be varied,there is no right or wrong,while morality has a uniform standard.He did not put forward a standard to commensurate "fit" and "clarify",but retorted that"incommensurability" is not the default proposition,so whether it is valid still needs substantive argument I think that critics of "the right thesis" on the moral position misunderstood Dworkin’s thesis.Rather than providing a physical answer which can be proved the only correct decision among several constructive consequences,he is trying to provide a way of thinking and reasoning to achieve such an answer in hard cases.The point is to guide judges to ask questions,not to direct them to a particular answer.Another criticism of the integrity approach comes from the practical level.The pragmatists led by Posner find it difficult for the realistic judges to be as thoughtful and omniscient as the "Hercules" model constructed by Dworrkin.He refutes the possibility of using the integrity approach,however,his goal of welfare maximization also requires the interpretation of the judge himself.Moreover,realistic judges and"Hercules" differ only in the gradient of reasoning but not in the content and method of legal interpretation.Pragmatic methods cannot effectively avoid substantive reasoning.Dworkin’s integrity judicial theory embodies the transformation from standard concept to interpretive concept,from realism to normative theory,from metaphysics to convergence of vision and from paradigm to observer,so it has special significance in legal philosophy.The theory also unifies the descriptive dimension and normative dimension of legal practice and maintains the autonomy of legal reasoning.