Competing Legal Positivisms, Methodology and Distinctive Visions of Law

Wil Waluchow was (and is) one of the most significant figures in the “intramural” debate between inclusive and exclusive legal positivism, as well as a prominent figure in many other areas of legal and moral theory. This chapter will consider his contributions to the inclusive-exclusive debate, focusing primarily on one aspect of the debate: whether inclusive legal positivism succeeds in offering a distinctive vision of the nature of law. In the debate with exclusive legal positivism, inclusive legal positivism seems to have an advantage in the area of fit. For example, unlike exclusive legal positivism, inclusive legal positivism has no difficulty in accounting for constitutional judicial review or common law judicial legislation. However, the potential challenge to the inclusive approach is whether this greater fit with our legal practice (and the way we speak within and about our legal practice) is purchased at the cost of diminished significance. The concern is that inclusive legal positivism presents us with a theory of law which tells us very little about law. Throughout his writings, and particularly in his most recent works, Waluchow has responded to the charge of “no distinctive view of law.” This chapter summarizes and evaluates this part of Waluchow’s defense of inclusive legal positivism.