本帖最後由 felicity2010 於 2014-11-3 11:49 AM 編輯 5.39.217.764 z, n) y" P5 q+ m4 Z8 M2 J* K1 P+ L
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Excerpts from Ronald Dworkin. Jurists: Profiles in Legal Theory by Stephen Guest
/ \; p7 E+ p' Q: O7 X. V! N K" sObjectivity in Law and Moralitytvb now,tvbnow,bttvb8 |+ M2 i8 h* D0 v4 {
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The problem of objectivity is what many people find as the major stumbling block to understanding Dworkin’s theory. It comes as a surprise to people that Dworkin thinks there are right answers to evaluative, and therefore moral, questions. Nevertheless, most people think there are right answers to such questions. People disagree whether abortion is morally permissible, for example, and their disagreement is just about what is right. Those who think it wrong and those who think it right at least agree that there is a“right or wrong” about it. In what follows, unlike the pattern of the rest of the book, I have traced Dworkin’s arguments in chronological order. Not only do we get a fuller understanding but there is pedagogic interest in the way his present thesis—that truth in law is dependent on nothing more mysterious (or less mysterious) than correct legal argument—was developed from two early ideas. The first lies in his attack on Devlin’s idea that public opinion was a criterion of morality and the second lies in his idea that there were practical reasons why the positivists would choose provability—or demonstrability as he used to call it—as a criterion of truth in law (e.g., accordance with a rule of recognition).
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) X; r5 y8 C& t4 }* y5.39.217.76LORD DEVLIN AND TAKING A MORAL POSITION
( Z6 ]# _' Q a: T, k! Ktvb now,tvbnow,bttvbDworkin’s first arguments about the objectivity of moral reasoning arose in his criticism of Lord Devlin’s thesis that, in certain instances, the state has the right to use the criminal law to enforce matters of morality. The state could gauge what was a matter of morality by using the ordinary juryman’s view (that of the man in the “Clapham omnibus”) based on his deep feelings of intolerance,indignation and disgust.” Devlin had put forward this thesis in his famous lecture of 1958. Unlike most of Devlin’s critics, Dworkin sees merit in the general thesis because of the direct connection it makes between democracy and morality. The idea of a consensus permitting different moral views is genial to democracy in which each individual should enjoy equality of respect; the Clapham man’s vision contains an implicit egalitarian premise that the ordinary man’s views count in determining our moral environment.
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Dworkin analyses the assumptions that Devlin makes about the nature of morality.Dworkin thinks that the idea of a “public morality” is more complex than the description of a juryman’s feeling at a particular time can allow, and that Devlin is wrong to suppose that an accurate gauge of it could be gleaned from crude expressions of public feeling. Instead, public feeling, or juryman outrage,is subject to a rational “sieve” which sorts out mere expressions of feeling from expressions of a genuine “moral position.”
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z0 w3 P# a8 H) UWe must, for example, produce reasons for our views.3 They do not have to be particularly abstract or philosophical but the expectation is that we should at least understand that there are reasons for what we claim. (“I hate gays.”“Why?” “Oh, no reason.”) And prejudiced views are not moral views.
2 j. I2 b( D, _- u& TThe person who says, “I hate gays because they are sissies” fails to express a genuinely moral position. Naturally, this is not to say that what counts as a prejudiced point of view will never be controversial; you and I may disagree whether our different views on positive discrimination, for example, are based on prejudice. The common view that “everyone is prejudiced” is not at all helpful, either, for that just means that we all have different views, some right and some wrong. Mistakes of fact, too, do not qualify as moral reasons.To use Hart’s well-known example, it was wrong of the Emperor Justinian to have said that homosexuality was morally bad because it caused earthquakes, for there is just no evidence to show any connection between homosexuality and earthquakes. Emperor Justinian’s view did not constitute a moral position:there is no factual evidence upon which his view could conceivably have been based. (I assume he meant that being gay incurred the wrath of God, who caused earthquakes, but if so, there are still problems with the view.)+ E0 T3 d4 J( J1 D: [5 T
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# ~* Y1 c# U# P& \公仔箱論壇Mere repetition of a view is insufficient to establish a moral position,too. The person who says that homosexual conduct is wrong because “a friend told him so” supplies an insufficient reason since we expect the genuine expression of a moral view to be one which a person endorses himself to be true. That is not to deny that we can learn from others, or that there might be a special category of religious reasons of an authoritative sort. Emotional reactions also are insufficient. “That action makes me sick” is not a sufficient reason since we expect a reason why, and in any case we think that one good way of attacking a moral position as confused is by simply saying that the argument for it is emotive. We tend to think here with persistent emotive statements that the speaker is obsessive, or has a phobia. It is easy to imagine other sorts of disqualifying reasons once we get the idea. The rules of logic must hold some sway, and there are all sorts of subjects about which we just can’t have moral views. You just cannot have moral views about gold, for example, and you can’t consider tempests irresponsible.
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7 U0 |* m1 T- j8 Q: BTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。Dworkin’s chief point is that a community consensus on morality runs deeper than a surface description of what people in fact, at a certain time and in a certain mood, think or feel. Any sensible conception of consensus exists at the level of reason or conviction and crosses surface differences. To those who are suspicious of any attempt to oppose “the common man’s view”with “reason,” it will come as a surprise to learn that Dworkin is not opposed to the ideas both that there is a community morality (democracy, for example)and that the community’s morality should count. “What is shocking and wrong”about Lord Devlin’s thesis, says Dworkin, “is not his idea that the community’s morality counts, but his idea of what counts as the community’s morality.”TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。! x$ A* c+ O# A" H T- Z( p
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CONVENTION AND CONSENSUS AS BASES FOR MORALITY
' J0 {8 s1 H* w* L! `5.39.217.76From his criticism of Devlin, it becomes clear that the difference between a convention and a public consensus is important for Dworkin. In his view, morality is not constituted by public conventions which say conduct is morally required or permitted by the test of what most people think. Otherwise slavery would have been right once, or we would be driven to weak justifications of the wrongness of, say, rape of the form “well, everybody thinks it is wrong.” A consensus instead means a coincidence of the same convictions.
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$ [% L$ f3 s$ W$ Y0 T$ i公仔箱論壇In our community there is a coincidence of independently held convictions that rape is morally wrong. But that fact of consensus is not the reason for thinking rape wrong since we think it is wrong for quite independent reasons, such as assault, dominance, distress, pain . . . the list is long. If rape were wrong by convention, there would be a parroting mistake of the sort I discussed in the previous section. Yet another way of putting it is to say the last reason one would give for saying that rape is wrong would be that everyone thought it to be wrong. That would be a disastrous way to teach children if it were the only way they were taught morality, for example.TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。9 y% v0 S+ V7 d
7 Q- h. M2 V' @* b3 s/ f% oTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。Of course, some conventions provide a reason for behaving in a particular way as, for example, the convention that you take your hat off in church; this, however, turns out to be only the conviction that you should not offend others and you follow the convention in order not to do so. It is not that you follow the rule simply because other people consider that you should. There is, true, a misleading and unimportant sense in which morality is defined by convention, as where we say, “Theirs was a morality of slavery.” The triviality, and danger, of the use of the word “morality” in that phrase becomes clear when we use phrases such as “the morality of the Nazi party was immoral.”The relevant distinction here was drawn neatly by Bentham and Austin between“positive” and “critical” morality; positive morality being social conventions created by man (and hence possibly evil) and critical morality the standards by which those social conventions are judged. Hart later used the distinction in Law, Liberty and Morality against Lord Devlin’s equation of public consensus with morality in order to show that public consensus in itself might harbor prejudice, lack of logic, repetition of views and so on.
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