quarta-feira, 18 de agosto de 2010

Bibliografia sobre o Dwokin e seu debate com Hart

It is the purpose of this paper to propose and defend a potential resolution of a long-standing conundrum in the philosophy of law. The conundrum is posed by the conceptual impasse emerging from the debate between H.L.A. Hart and Ronald Dworkin over the nature of “the law.” The paper is developed in three sections. The first contextualizes the debate between these giants in the field of jurisprudence. The second section develops in some detail the positions of each thinker on this central issue in legal philosophy ? the “rules” approach of Hart and the “principles” approach of Dworkin. This section also sharpens these differences in terms of the broader issues which their debate poses for the larger field of philosophy of law. A third section proposes a Polanyian model for reconsidering this apparent impasse. The model develops an approach to decision-making in terms of “universal intent.” The paper’s conclusion seeks to establish that this model can be applied to the philosophy of law and effectively forge a compromise between the competing views of Hart and Dworkin.
In the latter half of the last century, the prominent legal theorists Lord Patrick Devlin, Ronald Dworkin, and H.L.A. Hart engaged in a debate over the issue of moral legislation and democracy. Lord Devlin argued for the right of society, through democratic institutions, to protect and preserve its moral traditions. Dworkin and Hart each effectively criticized Devlin's arguments in their own way, but it will be argued that even Dworkin and Hart do not completely close the door to moral legislation. More importantly, it will be argued that Devlin's argument for the right of society to enact moral legislation fails on its own grounds. Political and economic theory and history inform us that granting the power of moral legislation to the State, even a democratic one, actually has the opposite effect Devlin expects. Rather than preserve existing moral institutions, the power of the State tends inevitably to be commandeered by (coalitions of) vocal minorities who favor alternative institutions, giving them a disproportionate influence over legislation and the vast coercive power of the State compared to that of the silent majority. This leads to significantly faster change in traditional institutions than
would result from moral suasion and laissez-faire social evolution. It will also be argued that Devlin's rights-based argument suffers from two logical fallacies: composition and misplaced concreteness. Finally, a distinction will be made between vices and crimes, and it will be argued that only the latter should legally justify the use of force.

3.SCHAUER ON HART. William Twining.

Nicola Lacey’s A Life of H.L.A. Hart: The Nightmare and the No-ble Dream1 has attracted a great deal of attention, some controversy, and, deservedly, much acclaim. For me, reading this superb book was a painful experience. It tells a sad, at times tragic, story of a brilliant and attractive person who never fully enjoyed the respect and success that he earned. Indeed, it is a story of a conflicted individual who struggled with deep ambivalences about his Jewishness, his sexuality, his marriage, and his political commitments.2 Herbert Hart was also tormented by self-doubt. Such doubts and ambivalences affected his professional life. It is mainly for this reason that this intimate biogra-phy sheds light on his work as a jurist.


For three decades now, much of the Anglo-American legal philosophy curriculum has been organized around something called the Hart/Dworkin debate, a debate whose starting point is Ronald Dworkin's 1967 critique of the seminal work of Anglophone jurisprudence in the twentieth-century, H.L.A. Hart's 1961 book, The Concept of Law. This essay reviews the Hart/Dworkin debate and argues that it no longer deserves to play the same organizing role in the jurisprudential curriculum of the twenty-first century that it played at the close of the twentieth: on the particulars of the Hart/Dworkin debate, Hart has emerged the clear victor, so much so that even the heuristic value of the Dworkinian criticisms of Hart are now in doubt. (Dworkin's quite recent polemic against legal positivism in the 2002 Harvard Law Review is also addressed briefly.) The significant philosophical challenges that face legal positivists are now different, often in kind, from the ones Dworkin made famous. These, I shall argue, fall into two broad categories: first, the correct account of the content of the rule of recognition and its relationship to the possibility of law's authority (the Hart/Raz debate); and second, the proper methodology of jurisprudence, a debate which aligns defenders of descriptive conceptual jurisprudence (like Hart and Raz) against two sets of opponents: natural lawyers like Finnis, Perry and Stavropoulos who challenge whether jurisprudence can be descriptive; and philosophical naturalists, like the present author, who question whether conceptual analysis is a fruitful philosophical method in jurisprudence (or elsewhere).


Two recent excellent volumes show both the strengths and weaknesses of contemporary and serious Dworkin scholarship.1 Mostly the articles are new although Susan Hurley’s paper in the Hershowitz volume was first published in 1990. As to be expected with work on Dworkin the division between political and legal theory is not distinct because - as is wellknown - he integrates moral problems of politics both into the choice of legal theory and legal argument itself. But some issues may be separated and since there are excellent essays on both equality of resources and the relevance of ‘intrinsic’ values, I’ve separated my discussion into the two heads of ‘legal theory’ and ‘political theory’. Work on his political theory is not as advanced as it is on his legal theory and so I have largely directed my attention to the latter. I conclude that the most profitable work with Dworkin’s legal theory
lies in exploring the idea of the ‘interpretive concept’ and its connection with moral ideals, and in assessing the moral weight of integrity, particularly against the ideals of justice and fairness. Almost all the essays on legal theory show awareness of difficulties concerning these two issues although no one takes on interpretivism directly (it is brilliantly described by Arthur Ripstein, along with the rest of Dworkin’s methodology, in the introduction to his volume). However, Stephen Perry and Dale Smith in the Hershowitz volume and Sanford Levinson in the Ripstein volume push the boundaries some way with integrity.

Michael Steven Green
In this review essay, Professor Michael Steven Green argues that Dworkin’s reputation among his fellow philosophers has needlessly suffered because of his refusal to back down from his “semantic sting” argument against H. L. A. Hart. Philosophers of law have uniformly rejected the semantic sting argument as a fallacy. Nevertheless Dworkin reaffirms the argument in Justice in Robes, his most recent collection of essays, and devotes much of the book to stubbornly, and unsuccessfully, defending it. This is a pity, because the failure of the semantic sting argument in no way undermines Dworkin’s other arguments against Hart.

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