Some Issues Concerning Waluchow’s Early Critique of Dworkin in Inclusive Legal Positivism

Professor W.J. Waluchow’s Inclusive Legal Positivism (1994) is still one of the most insightful and robust defenses of inclusive legal positivism ever written. It is a landmark in all theoretical debates concerning the matter. The book’s central issues and arguments have stayed at the core of the dominant debate on legal theory over the last 20 years, at least in the Anglo-Saxon tradition. It represents one of the most thoughtful responses to Ronald Dworkin’s legal theory and also to his challenge first presented in “The Model of Rules,” that of reconciling the fact that moral standards heavily impact adjudication with the legal positivist premise that law is grounded exclusively in social practices (and not moral values). A related consequence of this challenge is a methodological dispute concerning the descriptive/normative nature of the theory of law that has drawn the attention of many philosophers in recent decades. Even if some of his criticisms do not fully resonate with every reader, they still represent a standard for the questions that serious legal scholars must face in order to position themselves in the contemporary debate.