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On Dworkin’s Rights Thesis

Author: LiDanYang
Tutor: YaoJianZong
School: Jilin University
Course: Legal
Keywords: Dworkin On the rights of Right Principle Rolls Reflective balance Social Contract Original state
CLC: D90
Type: Master's thesis
Year: 2011
Downloads: 206
Quote: 0
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Abstract

Why is the theory of rights? Why is Dworkin? Why is the author? Answer for why study the theory of rights: rights theory is an important opportunity for Chinese transformation of the social transformation of Sino-French jurisprudence. Why Dworkin's rights theory, rather than the right theory research of other scholars answer is: Chinese scholar for Dworkin rights on, relative to other Western rights theory of Chinese scholars, to carry out the earlier greater scale of the study, Dworkin's rights theory, in fact, from the obligations based to a rights-based transformation of Chinese law theory has played an important role. Then the third question, since Chinese scholars Dworkin's rights theory has been relatively already begun a large-scale study, then I why research Dworkin rights theory? I believe that the reason is that there are two of this article two innovations: First, this article focuses on the theory of default and the conclusions of the theory of distinction, the existing domestic second-hand literature have neglected this important distinction, to the neglect of this distinction, may lead to misreading ; Second, this article focus on painting diagram logic diagram to aid in the understanding and research on innovation as a way of writing, this approach can be more concise, clearly reflects the need to use the language tedious narrative and not easily understood abstract theory. The above is the author write Dworkin rights theory why this domestic science research has long been topics. Dworkin's rights theory originated in the 1950s and sixties, American society as a whole in the ideological sphere confusion, the traditional liberal attitudes of Western society by conservatism and radicalism attack. The conservatives blame the social behavior of laissez-faire liberalism think liberal too much freedom, resulting in pornography, sexual liberation, abortion, drug abuse, and other social and moral corruption of the individual. Radicals criticized the liberal emphasis on the redistribution of wealth and poverty eradication. This social ideological confusion led to a crisis of faith in American society, and Western traditional values ??endure for centuries under suspicion and appeared shaken. Dworkin its legal and political philosophy, in response to such shocks. Dworkin: legal uncertainty reflects the uncertainty of a traditional political attitudes, and that the attitude of the traditional liberal political uncertainty led to legal uncertainty. Dworkin sixties and the seventies of the last century the purpose of writing a series of papers is to define and defend the freedom of a legal theory. A series of papers in Dworkin's sharp criticism of another is widely regarded as a liberal theory of law - law positivism. A general theory of law is composed of two parts by the descriptive-oriented and normative-oriented. Dworkin, from the description of the critical legal positivism oriented, that is, as the center and organizational framework of legal positivism proposition: Rules proposition pedigree proposition, discretionary proposition, the legal obligations of the sources proposition to start to build the early law theoretical description for - Principle of the. In order to critique the normative legal positivism - utilitarian-oriented, Dworkin development of the early law theory normative oriented - right theory. This article is Dworkin's rights theory from the theory of default traced to the theory of concrete expansion. Including the introduction and conclusion, this paper is divided into five parts. The first part is an introduction, background rights theory of time and space, and this research motivation, problem awareness, research methods, the paper is organized. The second section discusses the nature of the right theory. The descriptive part of a general law theory is rooted in the philosophy of language, and the philosophy of language and the use of logic and metaphysics; normative part rooted in political philosophy and moral philosophy, political philosophy and moral philosophy in turn depends on human nature philosophical theories and philosophical theory of moral objectivity. Dworkin's rights on a normative part of the theory as a general law, political theory. Political theory needs to comply with the principle of political responsibility. Required by the principle of political responsibility is the same situation is treated in the same way, that is clear and consistent. So, as any kind of political theory, rights theory consistent. As for which aspects of consistency, it is necessary to look at the theory of default. The third part discusses Dworkin rights on the default. Dworkin's critique of the normative legal positivism method is to find a theory of legal positivism default. Dworkin rights on default from the acceptance of the argument characteristics of Rawls' theory of justice, and accepted on the basis of further analysis and extension, explore Rolls not words the characteristics of its reasoning behind deeper the default. Dworkin extends derived from the reflective balance, the social contract, the original state of these three demonstration characteristics of Rawls 'theory of justice, Rawls' theory of justice is the most fundamental of default under construction mode \the right, which is the most basic value of Rawls' theory of justice, Dworkin accept, as rights on default. The fourth part of a three-part argument is based, described Dworkin rights theory of unfolds. Dworkin's analysis from three directions: the concept of rights, the principle of legal system, the judge's personal political and moral beliefs and social expand their rights theory of argumentation. First, in the direction of the concept of rights analysis: Dworkin from two directions to explain the \Second, the legal principles of system-oriented, Dworkin establish each individual authority level, the principles of justification for each precedent for this authority level principles provide justification for other precedent consistent for any one principle, this principle in each authority level, to be consistent with this principle before and after the higher authority level, so construction of a seamless web of legal principles. Third, in the judge's personal moral and social, political and moral-oriented, Dworkin emphasizes its trial theory simply does not provide the judge to choose between the political beliefs of its own political convictions and the judge held that the social problem, on the contrary, social moral, legal and social systems, so the precedent of political morality, and the judge must rely on their own judgment to decide which contains the sum of the principles of social morality, not members of the society are the competing claims of social morality, but according to their respective advocates each competing claims. The fifth part of the conclusion. Dworkin and legal positivism controversy began in the discretion of the judge's judicial controversy exists, this article the two demonstration logical principle on rights theory Figure show a the Dworkin pre-law theory critical legal positivism of discretion rights two arguments logical path, and pointed out that this logic of argumentation change is proposed principle theory, Dworkin by Rawls, published in 1971, \Sri Lanka default, and extending its default, and thus further develop their rights theory. From the principle of theory to the theory of rights, Dworkin construct a consistent \Rights theory described is an explanation of the U.S. legal system, but the reality of China also has a very large reference. Dworkin's rights theory produce rapid changes in American society and law theory as a normative oriented utilitarian thinking dominant period, as a sense of social responsibility and historic mission of intellectuals, Dworkin emphasize that era ignore the individual rights of the dominant theory of law, to a certain extent. More than thirty years in mainland China is also undergoing a huge transformation, rapid economic development, expanded individual rights of the people, the government has to some extent already aware of the law is not just a tool of the ruling class, the laws have to be more large degree of protection of individual rights, the sacred rights. And as a person, as a citizen, has what rights and why have the right, Dworkin given an explanation, it is worth the the Chinese Social Research and Reference.

On Dworkin’s Rights Thesis

Abstract

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