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Dworkin's Transcendental appeal

Dworkin's Transcendental appeal

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In this essay I give an exposition of Ronald Dworkin’s assessment and critique of the no-right answer thesis in A Matter of Principle, while offering some conjectures on the transcendental nature of Dworkin’s right answer thesis.
In this essay I give an exposition of Ronald Dworkin’s assessment and critique of the no-right answer thesis in A Matter of Principle, while offering some conjectures on the transcendental nature of Dworkin’s right answer thesis.

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Published by: Undergraduate Awards on Sep 01, 2012
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01/19/2014

 
Dworkin’s transcendental appeal.
 In this essay I give an exposition of Ronald Dworkin’s assessment and critique of the no-right answer thesis in
A Matter of Principle
 , while offering some conjectures on thetranscendental nature of Dworkin’s right answer thesis. I will attempt to align Dworkin’s notion of the right answer with Kant’s notion of noumenon; the transcendental spur for the legal endeavor. Subsequently I will brieflyexmaine Dworkin’s ‘legal enterprise’ as akin to Heidegger’s notion of a “sphere of concern”. The concluding analysis will be – that, for the kind of legal objectivity that necessitates the statement “slavery is wrong” he needs to look past the essentiallyrelative
expressions
of a ‘legal enterprise’ and assert a uniform transcendental argument unmediated by the legal language, and based on the establishment of narrativeconsistency.
Ronald Dworkin is writing in chapter five of his book 
 A Matter of Principle
to establishthe “best justification” of the present legal practices.(p143) Charitably he gives a vastamount of air time to ultimately unconvincing arguments. His analysis is generous to positions he finds at best, doubtful and at worst absurd. But given that he wants toconvince the reader that questions can only be answered from ‘inside’ the relevantcontext, he must force immersion upon his audience before we could possibly find hisargument either true or false. Only at that point can a “narrative consistency” be deduced.(p139)
1
In the course of the chapter Dworkin opposes himself to an unnamed philosopher, whoseconcerns are usually meta-legal and characterized by a belief in the “no-right answer thesis”
2
 Hence the sense of this notion must first be explicated before any defense ismade. The fact that this postulation needs to be explained is in itself a convincingargument against it. If the possibility of no-right answer was as pervasive as Dworkin’scounter argument is concerned to show, there would be very little need of exposition.
1
Dworkin, R.
 A Matter of Principle.
Harvard University Press 1985 (p119-145)
2
The ‘no right answer’ thesis is one which asserts that the ‘correct’ answer to a legal equation is a myth.The arguments, (as we will see) are many, but usually boil down to a concern with the sheer mass of variables put into play by a legal theorist.
 
1.
However, we’ll go through the motions. There are two arguments which Dworkin places in the open mouths of his opponents. The first version argues against the law’sown notion of itself. Or I should say, it argues against the bivalent nature in which“lawyers seem to talk” of judgments. (p123) The supposition is that the statement “Tom’scontract is valid” is not in actual fact the negation of “Tom’s contract is invalid” hence,the indeterminacy of the “right answer” thesis becomes clear. I’ll try to show how theconjecture makes sense.There is a hypothesis of a “third answer” between (p) and (~p), it is stated that (non-p)does not merely entail (~p) but could, in border line cases evoke (r) or even (q).However, a problematic contention arises in the appeal to legal practice. Given that thisshould be the decisive criteria, the theory walks a knife edge “since lawyers do seem totreat “not valid” as the negation of “valid” (p123) The determined space in between the
legal 
designations enforces a duty to choose either way. That dispositive questions i.e.ones forcing a choice, exist outside the law does not require their indeterminate answers be included inside the duty of legal service. A legal concept is “an argument in itself” for the implementation of rigorous exactitude with respect to rules of the court.(p124)Therefore “the theory is not sound” because the “law is not a person” and in practice alawyer’s potential indecision is pushed aside by the demands of 
realism
and
duty
.(p126-27) “The need for concepts having that function in legal argument arises
because
theconcepts of right and duty in which conclusory claims are framed are structured,» by theconcerns of the court and a need for judgment one way or the other (p125)A variation of the first no-right answer thesis, which affects to be a semantic claim,equally fails. Identifying the criteria of ‘valid’ with the judge’s duty to impose the judgment ‘valid’ falters due to the fact that one is usually the premise of the other.‘Valid’ ‘Invalid’ or its in-between is determined at the judges discretion There is ahierarchical structure of argumentation which gives precedence to the authorativediscretion of the judge.
 
2
. Moving swiftly we come to the second version of the ‘no right answer’ thesis, and itsvariations. The argument is a genuine semantic argument, if only that it appeals to in-discrepancies within the general semantic scheme.In its first instance the argument from vagueness functions by conflating the existence of vague terms in the legislature to all the terms in the legislature. The argument fromvagueness proceeds to assert the dramatic notion that there is never any right answer. Theassumption “is plainly wrong” due to the contextual tests implemented to determine the“force a vague word” might conceivably exert. (p129) An argument for the appropriate
use
is affected in the legal proposition which practitioners put in play. The considerationsattempt to determine the meaning that “best advances the set of principles and policies”for the cultural or temporal context of the statute. This contextual ‘verification’ method,at least reduces the notion of indeterminacy in the law.
A
. Vagueness necessitates the notion of hierarchy. The assertion of an ‘object’ as ‘green’could to be rendered senseless, or indeed non-sense by an unforeseen shift in the meaningof designating term applied to the ‘object’ or to ‘green’ in conversation. An unforeseenvagueness in
use
does not challenge notion of semantic determinacy, Dworkin can denythe reception of the prior statement entire, and rephrase for effective communication. Thesceptic can then further cast doubt on the surety of that denial with a renewed accusationof vagueness. An ever ascending scale of indeterminacy proposed by the sceptic shootsitself in the foot in the traditional manner. There can be no universal diagnosis of indeterminacy, without retroactive application to the diagnostic statement itself.Dworkin’s refutation is more subtle, he offers that despite these potential vagaries, the practice of the law is argumentation which assumes these vagaries as constituents. Thereis no point where the law bows before the fears of indeterminacy. Relevant conceptualentities whatever their consistency, are always incorporated. Indeterminacy simplysupplies a “further fact” (p131) for the judicial equation.
B.
Shifting the terms of the argument yet again, Dworkin makes a case for positivism.The most compelling aspect of the case is the appeal towards “necessary and sufficient”conditions. Positivism is originally structured as an appeal to normative practices

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