Ronald Dworkin
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Ronald Dworkin (nascido em 1931) é filósofo do Direito norte-americano, e atualmente professor de Jurisprudência na University College London e na New York University School of Law. Ele é conhecido por suas contribuições para a Filosofia do Direito e Filosofia Política. Sua teoria da law as integrity é uma dos principais visões contemporâneas sobre a natureza da lei.
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[editar] Biografia
Ronald Dworkin nasceu em 1931 em Worcester, Massachusetts, EUA. Estudou na Universidade de Harvard e na Magdalen College, Oxford, onde ele era aluno de Sir Rupert Cross e um Rhodes Scholar. Dworkin depois fez Harvard Law School e posteriormente candidatou-se a funcionário para o renomado Judge Learned Hand da United States Court of Appeals. Judge Hand mais tarde diria que Dworkin foi o melhor funcionário que já contratara, e Dworkin lembraria de Judge Hand como um mentor que muito o influenciara. Trabalhando depois em Sullivan and Cromwell, uma firma jurídica proeminente em New York City, Dworkin virou um professor de Direito em Yale University, onde ele tornou-se o titular da Wesley N. Hohfeld Cadeira de Jurisprudência.
Em 1969, Dworkin foi indicado para a Cadeira de Jurisprudência em Oxford, posição essa que ele conseguiu H.L.A. Hart, e foi eleito companheiro da University College, Oxford. Depois de se aposentar de Oxford, Dworkin tornou-se o Quain Professor de Jurisprudence em University College London, onde ele subseqüentemente virou o Bentham Professor de Jurisprudência -- uma posição que ele ainda mantém.[1] Ele também é o atual Frank Henry Sommer Professor de Direito em New York University School of Law e professor de Filosofia em New York University (NYU) [2], onde ele tem ensinado desde o final dos anos 1970.
[editar] Lei como Regra e Princípio
- " A crítica mais significante do Positivismo rejeita a teoria em todos os níveis concebíveis. Ele nega que pode haver qualquer teoria geral acerca da existência e do conteúdo da lei; ele nega que teorias locais de determinados sistemas jurídicos podem identificar a lei sem que se recorra a seus méritos, e ele rejeita o foco institucional do Positivismo como um todo. Uma teoria da lei é, para Dworkin, uma teoria de como os casos devem ser decididos, e começa não com uma consideração da organização política, mas com um ideal abstrato regulando as condições em que governos podem usar força coercitiva sob seus cidadãos." [3]
Dworkin is most famous for his critique of Hart's positivism; he sets forth the fullest statement of his critique in his book Law's Empire. Dworkin's theory is 'interpretive': the law is whatever follows from a constructive interpretation of the institutional history of the legal system.
Dworkin argues that moral principles that people hold dear are often wrong, even to the extent that certain crimes are acceptable if your principles are skewed enough. In order to discover and apply these principles, courts interpret the legal data (legislation, cases etc) with a view to articulating an interpretation which best explains and justifies past legal practice. All interpretation must follow, Dworkin argues, from the notion of "law as integrity" in order to make sense.
Out of the idea that law is 'interpretive' in this way, Dworkin argues that in every situation where people's legal rights are controversial, the best interpretation involves the right answer thesis. Dworkin opposes the notion that judges have such a discretion in difficult cases.
Dworkin's model of legal principles is also connected with Hart's notion of the Rule of Recognition. Dworkin rejects Hart's conception of a master rule in every legal system that identifies valid laws, on the basis that this would entail that the process of identifying law must be uncontroversial, whereas (Dworkin argues) people have legal rights even in cases where the correct legal outcome is open to reasonable dispute.
While Dworkin moves away from positivism's separation of law and morality, his concept suggests that the two are related in an epistemic rather than ontological sense as posited by traditional natural law.
[editar] The right answer thesis
- "Suppose the legislature has passed a statute stipulating that 'sacrilegious contracts shall henceforth be invalid.' The community is divided as to whether a contract signed on Sunday is, for that reason alone, sacrilegious. It is known that very few of the legislators had that question in mind when they voted, and that they are now equally divided on the question of whether it should be so interpreted. Tom and Tim have signed a contract on Sunday, and Tom now sues Tim to enforce the terms of the contract, whose validity Tim contests. Shall we say that the judge must look for the right answer to the question of whether Tom's contract is valid, even though the community is deeply divided about what the right answer is? Or is it more realistic to say that there simply is no right answer to the question?" (Dworkin, 1978)
One of Dworkin's most interesting and controversial theses states that there is only one right answer for most legal cases. Dworkin uses the metaphor of judge Hercules, an ideal judge, immensely wise and with full knowledge of legal sources. Hercules (the name comes from a classical mythological hero) would also have plenty of time to decide. Acting on the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole (law as integrity) in order to decide any particular case. Hercules, Dworkin argues, would always come to the one right answer.
Dworkin does not deny that competent lawyers often disagree on what is the solution to a given case. On the contrary, he claims that they are disagreeing about the right answer to the case, the answer Hercules would give.
Dworkin's critics argue that not only law proper (that is, the legal sources) is full of gaps and inconsistencies, but also that other legal standards (including principles) may be insufficient to solve a hard case. Some of them are incommensurable. In any of these situations, even Hercules would be in a dilemma and none of the possible answers would be the right one.
Dworkin defends his position saying that everyday judges, much like everyday people, find their way and choose between options and values that were supposed to be incommensurable. Dworkin also argues that it is always possible to find out other rules or principles in order to solve the conflict between those we had in mind. The same counter-argument, however, regarding principles and moral standards that are incommensurable, would seem to apply to any further principles or rules we may discover in the process. In other words, the claim that there may always be more principles or rules to be taken into account proves nothing about the nature of those further principles, or about Dworkin's claim that the exercise, in the hands of the omnipotent Judge Hercules, will eventually come to a stop (when we have reached the right answer). In fact, the opposite conclusion could just as well be drawn from Dworkin's claim - that the exercise in question, under the guidance of such an omnipotent figure, would extend into infinity. Thus while a 'right' answer may be available at any given stage, no 'final' right answer would ever be arrived at by Hercules. Or, there is nothing to suggest one way or the other.
Dworkin's metaphor of judge Hercules bears some resemblance to Rawls' veil of ignorance and Habermas' ideal speech situation, in that they all suggest idealized methods of arriving at somehow valid normative propositions. The key difference with respect to the former is that Rawls' veil of ignorance translates almost seamlessly from the purely ideal to the practical. In relation to politics in a democratic society, for example, it is a way of saying that those in power should treat the political opposition consistently with how they would like to be treated when in opposition, because their present position offers no guarantee as to what their position will be in the political landscape of the future (i.e. they will inevitably form the opposition at some point). Dworkin's Judge Hercules, on the other hand, is a purely idealized construct which, as proof of the 'right answer' thesis, can only be taken by something akin to a leap of faith (i.e. if such a figure existed, he would arrive at a right answer in every moral dilemma).
Dworkin's right answer thesis turns on the success of his attack on the sceptical argument that right answers in legal-moral dilemmas cannot be determined. Dworkin's anti-sceptical argument is essentially that the properties of the sceptic's claim are analogous to those of substantive moral claims, that is, in asserting that the truth or falsity of 'legal-moral' dilemmas cannot be determined, the sceptic makes not an ontological claim about the way things are, but a moral claim to the effect that it is, in the face of epistemic uncertainty, unjust to determine legal-moral issues to the detriment of any given individual.
[editar] Theory of equality
Dworkin has also made important contributions to what is sometimes called the equality of what debate. In a famous pair of articles and his book Sovereign Virtue he advocates a theory he calls 'equality of resources'. This theory combines two key ideas. Broadly speaking, the first is that human beings are responsible for the life choices they make. The second is that natural endowments of intelligence and talent are morally arbitrary and ought not to affect the distribution of resources in society. Like the rest of Dworkin's work, his theory of equality is underpinned by the core principle that every person is entitled to equal concern and respect in the design of the structure of society. Dworkin's theory of equality is one variety of so-called luck egalitarianism. See also virtue jurisprudence.
In the essay "Do Values Conflict? A Hedgehog's Approach" (Arizona Law Review, Vol 43:2), Dworkin contends that the values of liberty and equality do not necessarily conflict. He criticizes Isaiah Berlin's conception of liberty as "flat" and proposes a new, "dynamic" conception of liberty, suggesting that one cannot say that one's liberty is infringed when one is prevented from committing murder. Thus, liberty cannot be said to have been infringed when no wrong has been done. Put in this way, liberty is only liberty to do whatever we wish so long as we do not infringe upon the rights of others. Berlin, however, might reply by pointing out that Dworkin has merely constructed one (among others) "positive" conception of liberty. It is this type of exercise - defining liberty according to some other value, some conception of "right" and "wrong", to the exclusion of any notion of value-free, "negative" liberty - that has led precisely to the kinds of totalitarian nightmares seen in the 20th century that Berlin warns against. (Liberty, Oxford University Press, 2002. ISBN 0-19-924989-X, expanded version of "Four Essays on Liberty"). Dworkin's own specific conception may be noble and innocent, but the broader notion of liberty as a "dynamic" value is almost identical to what Berlin describes as "positive" liberty (liberty defined according to other social goals in which it is claimed to be inherent), and exploitable as such.
One further criticism that can be levelled from the Berlinian enterprise is that the so-called "flat" conception of liberty does not entail the liberty to murder - rather, murder (when it does occur) is only a consequence of natural liberty. When one is prevented from murdering, one's liberty is not infringed merely because one is prevented from murdering, but because (more fundamentally) one is prevented from acting at all, by being restrained, handcuffed, put into prison, etc. The fact that one is thereby prevented from murdering is, again, merely a consequence of one's liberty being infringed. Thus Dworkin's argument can be recast as a deep-level consequentialist one.
[editar] Participant in Public Debate
Dworkin is also noted for his avid participation in public debates over law and issues of fundamental rights. He has been a frequent contributor to The New York Review of Books.
[editar] Bibliography
[editar] Works by Ronald Dworkin
- Taking Rights Seriously (1977)
- A Matter of Principle (1985) This book includes the article Is there really no right answer in hard cases? and "Liberalism" (1978).
- Law's Empire (1986)
- Philosophical Issues in Senile Dementia (1987)
- A Bill of Rights for Britain (1990)
- Life's Dominion (1993)
- Freedom's Law (1996)
- Sovereign Virtue: The Theory and Practice of Equality (2000)
- Justice in Robes (2006)
- Is Democracy Possible Here? Principles for a New Political Debate (2006)
[editar] Works about Ronald Dworkin
Most contemporary books on jurisprudence give attention to some or all of Dworkin's views and arguments. The following books are devoted to assessing Dworkin's views and arguments.
- Marshall Cohen (ed.), Ronald Dworkin and Contemporary Jurisprudence. London: Duckworth, 1984.
- Stephen Guest, Ronald Dworkin. Stanford: Stanford University Press, 1991.
- Alan Hunt (ed.), Reading Dworkin Critically. New York and Oxford: Berg, 1992.
- Justine Burley (ed.), Dworkin and His Critics. Oxford: Blackwell Publishing, 2004.
- Scott Hershovitz (ed.), Exploring Law's Empire: The Jurisprudence of Ronald Dworkin. Oxford: Oxford University Press, 2006.
[editar] See also
- Contributions to liberal theory
- Egalitarianism
- H.L.A. Hart
- Interpretivism
- Judicial activism
- Legal formalism
- Legal positivism
- Liberalism
- Philosophy of Law
- Equality
