摘要
中国法律人形象的模糊性和暗昧性是一个不容忽视的问题,这个问题迟迟没有得到解答已经影响到中国法学的健康发展。在这方面,美国法理学家罗纳德·德沃金的尝试值得借鉴。德沃金成功地建构了一个完美的法律人形象"赫拉克勒斯",该形象在德沃金主要论著中日臻完美。通过比较德沃金法理学和其他当代法律理论,本文探讨了德沃金法理学的优点和缺点,从德沃金法理学思想尤其是他的理想法律人观念引申出建构中国理想法律人共同体的建议,以尝试回答当代中国法学正面临的相应问题。
uncertainty, confusion, and disorder are serious matters among contemporary Chinese lawyers and jurists community. It brings about a problematic, ″how should an ideal jurist image be set up?″ In this respect, American legal and political philosopher Ronald Dworkin provides such an ideal image and gives this ideal lawyer a ringing name, ″Hercules″, who has uncommon wisdom and great authority to deal with hard cases. Comparing with some other contemporary jurists' legal theories, this paper discusses the main merits and lacks of Dworkin's jurisprudence and how he constructs such an ideal jurist.Firstly, In light of interpreting Dworkin's main works,Dworkin wants lawyers have strict sanction of lawyers society. This sanction at first should manifest such an idea, when lawyers discuss constitutional cases, they should take a principle priority to a policy. Dworkin argues the objectivity in philosophy is the ground to insist on principle and to hold legal interpreting politically. Legal research and legal criticism are interpreting activities. It is a matter of interpreting, not a matter of invention. Legal analysis is fundamentally interpretive. So Dworkin rejects the opinions from Stanley Fish and Richard Rorty, who want to dissolve a rigorous distinction between ″discovery″ and ″making″, ″interpreting″ and ″invention″. Rorty tries ″to stop using the distinction between finding and making, discovery and invention objective and subjective″ . Dworkin believes that that distinction is important. Legal interpreting is an enterprise of discovery, an enterprise of politics. In this respect, we should firmly refuse subjectivity and uncertainty, and hold objectivity and seriousness. Dworkin has a consistency and strictness in arguments, such as ″I have no arguments for the objectivity of moral judgments except moral arguments, no arguments for the objectivity of interpretive judgments except interpretive arguments″. Secondly, Dworkin makes ″justice″ and ″efficiency″ at daggers drawn, and firmly spurns economic analysis of law. Dworkin stresses the importance to interpret Constitution morally. He argues that lawyers have to be deeply concerned about the morality of legal problematic. And he positively explores that dimension. He explains the reasons to interpret laws and Constitution morally. Dworkin argues it is impossible and unreasonable that some legal theorists, such as Richard Posner, try to desalt or neutralize the moral dimension of law. He criticizes the subjectivism, skepticism and individualism in legal interpreting. When Posner thinks that we should take seriously the opinions of Stanley Fish about legal interpreting, Dworkin rejects Fish and Posner all together. He thinks that we had better not care about Fish's works. And the economic analysis of law still does not get philosophical grounds for its rationality or legality.Thirdly, the main problematic of today's jurisprudence in China is its confusion or uncertainty as a discipline. Its main trouble is Chinese academic lawyers have to coincide two different directions, one is that of humanities and the other is that of sciences. For dissolving this problematic, this community has to realize a research-pattern turn. And in this respect, Dworkin has some good suggestions. (a) Chinese lawyers should have series of special methods of legal thinking, and at first they have to think according to legal principles, if a lawyers and jurists community is a professional one, then it is a community to hold these principles. To hold these principles is the Sovereign Virtue of this community. In other words, to think according to law is to think according to the principles of law. (b) And certainly, legal researches may achieve serious results. So on the issue of judicial discretion, Dworkin has to suppress the imaginations of lawyers and jurists. On a matter of principle, he does not find the space of Richard Rorty's post-metaphysics hopes, imaginations and poetry dreams. It is a necessary cost to do legal researches. So Dworkin does not allow Posner to ov
出处
《浙江大学学报（人文社会科学版）》
CSSCI
2005年第2期127-134,共8页
Journal of Zhejiang University:Humanities and Social Sciences
基金
教育部哲学社会科学资助项目"后现代影响下的西方法哲学研究"(203200-G50473)阶段性成果
浙江省政府留学回国人员研究基金资助项目"法律解释的类型学研究"(203200-G52306)。
