드워킨의 법철학 사상 = Ronald Dworkin's Conception of Law

다국어 초록 (Multilingual Abstract)

Ronald Dworkin is one of the most influential legal philosophers of the second half of 20th century. He shed light on the modal differences between principle and rule on the one hand and policy on the other. He also elucidated the right to win a case a party has even in a hard case that can be found on the basis of principle rather than policy or of any other discretion judges are supposed to have(so-called right thesis). He expanded his study to contemporary themes of political philosophy in which Rawls' conception of justice as fairness was largely discussed, and proposed an alternate approach to Rawls', that is, a conception of liberal equality without original position and veil of ignorance.
In this article Dworkin's conception of law as integrity elaborated in his book Law's Empire is described and examined. He finds that law is conceived universally as a gravitational relationship of past political decisions upon the rights of parties to win their cases today, so he assumes that it may well be called a concept of law. And he analyses three attitudes or conceptions of the concept of law accepted in that way : Conventionalism, Dworkin's unique interpretation of Harhan version of legal positivism, is weak in that it ignores the persistent interests of lawyers in the past decisions even in hard cases. And legal pragmatism, Dworkin's interpretation of american legal realism, is not suitable for contemporary legal practiecs, because it has no reason to rule out so-called checker board rulings, that is, incoherent rules admitting contradictory decisions in a case. He proposes alternative conception of law as integrity, which conceives law, to speak figuratively, as a seamless web, as a totalilty of (political) decisions with principled consistency and coherence. He supposes constructive interpretation to weave integral or seamless texture of law, as chain novelists produce a coherent novel. On this theorctical basis, he illuminates several important philosophical and methodological issues of legal theory, such as finding decision in hard cases, justification of obligation to obey the law and the meaning and role of equality in jurisprudence.

목차 (Table of Contents)

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• Abstract