Criticizing Herbert Hart’s positivist theory of hard cases, Ronald Dworkin also turned to an analysis of hard constitutional issues. Starting his criticism with the chapter «Constitutional cases» in his fundamental work Taking Rights Seriously, Dworkin elaborates it in more detail in the book Freedom's law, The moral reading of the American constitution and in other works. The main criticism tool is the theory of «the moral reading» of the constitution developed by Dworkin. Based on it, Dworkin criticizes judicial originalism and textualism, taking the position of judicial activist. Defending the theory, he builds a defense against the argument about the antidemocratic nature of his approach. The theoretical basis of Dworkin’s criticism is his understanding of law as an interpretative entity. This basis is enriched by empirical argumentation: references and Dworkin’s analysis of real constitutional cases. The current essay will examine both criticism itself and its evolution.
The concept of human dignity often encounters criticism, either as too thick or too thin. However, firstly, if one takes the non-positivistic standpoint, then it is to be admitted that the legal normativity of human dignity can be justified and therefore strengthened by its moral correctness. Secondly, it would be better observed that the image of man has dual dimensions, that is, both the individual and the social dimension. From the individual perspective, in order to understand adequately the formula of ‘man as an end in itself’ and hence the human dignity as an intrinsic value, the key lies in the differentiation as well as connection between principium diiudicationis and principium executions, between will and choice (Willkür), and those between homo phaenomenon and homo noumenon (that is, humanity in the personality). Based on this understanding of human dignity, the rights of man, the free association of citizens as well as the criminal justice can be rationally justified.
Legal scholars are facing a new trend: the growing belief that originalism and legal positivism not only overlap but complement each other. The issue has become urgent: several EU courts have recently endorsed an originalist approach in leading cases, by ascribing a key-role to historical argument; the appointments of Neil Gorsuch and Brett Kavanaugh to the US Supreme Court have already begun to prompt a return to discussions over this issue.
Originalism includes a constellation of theories whose core tenet holds that the main task of judges called upon to interpret a constitution is to give effect either to the intentions of the framers and ratifiers, or to the public meaning. An increasing number of scholars endorse a strong connection between originalism and legal positivism. Is the connection of originalism with legal positivism conceptually possible? What sort of benefits would it yield? These are the questions I intend to answer with this paper.
In this paper, the Author will submit to critical analysis Hans Kelsen’s Grundnorm as a penetrating explanation of legal orders at the constitutional level. The Author will suggest that Hans Kelsen himself, in the late period of his work, considered that the very concept of a basic norm is self-refuting. To be sure, if one relies on the relation between Kelsen’s approach and Vaihiniger’s theory, the basic norm could be understood as a fiction. Fictions, in turn, can be understood as a vehicle of thought. However, a fundamental question remains: Does the basic norm still offer an insightful theoretical tool for grasping the highly constitutionalized legal order? Would this fiction hold, if there are good reasons to belief that Kelsen himself decided to revise his position? Does the Kelsenian, positive account still hold in the age of global constitutionalism?
The theory that Hans Kelsen expounded in his main works is a general theory of positive law. Positive law is for Kelsen always the law of a definite community. To attain a scientific exposition of those particular orders constituting the corresponding legal communities is the design of the general theory of law. This theory, resulting from a comparative analysis of the different positive legal orders, gives the fundamental concepts by which the positive law of a legal community can be described. The topic of a general theory of law is the legal norms, their elements, their interrelation, the legal order as a whole, its structure, the relationship between different legal orders, and, finally, the unity of the law in the plurality of positive legal orders. Does the Kelsenian model still apply to 21st century democracies?
The Author will deal with the application of particularism to constitutional reasoning, considering the quandaries that this approach poses for the principle of generality endorsed by legal positivism. Further details about the paper are yet to be announced.