Dictionary of Arguments


Philosophical and Scientific Issues in Dispute
 
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Law Hart Brocker I 594
Law/Hart: Hart's new definition of the legal concept (Hart 2011) (1) was influenced by Wittgenstein's later philosophy of language: Hart shares with all other positivists the belief that law is a conventional standard order: it is not the content but the institutional 'family tree' of a norm that shows whether it belongs to law. Problem: the right to normative validity should also be covered.
Solution/Hart: Construction from the participant's perspective: a two-tier system of rules.
Rules/Hart: give addressees justifying reasons for action. Their actual validity depends on whether a sufficient number regard them as internally binding.
a) Rules that limit our freedom of action
Brocker I 595
b) Rules that deal with rules of the first kind: how can legal rules be created, amended and invalidated? Example "rule of recognition": Whether a rule belongs to the law depends on it. It allows us to distinguish valid from invalid legal norms. However, it itself has no normative basis. It stands and falls with the recognition of the community. It follows that law and morality form two independent systems of norms. A principle of moral only becomes part of positive law through an ultimately conventional rule of recognition. DworkinVsHart: see Law/Dworkin.
Brocker I 598
Hart's rule model follows an idea of strong judicial discretion. For Hart, the law always has an "open structure". (2) In "hard cases", according to Hart, judges must even use extra-judicial measures to justify their judgments. DworkinVsHart: that makes judges substitute legislators. They are thus competing with Parliament. Democratic-theoretical reasons speak against the idea of strong judicial discretion.
Solution/Dworkin: interpretation model of law. See Interpretation/Dworkin.
Brocker I 600
HartVsDworkin: Hart can show that his rule term is actually wider than that of Dworkin, thus there is also room for Dworkin's so-called objectives and principles - which Dworkin later admits. (3) Moral/Hart: Hart allows the possibility that moral arguments decide what applies legally. However, they cannot play this internal legal role simply because of its possible substantive correctness. They can only play it as far as the conventional rule of recognition provides for it. (4) The law can include moral content, but does not have to.
DworkinVsHart: for Dworkin, to be and to shall play with necessity in the interpretation of the law, because according to Dworkin the law is continuously interpretative, i.e. has to get along without a conventionalist anchor point.


1. Hart, H. L. A., Der Begriff des Rechts. Mit einem Postskriptum von 1994 und einem Nachwort von Christoph Möllers, Berlin 2011.
2. Ebenda S. 150-152.
3. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, S. 111-119. 4. Coleman, Jules L., »The Rights and Wrongs of Taking Rights Seriously«, in: Faculty Scholarship Series, Paper 4204, 1978, S. 897.


Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018


Brocker I
Manfred Brocker
Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018
Legal Positivism Dworkin Brocker I 594
Legal Positivism/DworkinVsLegal Positivism/DworkinVsUtilitarianism/Dworkin:[Legal] positivists and utilitarians are united by their opposition to the idea of natural, morally predetermined rights for the state. Positivists reject them because they attribute all normative facts of the law to social facts such as legislation and judicial further training in law. Utilitarians deny them because their last criterion is the social (overall) benefit. Against both perspectives, Dworkin wants to defend a law-based theory to which his book title refers.
Brocker I 596
Legal Positivism/DworkinVsPositivism/DworkinVsHart, L. H. A.: Dworkin rejects a system of rules like Hart's: see Rules/Hart, Law/Hart: instead, one must distinguish between law and principles. ((s) Thus Dworkin is influenced by Kant). Rules are either valid or not - however, principles can collide without at least one of them having to be invalid. Principles/Dworkin: have a certain weight and indicate in which direction arguments point. (1)
Brocker I 599
DworkinVsPositivism: no description of law is possible that does not include judgmental judgements. For illustration, Dworkin introduces the character of the talented judge Hercules, who knows all the important institutional facts of law and its history, as well as all principles and goals. This allows him to make an accurate assessment of the law in an overall context. Justification/Dworkin: thesis: the justification of law in a matter of best available arguments is substantial in nature. Dworkin therefore sees no problem in the fact that his ideal judge is an isolated hero who apparently interprets the law monologically.
VsDworkin: siehe Michelman 1986 (2), 76; Habermas 1994 (3).
Jurisdiction/Dworkin: Responsible judges, according to Dworkin, do not succumb to the temptation to seek reasons and points of view outside the law just because so far no article of the constitution, no legal text and no explicit judgment provide authoritative information on a difficult case.
Brocker I 600
Legal PositivismVsDworkin: a positivist could argue that Dworkin only wants the American legal system to appear in the most positive light possible, but his approach is unsuitable for giving general assessments of legal systems, such as today's Iranian legal system. Dworkin's approach is unsuitable because it already presupposes that a legal system must embody rational contents such as the idea of individual rights
Brocker I 601
against the state. However, this is not a conceptual characteristic of law, but a fragile and in fact not generally recognised achievement of legal history.

1. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, S. 58-64
2. Michelman, Frank I., »The Supreme Court 1985 Term – Foreword. Traces of Self-Government«, in: Harvard Law Review 100/1, 1986, 4-77.
3. Habermas, Jürgen, Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats, Frankfurt/M. 1994, S. 272-276.


Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018

Dworkin I
Ronald Dworkin
Taking Rights Seriously Cambridge, MA 1978


Brocker I
Manfred Brocker
Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018
Principles Dworkin Brocker I 596
Principles/Dworkin: Rules are either valid or not valid - however, principles can collide without at least one of them having to be invalid. Principles/Dworkin: have a certain weight and indicate in which direction arguments point. (1)
Moral content comes into law in the form of principles. (2) Morally meaningful constitutional concepts such as "equality" or "human dignity", however, are general and substantially controversial. We do not have unanimously accepted criteria for their correct or incorrect use.
Brocker I 599/600
DworkinVsHart: while Hart insists on the conventional nature of law (see Law/Hart), Dworkin refers to principles. See Legal Positivism/Dworkin. HartVsDworkin: see Law/Hart.
Brocker I 601
Principles/Dworkin: For Dworkin there is a close connection between principles and rights: The valid claims of individuals emerge from principles (3). They limit the possibility for the state to violate individual interests in the name of collective objectives. While collective objectives are aggregative, rights are distributive: They protect individuals with regard to fundamental and central interests.
Brocker I 595
Utilitarianism/Principles/DworkinVsUtilitarianism/Dworkin: Arguments of principles express the moral claims to validity that play a role in law. From them
Brocker I 596
individual rights emerge that outdo collective goals in conflict situations; this thesis points to Dworkin's normative confrontation with utilitarianism. (4)

1. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, S. 58-64
2. Ibid. p. 304
3. Ibid. p. 146
4. Ibid. p. 56f.

Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018

Dworkin I
Ronald Dworkin
Taking Rights Seriously Cambridge, MA 1978


Brocker I
Manfred Brocker
Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018
Rights Dworkin Brocker I 597
Rights/Dworkin: Thesis: The rights are not something finished that we would discover. Rather, we win them by means of an argumentative mediation and linkage of as many of our central beliefs as possible. Dworkin calls this "constructive interpretation". (1) Interpretation/Dworkin: does not deal with moral rights; these form a background on which courts have to decide on the existence of concrete institutional rights.
Legal Rights/Dworkin: are creatures of both history and morality. (2)
StavropoulosVsDworkin: this gives the impression of a hybrid ((s) two-part) theory in which the principles are responsible for the moral, positivism for the historical part. (3) Problem: the two ends of the legal justification would then be unconnected.
DworkinVsVs: it is about a rational reconstruction of law as a whole. (Dworkin 1986) (1).
Brocker I 601
Rights/Individuals/Dworkin: Rights always protect the individual with reference to fundamental and central interests. Dworkin does not mean to say that all rights absolutely apply as well as the prohibition of torture. The fundamental point is again a logical one: rights only play their own normative role if they outdo collective goals in cases of conflict. Otherwise, any justification could be directly related to the objective (4). Similarly, rights would be meaningless if they never authorized individuals to break the law. Also formally correctly created,
Brocker I 602
indeed even legal norms confirmed by the supreme court could nevertheless be wrong, because they violate individual rights. See Civil Disobedience, see Civil Rights/Dworkin. This means, however, that civil rights activists do not necessarily have to invoke reasons of conscience in order to break the law. They can argue that the rules they violate are actually illegal because they violate existing rights (5).



1. Ronald Dworkin, Law’s Empire, Cambridge, Mass./London 1986.
2. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, S. 153
3. Stavropoulos, Nicos, »Legal Interpretivism«, in: Stanford Encyclopedia of Philosophy, 2014, 〈https://plato.stanford.edu/entries/law-interpretivist/〉, letzter Zugriff 16. 02. 2017.
4. Dworkin 1990, S. 161f.
5. Ibid. p. 349-352.
Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018

Dworkin I
Ronald Dworkin
Taking Rights Seriously Cambridge, MA 1978


Brocker I
Manfred Brocker
Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018
Utilitarianism Dworkin Brocker I 601
Utilitarianism/Rights/Dworkin: for utilitarianism, maximizing the overall well-being is the central objective. Rights, for example in the form of ownership guarantees, can also benefit the overall welfare. It can never be ruled out that sacrificing fundamental individual interests of individuals or groups could increase the overall benefit. DworkinVsUtilitarianism: Rights always protect the individual with reference to fundamental and central interests. Dworkin does not mean to say that all rights absolutely apply as well as the prohibition of torture. The fundamental point is again a logical one: rights only play their own normative role if they outdo collective goals in cases of conflict. Otherwise, any justification could be directly related to the objective (1).
DworkinVsUtilitarianism: central objection: Utilitarianism can also take external preferences "impartially" into account such as discrimination against blacks. (2)
Problem: The purely aggregative ((s) summing up) thought of the best possible satisfaction of all possible preferences of all possible people knows no distinction between relevant and irrelevant, acceptable and unacceptable preferences.
PerfectionismVsDworkin: there are many kinds of external preferences that should be exempted from Dworkin's criticism: For example, external preferences such as taking sides with members of disadvantaged groups to which you yourself do not belong. (3)
Brocker I 605
LadwigVsDworkin: Dworkin, when he wrote the essays gathered in Civil Rights taken seriously, still believed he could draft an ethically completely neutral theory of rights and justice (so also Dworkin 1985 (4)). This may explain his strange assumption that the logical distinction between personal and external preferences is sufficient for criticism of utilitarianism, regardless of their content. DworkinVsDworkin: In later writings (Dworkin 1990b (5); 2011 (6)), however, Dworkin professes an ethical basis of his liberalism. The organizing idea behind his ever-increasing attempts to recognize unity in the world of values is now dignity.


1. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, p. 161f.
2. Ibid. p. 382-385
3. Cf. Coleman, Jules L., »The Rights and Wrongs of Taking Rights Seriously«, in: Faculty Scholarship Series, Paper 4204, 1978, p. 916f. 4. Ronald Dworkin, , A Matter of Principle, Oxford 1985.
5. Ronald Dworkin. »Foundations of Liberal Equality«, in: The Tanner Lectures on Human Values, XI, Salt Lake City 1990 (b), 1-191.
6. Ronald Dworkin, Sovereign Virtue. The Theory and Practice of Equality, Cambridge, Mass./London 2002.


Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018

Dworkin I
Ronald Dworkin
Taking Rights Seriously Cambridge, MA 1978


Brocker I
Manfred Brocker
Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018