Inclusive Legal Positivism

Inclusive Legal Positivism

Inclusive Legal Positivism

Inclusive Legal Positivism

Synopsis

This book develops a general philosophical theory about the nature of law and its relationship with morality called inclusive legal positivism. In addition to articulating and defending his own version of legal positivism, which is a refinement and development of the views of H.L.A. Hart as expressed in his classic book The Concept of Law, the author clarifies the terms of current jurisprudential debates about the nature of law. These debates are often clouded by failures to appreciate that different theorists are offering different kinds of theories and attempting to answer different questions. The clarity of Waluchow's work will help to remove the confusion often present in jurisprudential debate.

Excerpt

In the preceding chapter we introduced Ronald Dworkin's distinction between the grounds and the force of law. We noted his suggestion that whatever a legal-grounds theory identifies as law will almost always be conceived by its author as justifying the use of state coercion. This led us to examine Dworkin's theory of interpretive conceptions of law and to draw several distinctions ignored in Dworkin's account. We saw how value can enter legal theories in a wide variety of ways without their being turned thereby into attempts to justify coercion.

In this chapter I wish to give further consideration to Dworkin's distinction between the grounds and the force of law and argue that, while on the right track, it needs to be developed and fleshed out more precisely in ways apparently not contemplated by Dworkin. I shall expand upon the intuition that the question 'What is the present law on this matter?' is logically distinct from questions concerning how citizens and judges should, both morally and, in the case of judges, legally, respond with respect to that law. As will be seen, this is a distinction which applies not only in cases where the law is wicked and disobedience is called for; it also seems to apply in very ordinary cases in which judges depart from authoritative precedent.

In section 2 it will be argued that we should distinguish carefully between the law and what I shall call its 'institutional force'. This is a distinction to which Dworkin's and other theories of law are insufficiently sensitive but which ought to be accommodated within a plausible theory of law. In illustration of this point we shall examine some rather peculiar and troublesome difficulties to which Dworkin's theory is led, difficulties which seem traceable in part to its failure to respect the difference between law and its institutional forces. These may not be problems which are fatal to Dworkin's . . .

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