Lessons from Waluchow: Necessity, Desirability, and Intelligibility of (Weak) Judicial Discretion

In my contribution to Wilfrid J. Waluchow’s festschrift, I revisit some of his outstanding contributions to the field of legal philosophy and legal theory, including his living tree constitutionalism, which has its roots in his inclusive positivism. I agree with him that the controversial practice of judicial review is justifiable since it is neither merely compatible with our so called constitutional or liberal democracies, nor contingent, but necessary to further the community’s constitutional morality and its true fundamental moral commitments. As Waluchow acknowledges: “Judges are not… being asked to decide on the basis of their own best judgments concerning the demands of moral truth. Rather they are being asked to decide on the basis of their best judgments as to the democratic community’s best judgments concerning the demands of moral truth.” Moreover, I disagree with him that there is: “No way of telling, among the various reasonable answers offered, which is right, or whose answer is best—or even better.”