德沃金的判决理论.ppt

自然法德沃金 楊智傑 老師 德沃金 Ronald Dworkin, QC, FBA (born December 11, 1931) is an American legal philosopher, currently professor of Jurisprudence at University College London and the New York University School of Law, and former professor of Jurisprudence at the University of Oxford. 法律的整全性 He is known for his contributions to legal philosophy and political philosophy. His theory of law as integrity is one of the leading contemporary views of the nature of law. 名詞區分 規則（rule）:法實證主義 政策（policy）：功利主義法學 原則（ principles ） Taking Rights Seriously What is law? What is it for? How should judges decide novel cases when the statutes and earlier decisions provide no clear answer? Do judges make up new law in such cases, or is there some higher law in which they discover the correct answer? Must everyone always obey the law? If not, when is a citizen morally free to disobey? Taking Rights Seriously A renowned philosopher enters the debate surrounding these questions. Clearly and forcefully, Ronald Dworkin argues against the ruling theory in Anglo-American law-legal positivism and economic utilitarianism and asserts that individuals have legal rights beyond those explicitly laid down and that they have political and moral rights against the state that are prior to the welfare of the majority. 規則與原則 1889年紐約州法院的繼承案件 一個人為了繼承殺死其祖父 規則：可以繼承 原則：任何人不應從自己的錯誤中得利 法實證主義認為，欠缺規則時，法官有自由裁量權 德沃金認為：法官必須參考原則，來做出正確決定 政策和原則 政策 政策是綜合性的，促進或保護社會的某重集體目標 目標 原則 原則是分配性的，是尊重和保障個人和集團的權利 權利 反對法官造法的理由 法官不是選舉產生 法官造法，則是創造新法適用於舊情況 批判哈特 Mr. Dworkin criticizes in detail the legal positivists theory of legal rights, particularly H. L. A. Harts well-known version of it. He then develops a new theory of adjudication, and applies it to the central and politically important issue of cases in which the Supreme Court interprets and applies the Constitution. 建構性的解釋理論 Dworkin is most famous for his critique of Harts legal positivism; he sets forth the fullest statement of his critique in his book Laws Empire. Dworkins th