مقالات جدید در مورد مناظرهٔ فیش-دورکین (حقوق و دلیل عملی)

This book considers the seminal debate in jurisprudence between Ronald Dworkin and Stanley Fish. It looks at the exchange between Dworkin and Fish, initiated in the 1980s, and analyses the role the exchange has played in the development of contemporary theories of interpretation, legal reasoning, and the nature of law. The book encompasses 4 key themes of the debate between these authors: legal theory and its critical role, interpretation and critical constraints, pragmatism and interpretive communities, and some general implications of the debate for issues like the nature of legal theory and the possibility of objectivity. The collection brings together prominent legal theorists and one of the protagonists of the debate: Professor Stanley Fish, who concludes the collection with an interview in which he discusses the main topics discussed in the collection. Table of Contents List of Contributors Introduction PART ONE: LEGAL THEORY AND ITS CRITICAL ROLE 1. Reasoning Within and About (Legal) Practices I. Introduction II. Dworkin on Arguing within a Practice III. Fish on Arguing within a Practice IV. Compare and Contrast 2. Fish versus Dworkin: Sound and Fury, But ...? I. Introduction II. The Fish/Dworkin Exchange in a Nutshell III. The Fish/Dworkin Exchange: A Post-Mortem IV. Conclusion 3. Explaining Us to Ourselves I. Do Judges Need Theory? II. Some Misunderstandings III. Stanley Fish on the Issue of Constraint IV. Pragmatism as Default V. Dennis Martinez VI. Who Exactly Needs Theory? VII. From the Implicit to the Explicit VIII. Disagreement IX. Scrambled Fish 4. Law, Reason and Celestial Music I. Introduction II. Hart and the Gunman III. Interpretation IV. Laws and Reasons V. Force and Reason 5. The Game Goes On: Why Legal Theorists Can Never Admit that Stanley Fish is Right I. Introduction II. Stanley Fish and Legal Theorist III. The 'Problem' with Stanley Fish IV. Conclusion: Could the Law Do without Theory and its Other Rhetorical Trappings? PART TWO: INTERPRETATION AND CRITICAL CONSTRAINTS 6. Reenchanting Practice: Stanley Fish and the Challenge of Virtue Ethics I. Introduction II. The 'Engaging in a Practice' V. 'Discoursing on a Practice' Distinction III. The Distinction as Applied to Judging: Thinking within a Practice and Thinking with a Practice IV. The Virtue Ethics Challenge to Fish's Distinction V. Contesting the Claim of Atheoretical Generation VI. Contesting the Claim of Inauthentic Explanation VII. Conclusions 7. The Law in Quest of Integrity: Interpretation, Invention and Internal Critique I. Introduction II. Archimedean Jurisprudence III. Protestant Interpretation and Legal Practice IV. Conclusion 8. The Relevance of Literary Interpretation I. Introduction II. A Brief Clarification of Terminology III. The Analogy between Literary and Legal Interpretation IV. What is the Role of the Analogy? V. A First Disanalogy VI. The Literary Interpretation Premise VII. The Second Disanalogy VIII. A Last Amended Argument by Analogy 9. Clash of the Titans: Hercules vs Dennis Martinez (Reflections on the Fish-Dworkin Debate) I. Introduction II. The Problem: Where's the Beef, Exactly? III. The Diagnosis: Bosom Buddies, After All IV. The Solution: Get Back to the Facts of Life and Law V. Conclusion: How Will I Know? 10. Social, Moral or Ameliorative? Understanding Constraints on Legal Interpretation I. Introduction II. Fish's Methodology III. Three Modes of Interpretation IV. Fish's Arguments against Constructive Interpretation V. Concluding Remarks PART THREE: PRAGMATISM AND INTERPRETIVE COMMUNITIES 11. Revisiting the 'Fish-Dworkin Debate' I. Introduction II. Interpretation III. Interpretation Leads Astray IV. The Vantage Point of the Present V. Conclusion 12. Almost Naturalism: The Jurisprudence of Ronald Dworkin I. Up in the Air, It's All in the Game II. Dworkin's Jurisprudential Pragmatism III. Dworkin for Naturalists? IV. Dworkin's Anti-Naturalistic Turn V. Conclusion: Outside the Game 13. Interpreting Community: Agency, Coercion, and the Structure of Legal Practice I. Introduction II. Interpretation: Rhetoric or Justification? III. Law's Coercion IV. Interpreting Community V. Conclusion 14. Fish versus Dworkin: A Comparison between Two Versions of Legal Pragmatism I. Introduction II. From Metaphysics to Pragmatics: Dworkin Meets Fish III. Narrow and Broad Versions of Philosophical Pragmatism IV. Fish's Instrumental Pragmatism V. A Conventionalist Reply VI. Dworkin's Response to Fish: The Law as a Special Normative Practice VII. Conclusion 15. Making it Objective: Dworkin, Inferentialism, and the CLS Critique I. Introduction II. From Fish's Critique to CLS: Dworkin's View of the Law as a Special Normative Practice III. Inferentialism and the Rational Structure of Normative Social Practices IV. Conclusion PART FOUR: IMPLICATIONS 16. Dworkin, Fish, and Radically Defective Constitutions I. Introduction II. 'Legitimacy' as a Consideration for (Actual) Judges III. Is 'Lawyering' Different from 'Judging'? IV. 'Interpreting' an Unhappy Legal Past V. Focusing on the 'Hard-Wired' Constitution and its Deficiencies VI. Legal Fidelity to Menacing Constitutions VII. Supplementing 'Theory' with Empirical Agreement 17. The Problem of Immoral Integrity I. Interpretivism and Wicked Law II. Interpretive Practice in Nazi Germany III. Fish and Nazi Interpretive Practice IV. Dworkin and Nazi Interpretive Practice V. Flavours of Integrity 18. What Makes Law? Dworkin, Fish, and Koskenniemi on the Rule of Law I. Introduction II. Dworkin on the Rule of Law III. Fish on the Rule of Law IV. Koskenniemi on the Rule of Law 19. Is Hercules a Natural? I. Nature, Custom and Law: A Return to Aristotle II. Accounting for Custom III. Conventionalism, Pragmatism and Integrity: The Illusion of Interpretive Options? IV. Has the Game Changed? Charter Rights and Right Answers V. Dworkin's Empire 20. Interview with Professor Stanley Fish Index