Waluchow and Dworkin’s Disagreement on Legal Theory, Precedent and Adjudication: A Family Affair

In this chapter, I address some of the criticisms of Dworkin that Waluchow raised in his book Inclusive Legal Positivism—in particular, (i) the response to Dworkin’s methodological contention that jurisprudence should be regarded as a first-order interpretation of the law and (ii) the contention that Dworkin’s “law as integrity” provides a deficient description of the practice of precedent, inasmuch as it does not distinguish between theories of law and theories of adjudication and creates a set of puzzles that cannot be resolved with Dworkin’s interpretive account of the legal practice. In response to Waluchow, I argue that, regardless of their methodological disagreements, law as integrity and inclusive legal positivism are similar descriptions of the social practice of law, and that the former can also provide a sound theory of precedent and adjudication. The chapter is followed by an Appendix in which I consider Waluchow’s more recent accounts of constitutional interpretation and political morality. In the Appendix, I offer a pragmatic-inferentialist interpretation of Waluchow’s common law constitutionalism and argue that Waluchow may have reasons for dropping the distinction between first-order and second-order judgments about moral norms.