Judges Taken Too Seriously: Professor Dworkin's Views on Jurisprudence*

Abstract. The author analyses Ronald Dworkin's ideas about legal theory and legal philosophy, with particular regard to metatheoretical and methodological problems. He focuses on the questions of the function and the object of jurisprudence, and on those of the content and method of argumentation of jurisprudence. According to the author, Dworkin's theory is a normative theory, an ideology referred to the judicial practice. Although judges really make law, one can deny that they do. This strategy is the one judges traditionally employ when they say that they are merely applying the law-giver's intentions or fundamental principles that existed long before the case they have to decide. It is that discourse, not rights, that Dworkin takes seriously.     

Legal Principles and Legal Theory

Current legal theory is concerned with the presence of principles in law partly because they are at the core of Dworkin's criticisms of Hart's rule of recognition. Hart's theory is threatened by the possibility that the identification of some principles follows an extremely relaxed rule of recognition, or even no rule at all. Unfortunately, there is no conclusive test to ascertain what is the case in actual practice. On the other hand, the evaluative arguments which support Dworkin's proposal of principled adjudication are forceful but not conclusive. Moreover, since ultimate controversy over values is plausible, judicial discretion may sometimes be inevitable.     

Legislative Intent in Law's Empire*

This article considers Dworkin's influential argument against legislative intent in chapter 9 of Law's Empire. The argument proves much less than is often assumed for it fails to address the possibility that the institution of the legislature may form and act on intentions. Indeed, analysis of Dworkin's argument lends support to that possibility. Dworkin aims to refute legislative intent in order to elucidate his own theory of statutory interpretation. That theory fails to explain plausibly legislative action. Dworkin's argument does not refute legislative intent but instead suggests there is reason to think that the legislature is capable of intentional action.     

知识产权诉讼中的鉴定人制度探析

知识产权诉讼中的鉴定人应定位成类似于专家证人的法官辅助人。其资质的认定应以鉴定权主义为原则,鉴定人主义为例外。当事人和法院均对鉴定人有选任权,但法院对当事人所选定的不合资质的鉴定人有否决权。其权利义务除遵循我国相关法律法规外,宜吸纳英美法系某些关于专家证人的义务规定。其鉴定意见须经法庭质证,由法官对鉴定意见的可采性做出判断。其责任追究应采用过错原则,错鉴责任的过错须是主观故意或重大过失。     

Proportionality in Sentencing and the Restorative Justice Paradigm: ‘Just Deserts’ for Victims and Defendants Alike?

The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their ‘just desert’. In Australian sentencing law, proportionality goes some way toward achieving this ‘balanced’ approach by requiring a court to consider various and often competing interests in formulating a sentence commensurate with offence seriousness and offender culpability. Modification of sentencing law by the introduction of victim impact statements or the requirement that sentencing courts take explicit account of the harm done to the victim and community has generated debate, however, as to the extent to which offenders may be now subject to unjustified, harsher punishments. This article proposes that in order to overcome the controversy of the modification of offender and victim rights in sentencing, sentencing courts adhere to a doctrine of proportionality that is explicitly sensitive to the needs of victims and offenders in a model of restorative justice that focuses on the consequences of crime as against the individual, rather than the state. The extent to which proportionality, as the current constitutive principle of Australian sentencing law, may be modified to better encourage a dialogue between victim and offender is discussed.     

The European Arrest Warrant in a context of distrust: Is the Court taking rights seriously?

During a time of distrust towards some Member States, the position of fundamental rights when executing a European Arrest Warrant (EAW) has been strengthened. The article considers whether the European Court of Justice (ECJ) is now ‘taking rights seriously’ as regards the EAW. To this end, it employs a theoretical and contextual approach that supports a comprehensive analysis of case-law. First, the article borrows from a theory of rights as trumps and observes that rights are no longer treated as norms with no special force that are in the way of cooperation interests. Second, the article offers a contextual exegesis of this trajectory, by mapping drivers of distrust and evaluating their impact on the position of rights. Through contextualisation, it is argued that distrust, although limited by its circumstances, has offered a compelling opportunity for the ECJ to take rights seriously, paving the way forward for future case-law.     

The Legality of Law

Abstract. In this paper I outline various different objects of investigation that may be picked out by word “law” (or its cognates). All of these objects must be investigated in an integrated way before one can provide a complete philosophical explanation of the nature of law. I begin with the distinction between laws (artefacts) and law (the genre to which the artefacts belong). This leads me to the distinction between the law (of a particular legal system) and law (the genre of artefacts). Then I discuss the contrast between law (the genre of artefacts) and law (the practice). Finally I comment on legality as the name of an ideal for laws and legal systems to live up to. I commend H. L. A. Hart's explanation of the nature of law for investigating these various objects in an integraed way, while nevertheless respecting the distinctions among them. I also criticise some of R. M. Dworkin's work for failing to respect the same distinctions.     

In Defence of Due Deference

The doctrine of deference permeates human rights review. It plays a role in defining Convention rights, in determining the nature of the proportionality test applied when analysing non-absolute rights, as well as in deciding the stringency of its application. The role of deference has recently been subjected to both judicial and academic criticism, some of which advocates the demise of the doctrine. This article develops a contextual account of deference that is justified for epistemic reasons, rather than reasons of relative authority. This conception is able to withstand current criticism and is modest enough to play a role in a range of different justifications and understandings of judicial review under the Human Rights Act. The article then provides a more detailed account of deference, taking account of the relative institutional features of the legislature, executive and judiciary, without running the risk that the court fails to perform its constitutional function of protecting individual rights.     

The reasonable citizen: A model for bridging ethics and politics in the EU

The ethical-political model of the EU needs normative rethinking after the pandemic. Using Dworkin's ‘thesis of continuity’ between ethics and politics, I argue that a strong model of the citizen, called on to exercise duties and civic virtues, is badly needed by the EU. The legitimacy of EU political institutions is not enough, if we want to promote the participation of citizens to their functioning. The basic point is that of arguing in favour of the model of ‘the reasonable citizen’, aimed to overcome the dominant liberal model of ‘citizenship as rights’. This is shown by the ‘European Social Model’, but its weaknesses need to be supplemented by a republican conception. In order for the reasonable citizen not to be just an abstract ideal, some measure of operationalisation is proposed through ‘progressively increasing constellations of common identities’; these rely on and respect the multiple demoi of the EU.     

Dworkin and Phenomenology of the “Pre‐Legal”?

Ronald Dworkin states in his preface to “Law's Empire” (1986) that he is doing a phenomenology of law. In regards to a phenomenology of law, I wish to investigate Dworkin's theory of law, and subsequently, what is left out in order for it to be considered a phenomenological account. In doing so, I will compare Dworkin's phenomenology of law to Schütz's phenomenology of the social world. The comparison between the two will illuminate what I believe is necessary for law, and that is a Phenomenology of the Pre‐Legal.     

民事责任的两种规范模式

民事权利义务规范的设定有行为本位和资源本位两种模式,民事责任规范作为民事规范的一种也不例外。传统的学说将民事责任界定为义务的违反显然是行为本位视角的产物,实际上民事责任的产生与当事人的义务违反没有必然联系。民事责任是为保护民事权利或者法益,基于特定的法律事实而对一定的民事主体产生的不利后果。根据民事规范的设定模式,可以把民事责任规范设定模式分为“义务(行为)——责任”模式和“权利(资源)——责任”模式两种,其中前者是行为本位视角的产物,后者是资源本位视角的产物。     

Remarks on the Normativity of International Legal Rules and Global Constitutionalism

The article reflects on the possibility of conceptualising the complex problem of the normativity of international legal rules, including in particular the phenomenon of “relative normativity.” The author utilises the critical potential of Ronald Dworkin's proposal for a new philosophy of international law to reflect on the classical accounts explaining normativity of international law. By building on Dworkin's argument, the author argues for a constitutional account of international law. The far‐reaching constitutional proposals may provide a more complex and coherent set of possible rationalisations of international legal rules. International law is in great need of a comprehensive theory that could better explain its normative character as well as its sources, and it is argued that international constitutionalism has the potential to serve this purpose.     

计算机网络犯罪对刑事诉讼的挑战与制度应对

计算机网络犯罪对现代刑事诉讼带来了严峻的挑战。为应对这一挑战,许多国家建立了专门打击计算机网络犯罪的侦查机构,并扩大其适用技术侦查措施的权限。根据不同的标准,可以对打击计算机网络犯罪的技术侦查措施做出不同的分类。为防止侦查机关在打击计算机网络犯罪过程中对公民权利造成不必要的损害,技术侦查措施的适用必须遵循司法审查原则和比例原则。美国"肉食者"系统和"棱镜"项目存在突破比例原则和司法审查原则的风险。我国在打击计算机网络犯罪的制度建构方面存在严重问题,必须进行全面改革与完善。     

民主与民本辨析——兼与“新民本论者”商榷

民本与民主是两个不同的范畴,有着不尽相同的价值取向。民本是从中国传统文化中提炼出来的一个范畴,它所对应的是自先秦以来中国传统文化中的“重民”、“保民”等思想资料。而民主则是从西方社会移植过来的一个范畴,是对议会制度、公民参与等制度和价值的理论概括。民主并不是中国“古已有之”的价值理论,也不是从民本思想中“自然演化”而来的,而是来自于中国人在近代以来向西方的学习和借鉴。民主理论可以涵括并实现民本主义中“为民”的政治理想,而民本主义则具有双面性,一方面它含有“民有、民享”的精神,具有通向民主主义的可能性;但另一方面,因为它缺少人民参政权要素,而是主张由圣君贤相治理国家,因此也可以成为专制政治的护身符,而不可能成为当代民主与宪政建设的理论基础。     

Legislative Intentions and Counterfactu-als: Or,What One Can Still Learn from Dworkin's Critique of Legal Positivism

Riggs v. Palmer has become famous since Dworkin used it to show that legal positivism is defective. The debate over the merits of Dworkin's claims is still very lively. Yet not enough attention has been paid to the fact that the content of the statute at issue in Riggs was given by the counterfactual intention of the legislature. According to arguments from legislative intent, a judicial decision is justified if it is based on the lawmaker's intention. But can legislative intentions be determined counterfactually? More generally, what are the discursive commitments undertaken by a lawyer or a judge, in an exchange of legal reasons, when using this interpretive methodology? This paper addresses these issues considering, in particular, David Lewis's “resemblance” condition and “relevant similarity” between possible worlds in the evaluation of counterfactual statements. The analysis sheds some new light on the debate on theoretical disagreements and shows that Dworkin's conception of law as an argumentative practice is not necessarily at odds with legal positivism. It rather allows us to look at it under a better light.     

Environmental Rights for the Future? Intergenerational Equity in the EU

Courts, commentators and legislators in Europe and around the world have now recognized that environmental degradation may constitute a violation of human rights. While the human rights model may be effective in addressing the environmental interests of existing human beings, there is a pressing need for a legal doctrine that effectively addresses the environmental rights of the future. Although the EU has actively embraced the sustainable development model and its recognition of the environmental needs of future generations, it has failed to embrace the correlative doctrine of intergenerational equity – a detailed, specific and pragmatic legal framework for global and domestic environmental governance. This article assesses EU environmental law and policy against the requirements of the doctrine of intergenerational equity and concludes that the EU's sustainable development model is inadequate from the perspective of future generations. The recommendation is made that the EU adopt intergenerational equity as a necessary corollary to sustainable development.     

The greater good?: issues of proportionality and democracy in the doctrine of necessity as applied in Re A

This article examines the criminal law doctrine of necessity as applied in the conjoined twins case (Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961). It determines that the public law principle of proportionality underlies the doctrine, but identifies the preservation of life as the guiding principle behind the Court of Appeal's use of necessity in Re A. The article is critical of this elevation of the preservation of life under the doctrine of necessity and argues for an alternative conception of necessity based upon fundamental constitutional principles such as human rights and democracy. The principle of democracy has particular pertinence to the issue of necessity because it may be endangered by this common law justificatory defence. This conflict between democracy and necessity, it is argued, further supports the need for the constitutional value of democracy to play a key role in any application of necessity in future cases.     

Two Concepts of the Margin of Appreciation

The doctrine of the margin of appreciation that the EuropeanCourt of Human Rights has developed in its case law has givenrise to considerable criticism. In this article I draw a distinctionbetween two different ways in which the Court has used the doctrine.The first one is in cases where the Court has to decide whethera particular interference with a Convention freedom is justified.In answering that question, the Court often uses the label ‘marginof appreciation’ without drawing on a substantive theoryof rights that can justify the conclusion reached. The seconduse appears in cases where the Court refrains explicitly fromemploying a substantive test of human rights review on the basisthat there is no consensus among Contracting States on the legalissue before it. My aim is to highlight the principles thatcan be used to justify each use of the doctrine, by locatinghuman rights within broader issues in moral and political philosophy.Particular emphasis is placed on the distinction between reason-blockingand interest-based theories of rights as well as on the natureof the duties of the European Court, as a matter of internationalhuman rights law.     

Taking Life and Liberty Seriously: Reconsidering Criminal Liability Under Article 2 of the ECHR

What is the relationship between the right to life and criminal liability, and what should it be, given the significance we rightly attribute both to human life and to human freedom? This article explores the circumstances in which the European Court of Human Rights imposes a positive obligation to criminalise and pursue criminal forms of redress, and concludes that the Court's doctrine carries the potential of both coercive overreach and dilution of the right to life itself. These problems are compounded by opacity in the Court's doctrine. I propose a way forward that takes both the right to life and human freedom seriously.