| 释义 |
interpretive theory of law
A theory advanced by US legal philosopher Ronald Dworkin (1931–2013) that rejects legal positivism on the principal ground that a separation between law and morals is impossible. Law, Dworkin argues, consists not merely of rules, as legal positivists generally claim, but also of what he calls “non-rule standards”. When a court has to decide a hard case (i.e., one to which no statute or precedent applies), it will draw on these moral or political standards in order to reach a decision. According to Dworkin, adjudication is and should be interpretive: judges must decide hard cases through an interpretation of the political structure of their community as a whole, from the most profound constitutional rules to the details of, for example, the law of tort or contract. A successful interpretation is one that justifies the practices of the judge’s society: it must “fit” with those practices in the sense that it coheres with existing legal materials defining the practices. Moreover, since an interpretation provides a moral justification for those practices, it must present them in the best possible moral light. In other words, the principles to which a judge must appeal will include his own conception of what is the best interpretation of the network of political institutions and decisions of his community. He must ask whether his judgment could form part of a consistent theory justifying this complete network. There is always one “right answer” to every legal problem; it is up to the judge to find it. This answer is “right” in the sense that it coheres best with the institutional and constitutional history of the law. Legal argument and analysis is therefore interpretive in nature. |