Su rehabilitación del no-saber en la actual Teoría del Derecho

Abstract

T he Dw or k i n - B lu ff : R eha b ilitatio n o f N o n - K n o w led g e as a “N e w ” T heor y o f L a w . This study offers some basic remarks on the principal m ethodolo g ical theses of Ronald Dworkin. However, it does not seek primarily to ‘refute’ him, for this indeed is unnecessary given (i) the superficial level at which his reasoning proceeds and (ii) the banal character of his conclusions. Four issues in particular are treated: ( a ) Dworkin adds virtually nothing to the existing corpus of knowledge in Legal Theory; indeed, he operates well below the level of existing knowledge (even in English ! ), essentially ignoring it and disregarding almost all the basic works dealing with the subjects he considers. ( b ) His theses are essentially based on an old commonplace, the B asic L e g al My th : “ O n e Right Answer”; and he stresses that jurists would arrive at such an answer by means of a typical rationalist fantasy, a ‘constructive model’, which derives from the mirage of a perfectly unitary system provided by the national law as a whole (“the principle of unity in law”). ( c ) His basic line of argument amounts to a rehabilitation of a naive realism for legal studies, mainly built upon the ordinary word-naturalism and the faith on a “heaven” of legal ideas (rules, principles, etc.); he commends such an approach as the ultimate method of knowing what law really is (“taking it seriously”). ( d ) It is difficult to see how Dworkin’s international renown could result from the content of his writings: essentially, it must derive, at least outside the Anglo-Saxon world, from the “Vincent effect” (the following of fashion). It is not worthwhile to add yet further observations on those “new” dresses, which have given rise to such meticulous commentaries within Vincent’s Empire; rather we should break the silence over the fact that its Emperor wears no clothes at all ! [Trad.: Prof. Bernard S. Jackson, Liverpool]