|Rawls I 349
Laws/rules/Dworkin, R./Rawls: whether our rights and duties as citizens or also rules of the game are connected with moral duties is a question that can be determined independently of the content of these rules. This also applies if the standards used by judges and others to interpret the law remind of or are identical with the principles of law and justice. For example, in a well-ordered society, the two principles of justice (See Principles/Rawls) may be applied by courts to interpret the parts of the Constitution that deal with freedom of thought and consciousness as well as the protection of equal rights (See Ronald Dworkin, "The Model of Rules", University of Chicago Law Review, vol. 35 (1967) esp. pp. 21-29.)
Rawls: then there is still a difference between what law dictates and what justice demands. For example, the rule of keeping a promise determined by conventions is not to be confused with the principle of fiduciary duty (which is a special case of the principle of fairness).
This principle is only hypothetical. All we need is for it to be followed. We assume that a fair practice exists.
- - -
Brocker I 595
Law/DworkinVsHart, H. L. A./Dworkin: Hart Thesis: Law and morals form two independent systems of norms. A principle of moral only becomes part of positive law through an ultimately conventional rule of cognition. See Law/Hart: Division of legal rules: a) Rules of action, b) Rules for the creation of rules. (1)
Dworkin: Thesis: Any attempt at conceptual definition and description of law inevitably involves us in normative questions of justification.
DworkinVsHart/DworkinVsPositivism/DworkinVsLegalPositivism: law should not be reconstructed as a system of rules. In particular, it cannot be understood as a system of primary and secondary rules (rules via rules). ((s) Background: H. L. A. Hart was influenced by rules of the late Wittgenstein when setting up a system. (See Rules/Hart, Law/Hart).
Jurisprudence/Dworkin: When judges decide on rights and duties, they consider not only rules but also objectives and principles. While objectives such as the promotion of social welfare belong primarily to the level of legislation, principles are particularly relevant at the level of finding justice. (2)
Brocker I 596
Law/DworkinVsHart: 1. law cannot be distinguished from other norms by means of a conventional rule of cognition. There is no such rule. The dispute among lawyers does not even stop at the foundations and limits of law.
2. Law is not logically independent of morality: moral content comes into law in the form of principles. (3)
Brocker I 598
3. Dworkin criticizes the idea of strong judicial discretion as it follows from Hart's rule model.
1. Hart, H. L. A., Der Begriff des Rechts. Mit einem Postskriptum von 1994 und einem Nachwort von Christoph Möllers, Berlin 2011.
2. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, p. 56f.
3. Ibid. p. 304
Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018_____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
Taking Rights Seriously Cambridge, MA 1978
A Theory of Justice: Original Edition Oxford 2005
Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018